DWT15124

In this Determination the parties are referred to as they were at first instance. Hence, Blue Thunder Fast Food Limited is referred to as the Respondent and Ms Oleniacz is referred to as the Claimant.

Background
The Respondent operates a fast food outlet located in Westport Co. Mayo. The Claimant, who is of Polish Nationality, was employed by the Respondent in the serving of food and related duties. The Claimant commenced her employment with the Respondent in or about November 2011. Her employment came to an end on 20^thJune 2014.

The Complainant presented a complaint to a Rights Commissioner alleging various contraventions of the Act by the Respondent in relation to her employment. The complaint was received by the Workplace Relations Service on 17^thSeptember 2014.

In her complaint the Claimant alleged contravention of the following provisions of the Act: -

• Section 11 (Daily rest periods)

  Section 12 (Rest and intervals at work)

  Section 14 (Sunday premium)

  Section 15 (weekly working hours)

  Section 19 (Annual leave)

The Rights Commissioner found for the Claimant and awarded her compensation totalling €7,000. The Respondent appealed to this Court.

Period Covered by the Claim / Extension of Time
By application of the time limit provided for at s.27(4) of the Act the cognisable period for the purpose of this claim is confined to the six month period ending on the date on which the complaint was presented to the Rights Commissioner. That means that redress can only be provided for such contravention that occurred in the period commencing on 18^thMarch 2014 and ending on 20^thJune 2014 on which date the Claimant’s employment ended.

Section 27(5) of the Act permits the Court to extend time by up to a further 12 months where reasonable cause for the delay is shown. The Solicitor for the Claimant applied to the Court for such an extension. The Court was told that a similar application was made to the Rights Commissioner, although it was not addressed in her decision.

In advancing this application the Court was told that a good working relationship had existed between the Claimant and her former employers until the end of her employment, when it broke down. It was submitted that the amicable nature of the relationship that existed prior to the termination of the employment was an operative cause for the delay coupled with the Claimant unfamiliarity with Irish employment law.

In seeking an extension the Claimant placed reliance on the Determination of this Court in Determination DWT14104 –G and C Takeaway Limited t/a Manor Takeaway v Noura Aboutabit. It was submitted that an extension had been granted in that case based on reasons that are congruent with those relied upon by the Claimant in the instant case.

The Court has read the Determination issued by the Court inG and C Takeaway Limited t/a Manor Takeaway v Noura Aboutabit. The Solicitor for the Claimant is mistaken in his submission that the Court granted an extension of time in that case. The contrary decision was reached and the application was, in fact, refused.

The argument put on behalf of the Claimant in that case is recorded in the Determination as follows: -

• Mr Ciarán Elders, B.L. instructed by Travers & Co Solicitors, on behalf of the Complainant stated that the delay in this instance was due to the proximal relationship between the parties where the Complainant was treated like“one of the family”and had lived with the owners of the Takeaway for an extended period of time. As an example of that strong bond Mr Elders referred to time when the family secured and paid for professional legal assistance for the Complainant between February 2007 and August 2008 when she faced legal issues at the time.

• In line with the position held by the Court in Cementation, it must consider whether reasonable cause has been shown for the delay. It is well settled that it is for a Complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for the delay. In this case the Court notes that the close proximity between the Complainant and the Respondent broke down in 2010 when the Complainant sought to assert her rights and she made enquiries of the Respondent regarding, inter alia, holiday and public holiday entitlements. The Respondent denied her these rights.
  
  In such circumstances, the Court cannot accept that it was not possible for the Complainant to seek assistance and to refer a claim under the Act. Accordingly the Court cannot accept that the grounds advanced by the Complainant for not having presented her claim before 3^rdFebruary 2013 either explains the delay or excuses the delay and therefore, she does not met the standards set down. Therefore the Court must find that reasonable cause has not been shown to justify an extension of the statutory time-limit.

It follows that the period which can be taken into account in this case is that commencing on 18^thMarch 2014 and ending on 19^thJune 2014, when the employment terminated.

Position of the Parties
Practically all of the material facts of this case are in dispute. In the written submission presented on her behalf, the Claimant contended that she was required to work between 45 and 50 hours per week. She claims that she was rarely allowed holidays or time off for public holidays, other than Christmas day. She says that her working arrangements were such that she could not take breaks in the course of her work.

According to the Claimant she worked mostly at night, starting at 7pm and often finishing at 5am or 6am the following morning. She claimed that on occasions she finished work at 2am and recommenced work at 11am on the following morning and worked until 7pm. She claimed to have been paid €10.00 per hour and that she received no additional payment in respect of Sunday working.

The Respondent position is a traverse of that advanced by the Claimant. According to the Respondent, the Claimant’s consistent working hours were 39 per week. The Respondent operated a shift pattern whereby staff either worked days or nights. The day shift was from 11am to 7pm. The night shift commenced at 7pm and finished at 2am except on Fridays and Saturdays when the shop closed at 3am. The Respondent told the Court that the shop never remained open until 5am or 6am.

The Respondent told the Court that the Claimant had ample opportunity to take breaks while at work and that she received all of the holidays to which she was entitled. In the case of Public Holidays, the consistent practice of the Respondent was to provide those who worked on the Holiday with a paid day off in the following week.

The Respondent contends that the Claimant was paid €10.50 per hour and that the 50c was intended to cover the liability to work on Sunday.

The Respondent told the Court that the business was the subject of an inspection by NERA and that no contraventions of the type complained of were identified. A copy of the report of the NERA Inspector was put in evidence. It is noted that the inspection to which this report relates was conducted in September 2014, some three months after the Claimant’s employment ended.

Evidence
Sworn oral evidence was tendered by the Claimant. On behalf of the Respondent sworn evidence was tendered by Ms Karen Ginnelly and Mr Eamonn Ginnelly, who are the proprietors of the business and by Ms Katarzyna Partyka.

The testimony of Ms Ginnelly was in line with the position taken by the Respondent, outlined above. This was corroborated by Mr Ginnelly who also dealt with matters of peripheral relevance. Ms Patyka, who works for the Respondent at the shop in which the Claimant was employed, gave corroborative evidence on the working arrangements in the shop. Ms Patyka worked part-time and her shift pattern was such that her attendance rarely coincided with that of the Claimant.

Records
It is accepted that the Respondent failed to maintain records in the statutory form. Consequently, in accordance with s.25(4) of the Act, the onus is on the Respondent to prove that the Act was complied with in respect to the matters put in issue by the Claimant. The standard of proof is that of the balance of probabilities. That means that the Respondent must show, on cogent evidence, that it is more probable than not that it complied with its statutory duty in relation to these matters. It also means that if the probabilities are found to be equal the burden of proof borne by the Respondent will not have been discharged. (SeeMiller v Minister for Pensions[1947] 2 All E.R. 372)

Conclusions of the Court
In this case there is a total absence of any reliable records in relation to the Claimant’s employment. There are no working time records. The Claimant was paid in cash and she was not issued with payslips. There are no records relating to breaks and no holiday records were maintained. There is a dispute as to the rate at which the Claimant was paid. The Respondent maintains that an additional amount was incorporated in the Claimant’s hourly rate to cover Sunday working. That is nowhere recorded.

The Claimant gave what the Court considered to be reliable evidence to the best of her ability. The witnesses who gave evidence on behalf of the Respondent gave contradictory evidence. Given that the onus of proof is on the Respondent the Court does not accept that the evidence tendered by the Respondent, in the absence of any records or corroborative documentation, goes far enough to rebut that of the Claimant in most aspects of her testimony.

Having reviewed all of the evidence adduced in the course of the appeal the Court has reached the following conclusions: -

Section 11 (Daily rest periods)
It appears that on occasions on which the Claimant attendance hours changed from the night shift to the day shift she was not in a position to avail of 11 hours rest between her finishing time and her starting time on the following day. However, this type of eventuality is expressly covered by s.4 of the Act which exempts the application of s.11 on occasions on which a shift changes. Section 4(1) of the Act provides: -

• 4.—(1) Without prejudice tosection 6,section 11or13or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to insection 11or13or, as the case may be, both those sections.

Having regard to the exemption provided by s.4 of the Act the Court must hold that the Respondent did not contravene s.11 in relation to the Claimant.

Section 12 (Rest and intervals at work)
The Respondent has not satisfied the Court that the Claimant was afforded adequate breaks and intervals at work in accordance with the Act. Consequently, the Court must hold that the Respondent contravened this section in relation to the Claimant.

Section 14 (Sunday premium)
The Respondent has not satisfied the Court that the Claimant’s rate of pay contained an element intended to compensate her for the obligation to work on Sundays. The Court holds that this section was contravened in relation to the Claimant.

Section 15 (weekly working hours)
In her oral evidence to the Court the Claimant stated that her average working hours were 45 per week. Based on that evidence the Court holds that the Respondent did not contravene this section in relation to the Claimant

Section 19 (Annual leave)
The period covered by this claim is from 18^thMarch 2014 to 19^thJune 2014. The leave year commencing on 1^stApril 2013 and ending on 31^stMarch 2014 expired in that period. The decision of the High Court inRoyal Liver Assurance Limited v Macken and ors, Unreported, High Court, Lavan J, 15^thNovember 2002, makes it clear that where a workers does not receive his or her full entitlement to annual leave a contravention of the Act crystallises at the end of the statutory leave year. It is on that date that a cause of action accrues in respect of the full leave year in issue. It follows that the Claimant can maintain a claim in respect of any shortfall in her full entitlement to annual leave in the leave year ending on 31^stMarch 3014.

The Act provides that an employee is entitled to a maximum of 20 days paid leave in a leave year. The Claimant appears to believe that this entitlement should have increased by virtue of the hours that she worked. That is a mistaken view of the statutory provision.

The Court is not satisfied that the Claimant received less than her full entitlement to annual leave in the leave year 2013 – 2014. Consequently, the Court is not satisfied that the Respondent contravened section 19 of the Act in relation to the Claimant.

The Claimant contends that she was owed payments in respect of three days annual leave outstanding in respect of the leave years 2014 -2015 on the termination of her employment in June 2014. However, an entitlement to cessor pay arises under s.23 of the Act. It appears that no claim was made to the Rights Commissioner in respect to s.23 of the Act and not such claim was advanced in the course of the appeal. Consequently the Court cannot make any findings in relation to that section.

Section 21 (Public holidays)
In the period covered by this claim there were three Public Holidays, namely, Easter Monday, May Public Holiday and June Public Holiday.

The Respondent has failed to satisfy the Court that the Claimant received a benefit in respect of those Public Holidays. The Court holds that the Respondent contravened s.21 in relation to the Claimant.

Redress
In light of the findings set out in this Determination the Court has concluded that the appropriate redress in this case is an award of compensation. The Court measures the quantum of compensation that is fair and equitable in all the circumstances as follows: -

Contravention of Section 12

• • The Court upholds the award of €2,000 in compensation made by the Rights Commissioner in respect of this contravention

• • The Court upholds the award of €750 in compensation made by the Rights Commissioner in respect of this contravention

• • The Court upholds the award of €500 in compensation made by the Rights Commissioner in respect of this contravention

Signed on behalf of the Labour Court



Kevin Duffy
13th November 2015______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.