ADJUDICATION OFFICER DECISION

An Employee –v- Healthcare Company

Adjudication Decision Reference: ADJ-00004633

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 16/12/2016

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 27 Organisation of Working time Act and Section 7 Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Section 41(4) of the Workplace Relations Act 2015 and Section 27 Organisation of Working time Act and Section 7 Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

1. ADJ 4633- 001 Terms of Employment Information Act, 1994.

Respondent’s submissions:

The respondent concedes that the complainant did not receive her contract of employment. However, upon commencement in November, 2015 the respondent’s office manager verbally went through the complainant’s contract with her. The respondent signed it but neglected to get the complainant to sign it.

Complainant’s submissions:

The respondent has breached its statutory duty in that they failed to give to the complainant a copy of her terms and conditions of employment.

Decision 

S3.(1)  An employer shall, not later than 2 months after the commencement of an employee's    employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the

principal place of the relevant business of the employer in the State or the  registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement  specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)      the date of commencement of the employee's contract of employment,

f)       in the case of a temporary contract of employment, the expected duration thereof or if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee's remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)      any terms or conditions in relating to-

The Respondent has conceded that despite discussing the complainant’s contract in detail, they neglect to give her a copy of it.

On that basis I find in favour of the complainant and I recommend that the respondent pay to the complainant the sum of €500.00.

2. ADJ 4633- 002 Organisation of Working Act, 1997

Respondent’s submissions:

When the complainant commenced her employment with the respondent, she did a full induction and training session with the operations manager.   She received one full weeks training. During that course her entitlement to rest periods were explained to her. The process required to take rest periods was also given to her. The respondent admits that it is not always possible to take a break at the allotted time. Some flexibility is required in this regard. Statements from four employees were submitted into evidence. All four statements stated that each of the individuals regularly covered the reception for the complainant when she was taking her breaks.

The respondent stated that at that time its record keeping in relation to staff breaks was not as it should have been. They have since taking steps to rectify that and have a new system in place which records all of the staff, their working hours, rest periods etc.

Complainant’s Submissions:

The complainant stated that she was aware of her break entitlements. However, regularly there was nobody available to cover reception for her. When that happened she was forced to work a full shift with no breaks.

Decision:

S12.—(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).

S25- (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 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.

The respondent stated in evidence that the complainant was told at the commencement of her employment what her break entitlements were and how to apply them. The complainant herself conceded that she knew what her entitlements were. The only issue between the parties was the availability of other staff members to cover for the complainant when she was taking her breaks. The complainant stated that there was rarely anyone available to cover for her. The respondent stated that other staff members regularly covered for her. Statements from four employees corroborating the respondent’s evidence were not objected to by the complainant. On that basis I prefer the respondent’s evidence.

The respondent does have a statutory obligation to keep and maintain records to show that the provisions of the Act are being complied with. The onus of proving compliance is on the respondent as was stated in Goode Concrete –v- MonroeWTC 04/59. The respondent accepts that at the material time it was not in full compliance with the Act. Since then they have taken steps to ensure compliance.

The complainant argued that not only should she be compensated for her economic loss but that compensation of up to two years should be awarded so as to act as a deterrent against further infractions. In that regard she relies on the case of Von Colson & Kamann –v- Land Nordrhein- Westfalen 1984 ECR 1891 ECJ,.an equality case in relation to access to employment. I am satisfied that whilst the principles in relation to compensation acting as a deterrent arose from this matter they did so in the context of equality principles and members states obligations in relation to directives.

I am satisfied that the respondent has taken steps to rectify its statutory failings such that no further infractions should occur. No evidence in relation to economic loss was opened during the hearing.

In all of the circumstances I award the complainant € 250.00.

Dated: 24^th April 2017