ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002287

Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00003087-001	08/03/2016

Date of Adjudication Hearing: 06/07/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 27 of the Organisation of Working Time Act, 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant has worked for the respondent since 11th June 2008. She moved to one of their offices on 1st July 2015. She received no breaks from that time until March 2016, when her union raised the issue with the employer. She was then moved to another office where she received breaks. It is submitted that the respondent failed to acknowledge the union’s representations on the matter and has engaged in a systematic abuse of employment protection legislation.

It is further submitted that the employer only applies the provisions of the Act when forced to do so by a third party decision, and therefore a clear message should be sent by imposing maximum compensation and a direction to comply with the Act.

Respondent’s Submission and Presentation:

The respondent argues that this complaint should be ruled out of time as the complainant cites the 1^st July 2015 as the breach of the relevant provision and the complaint was received by the Workplace Relations Commission on 8^th March 2016.

Decision:

Preliminary issue - Time limit

Section 4 of the Act provides:

A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

This complaint was received on 8^th March 2016. The six month period therefore cognisable is from 9^th September 2015. The complainant framed her complaint as being denied rest breaks from 1^st July 2015 “during this period to date”.

As clarified by the High Court in HSE v John McDermott [2013 No. 334 MCA], once a complaint of an alleged contravention is framed for a period in which the claim is presented not more than six months after the beginning of that period, the claim is not time barred.

I therefore deem this complaint not to be time barred.

Section 12 of the Act 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)”.

The Act also provides that where an employer does not provide records the burden of proof that the Act has been complied with lies with the employer.

In this instant case, the respondent provided no records of break times being allocated to employees, and while alluding to the understandable difficulties in small employments nevertheless appears to have no plans to ensure the letter or spirit of the law is followed.

I declare the complainant’s complaint to be well founded. I require the respondent to comply with the provisions of the Act and I require the respondent to pay to the complainant the sum of €1,000.

Dated: 5^th October 2016