DWT163

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  1. This is an appeal under section 28(1) of the Organisation of Working Time Act 1997 by Marinuda Ltd. (the Respondent/Appellant) against decision r-149661-wt-14/JW of the Rights Commissioner issued on 13 April 2015.

  2. The Rights Commissioner decided that complaints made by Ms Samantha Murray, the Complainant, that the Respondent company had infringed sections 14, 20/ 21/22, 17 and 12 of the Act were well founded. He ordered the Respondent to pay the Complainant compensation in the sum of €2647.04 for the breaches involved.

  3. The Respondent appealed against that decision to this Court. The case originally came on for hearing on 1 July 2015. It again came before the Court on 18 November 2015.

  4. The Court received written submissions from both sides and these were supplemented by further oral submissions made in the course of the hearing of the case.

  5. The Appellant operates a restaurant in the Dublin area. It employed the Complainant as a catering assistant in November 2013. The Complainant’s employment terminated on 21 June 2014.

Section 12

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  6. The Complainant states that, in the statutory reference period, she routinely worked in excess of 6 hours per shift and was not, contrary to section 12 of the Act, afforded a break of 30 minutes.

  7. The Respondent states that the Complainant normally worked 4 hour shifts; that she was allowed a 15 minute break on each shift but that she normally took 30 minutes which included a smoke break. It states that there is no merit in the Complainant’s case.

  8. Section 12 states

  • a.(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.

    b. (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) .

  9. There is a conflict of evidence between the parties on all points raised in the complaint. When considering it the Court must take into account the provisions of section 25 of the Act which states
  • a.(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

    b. (4) Without prejudice to subsection (3) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

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  10. In this case the Respondent did not keep records of the Complainant’s attendance at work or of the breaks she was afforded. The burden of proving compliance with the Act therefore rests with the employer.

  11. Having heard the submissions of both sides the Court finds that the Complainant was routinely required to work in excess of 6 hours and was entitled to the breaks set out in section 12 of the Act.

  12. The Respondent offered no evidence to the Court to support the case he was advancing. He merely asserted that the Complainant was not accurately reflecting the circumstances in which she worked and asked the Court to accept his version of events. The Court finds that mere assertion is not sufficient to discharge the burden of proof that lies on the Respondent and on that basis the Court finds that the complaint is well founded and determines accordingly.

  13. Court found the Complainant an honest and measured person who took care not to overstate her complaint. She supported her submissions with details that made them credible and reliable. The Court accordingly prefers her evidence over that of the Respondent.

  14. The Court accordingly finds that the Respondent required the Complainant work in excess of four hours and thirty minutes without a break of 15 minutes on occasions. The Court further finds that the Respondent required the Complainant to work in excess of six hours without a break of 30 minutes. The Court accordingly finds that the Complaint is well founded.

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  15. The Court determines that the complaint is well founded and orders the respondent to pay the Complainant compensation in the sum of €1500. The Decision of the Rights Commissioner is varied accordingly.

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  16. The Complainant states that though it was not part of her contract of employment she was required to work on Sunday for which she was not otherwise compensated under the Act.

  17. The Respondent acknowledges that the Complainant was required to work on Sunday. It states that the Complainant was so advised at the commencement of her employment. However it acknowledges that such a requirement was not set out in her contract of employment. It states that it was advised by a NERA official that it was required to pay the Complainant a premium for working on Sunday and that it had agreed with him an amount of €0.35 per hour in respect of each hour worked on Sunday. It submits that in paying that amount to the Complainant it discharged its obligations under section 17 of the Act.

  18. Section 14 of the Act states

  • a.
    (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

    b. (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

    c. (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

    d. (c) by granting the employee such paidtimeoff from work as is reasonable having regard to all the circumstances, or

    e. (d) by a combination of two or more of the means referred to in the preceding paragraphs.

    f. (2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

    g. (3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for thetimebeing specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

    h. Provided that if each of 2 or more collective agreements for thetimebeing specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

    i. (4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

    j. (5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

    k. (6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

    l.

  19. The Court has considered the totality of the submissions made by the parties and the evidence adduced regarding this matter. It is common case that the Complainant was required to work on Sunday in the relevant statutory period. No records of Sunday working were produced to the Court. The recollection of both parties as to the number of Sunday’s the Complainant worked was deficient. However, from what evidence was available, the Court finds that, on the balance of probabilities, the Complainant worked on 6 Sundays in the relevant statutory reference period.

  20. The Court notes that the Complainant was paid €9 Euro per hour. The Respondent states that this included a premium for working on Sunday. The Complainant accepts that she was paid €9 per hour but argues that it was the agreed rate of pay and contained no provision for working on Sunday.

  21. The Court finds that, on the balance of probabilities, the figure of €9 per hour was agreed between the parties as the rate for the job. It was not intended to include a premium for working on Sunday. That issue was not discussed at the time and the hourly rate was paid whether Sunday was worked or not. Accordingly the Court finds that the fact of her having to work on that day has not otherwise been taken account of in the determination of her pay and she is entitled to be compensated for being required so to work.

  22. The Court finds that a premium of 33.33% for working on Sunday in this sector is fair and reasonable in all the circumstances of the case. The Court accordingly upholds the decision of the Rights Commissioner and determines accordingly.

  Determination Section 14

  23. The Court determines that the Complaint is well founded and upholds the decision of the Rights Commissioner. The Court orders the Respondent to pay the Complainant compensation in the sum of €720 in accordance with the decision of the Rights Commissioner.

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  24. The Complainant states that she was not paid for all of her statutory holiday entitlement. She claims that she is owed holiday pay by the Respondent. She did not quantify the amount due to her.

  25. The Respondent states that the Complainant was paid 8% of her total pay by way of holiday pay. It quantifies this amount at €478.80 which it states she was paid in full. It denies that there is any outstanding holiday pay due to the Complainant.

  26. Section 19 of the Act states

  • • a. ) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

      b. (a) 4workingweeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

      c. (b) one-third of aworkingweek for each month in the leave year in which he or she works at least 117 hours, or

      d. (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4workingweeks):

    
    
    e. Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
  
  27. Under the Act an employee is entitled to annual leave and an employer is required to keep records of the leave granted and paid for in the relevant leave year. In this case the Respondent produced no records to the Court. The Respondent told the Court that it had discharged its liability to the Complainant but was not in a position to establish that on evidence. The Complainant stated that she was not given the holidays claimed by the Respondent and that some holidays remained outstanding.

  28. The Court finds, on the balance of probabilities, that there are monies due to the Complainant and agrees with the figure decided on by the Rights Commissioner in this case.

  Determination Annual Leave Sections 19/20

  29. The Court finds that the complaint is well founded, affirms the decision of the Rights Commissioner to order the Respondent to pay the Complainant compensation in the sum of €167.04 and determines accordingly.

  Public Holidays

  30. The Complainant states that she not properly paid for Public Holidays that fell during her employment with the Respondent. She argues that when she worked on a Public Holiday she received no premium payment or additional time off. When she was scheduled off on a Public Holiday she was not paid for that day in accordance with the Act.

  31. The Respondent states that the Complainant received all of her public holiday entitlements. It states that she had in the relevant period accrued an entitlement to 5 public holidays with a value of €180. It states that she was paid €252 cessor pay when her employment ended. It argues that it discharged its Public Holiday obligations to the Complainant.

  32. Section 21 of the Act states

  • • a.(1) Subject to the provisions of this section , an employee shall, in respect BB.159 of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
      • • i. (a) a paid day off on that day,

          ii.(b) a paid day off within a month of that day,

          iii.(c) an additional day of annual leave,

          iv.(d) an additional day's pay:

      b. Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection , be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

      c. (2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

      d. (3) If an employer fails to comply with a request under subsection (2) , he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.

      e. (4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-timeemployee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

      f. (5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section , absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

    
    g. (6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
  
  33. There is a dispute between the parties on the facts relating to this complaint. The Complainant states that when she worked on public holidays she was not compensated in accordance with the Act. When she did not work she was not paid for the holiday. The Respondent disputes those assertions.

  34. The Respondent is required to maintain records under the Act. He did not produce any such records to the Court. However he states that the Company discharged its statutory obligations to the Complainant.

  35. Having reviewed the evidence the Court is not satisfied that the Respondent has discharged the statutory obligation of proving compliance with the Act. In those circumstances the Court must determine the matter in favour of the Complainant.

  Determination

  36. The Court affirms the decision of the Rights Commissioner, orders the Respondent to pay the Complainant compensation in the sum of €360.00 and determines accordingly.

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  37. The Complainant states that while at work she was notified of her commencement times but was never given any firm information about her finishing times. She argues that this infringes section 17 of the Act.

  38. The Respondent made no written submission on this matter however it stated at the hearing that the Complainant was at all times aware of her start and finish times. It stated that there were limits to the number of hours she could work and continue to qualify for certain social welfare benefits. It stated that as a consequence there were arrangements in place to structure her working week to meet that need. It stated that this required some flexibility to ensure that she did not exceed the relevant limits and lose her benefits.

  39. Section 17 of the Act states

  • a. (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishingtimes of work of an employee, the employee's employer shall notify the employee, subject to subsection (3) , at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of thetimes at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

    b. (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may fromtimetotimedecide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3) , at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of thetimes at which the employee will be required to start and finishworkingthe additional hours on each day, or, as the case may be, the day or days concerned, of that week.

    c. (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2) , the employee has not been required to do work for the employer, thetimeat which the employee shall be notified of the matters referred to in subsection (1) or (2) , as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

    d. (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2) , as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) attimes other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at thosetimes.

    e. (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

    f. Article 3 of S.I. 473/2001 states

    g. The records required to be kept under section 25(1) shall contain the following particulars and documents (a)

    h. the name and address of each employee concerned, the number known as the Revenue and Social Insurance number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned) of his or her duties as an employee,

    i. a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of theTerms of Employment (Information) Act, 1994(No. 5 of 1994), or any order or regulation made under that Act, that relates to him or her,

    j. the days and total hours worked in each week by each employee concerned,

    k. any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,

    l. any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

    m. a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),

    • 
      and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.
  40. In this case the Respondent did not produce any such records to the Court. Section 25 of the Act places the burden of proving compliance with the Act on the employer. It set about doing this by simply asserting that its position was correct and that of the Complainant was in error.

  41. The Complainant stated that she was aware of her start times but was told during the day what time she would finish. She said that her finishing times varied with the vagaries of the business and that she had no certainty regarding her hours. She stated that she did not receive any notification of overtime and that she was not given reasonable notice of her finish times.

  42. The Court found the Complainant an honest, coherent and reliable witness. The Court finds that the burden of proving compliance with the Act lies with the Respondent and that it did not discharge that burden.

  43. The Court therefore finds that the complaint is well founded and determines accordingly.

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  44. The Court finds that the Complaint is well founded. The Court upholds the decision of the Rights Commissioner and orders the Respondent to pay the Complainant compensation in the sum of €600 and determines accordingly.

  45. Overall Determination

  46. For the reasons set out above the Court finds that the complaints are well founded. The Court orders the respondent to pay the complainant total compensation in the sum of €3,347.04. The decision of the Rights Commissioner is varied accordingly. The Court so determines.