ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001598

Complaint for Resolution:

Dates of Adjudication Hearing: 20/04/2016 & 04/07/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, following referral to me by the Director General of the Workplace Relations Commission (hereinafter ‘WRC’), I inquired into the aforesaid complaint pursuant to Section 27 of the Organisation of Working Time Act 1997, received on 26^th January 2016. I gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were legally represented and a number of witnesses gave evidence on behalf of the Respondent. This complaint was partially heard on 20^th April 2016 and was completed on 4^th July 2016. The Complainant was unable to secure the attendance of a witness in the interim but I am satisfied that nothing turns on any possible evidence proffered. I indicated that I would be placing reliance on relevant statutory provisions and case-law and all written/oral evidence and submissions and documentation have been taken into consideration when coming to this decision.  

Preliminary Objections:

The Solicitor for the Respondent raised two preliminary objections to this complaint which stated on the online form that “the Complainant did not receive breaks” during his employment with the Respondent. Firstly, he submitted that this wording fell foul of the High Court Judgement of Mr Justice Hogan in Health Service Executive -v- John McDermott (2014) IEHC 331 as it was framed as an ongoing complaint and it was therefore statute-barred. Secondly, he submitted that in circumstances where a previous slightly differently worded claim had been submitted and withdrawn before a hearing, that the matter could not be revisited through a further complaint.

In relation to the first objection, I note that time limit provisions of the Payment of Wages Act 1991 referred to in the aforesaid Judgment and also in relation to the Organisation of Working Time Act 1997, being the statutory basis of this complaint, have since been replaced by Section 41 of the Workplace Relations Act 2015. I also note that the wording adopted in the complaint form does not refer to a date outside the requisite six month period before submission on 26^th January 2016. As no grounds for seeking an extension of time due to reasonable cause pursuant to Section 41(8) have been proffered, I am satisfied that as the Complainant left his employment on 4^th September 2015, the applicable time period for consideration of this complaint is from 27^th June 2015 until 4^th September 2015. In relation to the second issue, I am satisfied that in circumstances where the original complaint was not settled, heard or otherwise disposed of, it was open for the Complainant to withdraw his first complaint and submit a similar complaint subject to the requisite time limits.

Complainant’s Submission and Presentation:

The Complainant confirmed that he was employed as a Junior Sous Chef in a Five Star Hotel operated by the Respondent for approximately two years before leaving his employment on 4^th September 2015. He confirmed that he had been unhappy with the hours and money and had been searching for a new job for a year beforehand. He has subsequently taken up employment with a new Hotel where is earning approximately €11,000 more per annum than his previous employment. He had been earning approximately €596 gross per week with the Respondent for a 40 hour week.

The Complainant submitted that during his employment with the Respondent they were continually understaffed and he often had to work alone in the kitchen under pressure. He said that as a result, he never got to take his statutory uninterrupted 30 minute breaks pursuant to Section 12 of the Organisation of Working Time Act 1997. He worked under a Head Chef who was well aware of the situation. He was never told to go on a break as there would be nobody to cover him. Compensatory breaks were never arranged for him at a later stage. He confirmed that he clocked in for his start/finish times but breaks were not clocked. He worked from 12-2pm until 10 pm on his days on. The first part of the shift entailed food preparation which was moved to another area for dinner service later on. He did not get a chance to take breaks. He would only take 5 minute toilet breaks. He referred to sitting in the canteen on a few occasions in the course of his employment organising his recipe book. Although there was a vending machine and the canteen could be used, Hotel food could generally not be consumed by the staff and a €3 daily allowance was provided. However the Complainant said he never availed of this as it was not practical to leave the Hotel.

When questioned, the Complainant confirmed that he had signed confirmation of receipt of the Company Handbook on commencement of his employment. This made various provisions regarding hours of work including: “Where the employee cannot avail of a break/rest period, they must notify their Department Head of this fact within 1 week of the day the break/rest period was due. The Head of Department then must make arrangements for the employee to receive the missed break/rest period as soon as possible, having regard to work circumstances and the employee’s health and safety. Failure by the employee to avail of this rest entitlement will not constitute a breach of the legislation by the employer.” The Handbook also provided for a Complaints/Grievance Procedure although Counsel for the Complainant pointed out that this only related to harassment and bullying.

When asked whether he had been told not to take a break, the Complainant said that he had not. When asked whether he had notified his missed breaks to the Head Chef, he replied that he was well aware of the situation as they work together and he did not need to tell him. He was unable to give any specifics of informing him of the difficulty with taking his breaks during the relevant period. He confirmed that he had not availed of the Complaints/Grievance Procedure or otherwise put the matter in writing to the Head Chef or HR. He also accepted that despite seeing the HR Manager around the Hotel on a frequent basis he had never brought the matter to her attention verbally, although he had previously complained to her about his pay. He said that even if he had made a complaint, nothing would change. It was common case that the first notification of this complaint was made by way of his first complaint to the WRC some time after leaving his employment. The Complainant also denied that there was an arrangement for staff to notify the Respondent of breaks not taken on the roster and/or that there was a note to this effect above the clocking system.

In summary, Counsel for the Complainant submitted that there was clear evidence that the he had been denied his statutory breaks during his employment with the Respondent pursuant to Section 12 of the Organisation of Working Time Act 1997. The Respondent’s Department Head was the Head Chef who was well aware of the situation. The Respondent had adduced no evidence to prove otherwise having not produced accurate records of the Complainant’s breaks, and hence bore the burden of proving compliance with the Act. Notwithstanding that the Handbook sought to impose an obligation upon the Complainant to notify the Department Head of any missed breaks, the legal obligation to ensure that he was afforded same rested squarely with the Respondent.

Respondent’s Submission and Presentation:

The Respondent strenuously refuted the Complainant’s contention that he was not afforded his statutory breaks for the relevant period and indeed for the totality of his employment. The General Manager and HR Manager both gave evidence confirming the various matters that had been put to the Complainant and in particular: (1) that he had signed for the aforesaid Handbook containing the provision requiring missed breaks/rest periods to be reported to the Department Head and Complaints/Grievance Procedure, (2) that he had never notified HR of any difficulties taking breaks before submission of his complaint form to the WRC, either orally or in writing and (3) that as it would not be practicable to use the clocking system for breaks, there was an arrangement in place whereby staff recorded any missed breaks on their rosters and also there is a note above the clocking system requiring staff to notify missed breaks so that compensatory breaks are provided.

The General Manager confirmed that he had seen the Complainant in the canteen on occasion and also the other Chefs taking breaks, although he could not be specific about the timing and frequency. He confirmed that no issue regarding the Complainant being afforded his breaks had been brought to his attention by either the Complainant or the Head Chef in question. Whilst the kitchen could be under pressure during service, there were ample opportunities to take breaks earlier on in the shift. He disagreed that the Hotel was understaffed to the extent alleged and said staff who left were always replaced. He said that the Chefs covered for each other’s breaks when it was not busy. Staff were also provided with a daily allowance of €3 towards lunch or could bring in their own food to consume in the canteen. Tea and coffee was provided or they could use a vending machine. The HR Manager also confirmed that she was in and out of the kitchen on a daily basis and had seen the Complainant making up food for himself there on occasion. Although she had regular contact with the Complainant he had never mentioned any difficulty with availing of his breaks. He had however previously raised an issue around obtaining a pay rise in 2014 which was not granted.

Overall, the Respondent contended that the Complainant was simply not credible, particularly as he had not made any prior oral or written complaint regarding taking breaks before his claim to the WRC after he had left his employment. Systems were in place to deal with missed breaks and there was ample opportunity for the Complainant to take his breaks before service got busy. The Respondent’s duty to ensure that breaks are taken by its employees is not completely unfettered.

Submissions were also made regarding the applicability of various exemptions under the Organisation of Working Time Act 1997 including that the Organisation of Working Time (General Exemption) Regulations 1998, which I do not consider to be relevant to the matters in issue.

Findings and Reasoning:

In relation to statutory breaks, Section 12(1) of the Organisation of Working Time Act 1997 provides:

“12(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

Firstly I am satisfied that although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring that the provisions of the Organisation of Working Time Act 1997 are complied with regardless of any term requiring an employee to report missed breaks/rest periods as contained in the Respondent’s Handbook. Secondly, I accept Counsel for the Complainant’s submission that the burden of proof pertaining to such matters is set out in the Labour Court decision of Circus Gerbola Limited -v- El Mostafa Chtabbou MWD 1211, relying on Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as follows:

“In Jakonis Antanas v Nolan Transport this Court held as follows in relation to the application of Section 25(4) of the Organisation of Working Time Act 1997, which is similarly worded to Section 22(3) of the Act: -

The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from Section 27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”.

The respondent should then be called upon to put the records required by Section 25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”

Applying the aforesaid test to the instant facts, I am not satisfied that the Complainant has overcome the first low hurdle of providing sufficient evidence to support a stateable case of non-compliance with Section 12 of the Act, sufficient to “suggest a reasonable possibility” of non-compliance with the Act. Specifically, I find it wholly incredible that the Complainant would have waited until some time after terminating his employment to make a complaint for the very first time that he was not being afforded his breaks by way of a claim to the WRC. There may well be situations where the failure to make a complaint or avail of a grievance procedure are understandable and permissible and making a complaint is not a prerequisite to a successful claim.

However in the instant case, the Complainant has not provided any reason for not bringing this complaint to the Respondent’s attention at an earlier stage. He has not given evidence of any fear of raising such an issue whilst still in the Respondent’s employment and accepts that he had previously raised an issue with HR regarding his rate of pay which he was clearly unhappy with. Indeed his evidence would tend to suggest that he was afforded considerable autonomy in his role, such that on at least a few occasions he was able to go to the canteen to organise his recipe book.

I am also satisfied that the Complainant had regular contact with the HR Manager such that he would have brought it to her attention if availing of his breaks was genuinely an issue, and if having brought it to the attention of the Head Chef, he had done nothing to address the matter. In so finding, I am cognisant that the Head Chef in question has since left his employment with the Respondent and his attendance at the hearing to corroborate the Complainant’s account could not be secured. Even if I accept that there was a genuine issue regarding the Complainant’s breaks which the Head Chef was aware of but did nothing about, I remain of the view that if this complaint was credible, a person in the Complainant’s position would have brought it to the HR Manager’s attention. I also found his evidence to be vague and lacking in detail in terms of his attempts to bring this issue to the Head Chef’s attention without any dates or specifics. Having failed to overcome the first hurdle, it follows that the Respondent does not have to be called upon to put the records required by Section 25(1) of the Act in evidence showing compliance with Section 12.

Decision:

For the aforesaid reasons, I hold that this Complaint Reference Number CA-00002193-001 referred under Section 27 of the Organisation of Working Time Act 1997 is not well founded and accordingly, dismiss same.

Dated:   29^th August 2016