ADJ-00001961

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001961

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

Date of Adjudication Hearing: 03/05/2016

Workplace Relations Commission Adjudication Officer: David Iredale

Anonymized Parties:

Background:

The Claimant worked as a Chef in the Respondent’s take away food business . The parties were in dispute as to the duration of the Claimant’s employment with the Claimant maintaining he worked from 14 October 2014 to 21 November 2015 and the Respondent contending his employment was from 8 January 2015 to 5 October 2015. While the Claimant’s P45 corresponds with the Respondent’s dates, this document was only generated over 4 months after the Claimant’s employment ended and following the Respondent being notified by the Workplace Relations Commission (the “WRC”) of the complaints being brought by the Claimant. Furthermore, all sections of the P45 that dealt with the employer’s name, address, registration number etc. were left blank and the document provides no detail that the Claimant was employed by Respondent.

The parties also disagree as to the Claimant’s hours of work in that the Claimant stated that he worked a 45-hour week over 5 shifts, from 3.00pm to 12.00pm each shift and the Respondent claiming he worked a 21-hour week made up of 3 shifts from 5.00pm to 12.00pm.

The wages paid to the Claimant was also a matter of dispute between the parties with the Claimant maintaining he was paid €10.00 per hour and the Respondent claiming the rate was €8.65 per hour.

The Claimant is seeking compensation for the Respondent allegedly being in Breach of S.3 of the Terms of Employment (Information) Act, 1994 (the “1994 Act”), in that it had failed to provide him with a written statement of the particulars of his terms within 2 months of the commencement of his employment.

The Claimant is also seeking compensation for the Respondent being in beach of S.12, S.19, S.20 and S.21 of the Organisation of Working Time Act, 1997 (the “1997 Act”), in that the Claimant allegedly failed to provide the Claimant with his entitlement to rest breaks and intervals at work, his entitlement to holiday pay and annual leave and his entitlement to public holidays, respectively.

Claimant’s Case – Breach of 1994 Act (Reference: CA-00002648-003)

The Claimant contends that he was never provided with a written statement of his terms of employment.

Respondent’s Case – Breach of 1994 Act

The Respondent submits that in compliance with S.3 of the 1994 Act the Claimant was provided with a written statement of his terms on 8 January 2015.

Findings - Breach of 1994 Act

• While the written statement presented at the hearing did not have a Grievance or Disciplinary procedure included or attached as an addendum, it did provide an internet link to Statutory Instrument 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order, 2000 (“S.I. 146/2000”), where it stated the Claimant would find the procedures applicable to his employment.

Section 1.4. of the Statutory Instrument states that the purpose of S.I. 146/ 2000 is “…to provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures”. As neither a formal Disciplinary or Grievance procedure is present in the provisions of S.I. 146/2000, the Respondent’s link to this website does not meet its obligation to provide the Claimant with formal disciplinary or grievance procedures.

• The parties are in dispute as to the Claimant’s rate of pay with the Claimant maintaining he is paid €10.00 per hour and the Respondent claiming it had a verbal agreement with the Claimant to pay him €8.65 per hour. The copy of the Claimant’s statement of terms, provided by the Respondent at the hearing, sets the Claimant’s rate of pay at €10.00 per hour.

S.5 (1) of the 1994 Act states that: -

“….whenever a change is made or occurs in any of the particulars of the statement by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than-

1 month after the change takes effect…..”

I find that as the Respondent failed to provide written confirmation to the Claimant of the change of his rate of pay to €8.65 per hour, the Claimant had an entitlement to be paid €10.00 per hour as set down in the copy, submitted by the Respondent, of the Claimant’s terms of employment.

Decision – Breach of 1994 Act (Reference: CA-00002648-003):

S.3 (4) of the 1994 Act states that: -

“A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”

While the 1994 Act requires employers to sign the statement of terms, it does not place a similar requirement on employees to also sign the written statement.

S.3 (5) of the 1994 Act requires an employer to retain a copy of the written statement “…. during the period of the employee's employment and for a period of 1 year thereafter”.

As the Respondent has provided a copy of a written statement, signed by the Respondent and dated 8 January 2015, I find, on balance, that a statement of terms was provided to the Claimant and therefore declare the Claimant’s complaint not to be well founded.

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Claimant’s Case – Breaches of S.12, S.19, S.20 and S.21 of 1997 Act: 

The Claimant submits that he regularly worked during his shifts for over 6 hours without receiving a rest breaks. (Reference: CA-00002648-005)

The Claimant did not receive his entitlement to public holidays. (Reference: CA-00002648-002)

The Claimant received no paid annual leave during his employment. (Reference: CA-00002648-001)

Respondent’s Case – Breaches of S.12, S.19, S.20 and S.21 of 1997 Act:

The Claimant received his full entitlement to rest breaks. In addition to the breaks during which he ate a meal, the Claimant regularly took smoke breaks when he was not busy.

The Claimant worked 560 in total during his employment. Based on an entitlement to annual leave of 8% of hours worked, the Claimant earned 44.8 hours leave. As the Claimant was paid only 42 hours annual leave during his employment, the Respondent accepts that the Claimant is due 2.8 hours wages in compensation for his outstanding annual leave entitlement.

The Claimant received his full entitlement to public holidays.

Findings – Breaches of S.12, S.19, S.20 and S.21 of 1997 Act:

S.25 (1) of the 1997 Act, as amended, states that: -

“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”.  

       S.I.473/2001 - the Organisation of Working Time (Records) (Prescribed Form and Exemptions)

Regulations, 2001, sets down in S.3 (c) of the Statutory Instrument that the records required to   be kept under S. 25 (1) shall contain the following particulars and documents-

       “(c)     (i) the days and total hours worked in each week by each employee concerned,

(ii) 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,  

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

S.4 (1) of S.I 473/2001 provides that:

       “Where no clocking in facilities are in place in a work place a form to record the days and hours worked in each week by each employee shall be kept by the employer in the form set out in the Schedule entitled Form OWT 1 or in a form substantially to like effect”..

       The OWT1(a) form kept by the Respondent included a declaration by the Claimant that he had received his entitlement to rest breaks for that particular week. However, the hours worked by the Claimant each day, as shown on the OWT1(a) forms, are contrary to those declarations of compliance as they show that the claimant did not receive his entitlement to rest breaks. The OWT form is a record of the hours actually worked less meal and rest breaks. The OWT1(a} forms show the Claimant commencing work each working day at 5.00pm and finished work at 12.00pm and that during that period he worked continuously for 7 hours. Working for 7 hours without a rest break is in breach of S.12 of the 1997 Act.

         The OWT records submitted by the Respondent seem more to be rosters rather than records of actual working hours as they show that throughout the Claimant’s employment he never commenced or finished work either early or late but rather commenced and finished at exactly the same time each day.

S.25 (4) of the 1997 Act states that: -

          “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 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”.

          If, as found in 7.1 above, the information on the OWT1(a) forms are correct then, regardless of any declarations made by the Claimant, the Respondent is in breach of S.12 of the 1997 Act. Alternatively, if the information on the forms is not a true account of the Claimant’s actual working hours then the onus of proving compliance with the provisions of the 1997 Act lies with the Respondent.

The Labour Court in the case of Nurendale Ltd T/A Panda Waste and Andrei Suvac, DWT1419, stated that: -

                “In reliance on the terms of this contract the Respondent submitted that the Claimant was obliged to take breaks and that if he failed to do so t was through his own choosing. THE Court cannot accept that submission. In Antanas v Nolan Transport [2011] 22 ELR 311, having considered the decision of the CJEU in Case C-484/04, Commission v United Kingdom IRLR 888, this Court held that Directive 2003/88/EC, from which the Act of 1997 is derived, places a positive obligation on an employer to ensure that the breaks are actually taken and it is insufficient to merely provide that breaks can be taken. In this case no evidence was tendered to the Court to show that the Respondent took any measures to ensure that the Claimant actually took the breaks to which he was entitled.

                It is also noteworthy that this contract appeared to place an obligation on the Claimant to maintain records of his working time and breaks. Section 25 of the Act places that obligation on an employer. It cannot be transferred by contract or otherwise to an employee so as to relieve the employer from its statutory duty to comply with that section”.

             I find that a signed declaration by the Claimant that he had taken his rest breaks is not proof that the breaks were actually taken. Furthermore, apart from stating that the Claimant was fully aware of his entitlement and the requirement to take rest breaks and that he could take smoke breaks when he wasn’t busy, I find that the Respondent provided no evidence that it had in place any measures to ensure that rest breaks had been taken.

The Claimant’s complaint alleging that the Respondent was in breach of S.21 of the 1997 Act was presented on 16 February 2016. S.27 (4) of the 1997 Act provides that complaints can only be considered if they are presented within 6-months of the date of the alleged contravention. In this case the only public holidays that fell in the period 17 August 2015 to 16 February 2016 can be considered.

                The parties disagree as to the date the Claimant’s employment ended with the Claimant maintaining that he worked to 21 November 2015 and the Respondent claiming the Claimant’s employment terminated on 5 October 2015. If the Claimant’s date of leaving employment is accepted then the 26 October 2015 is the only public holiday that fell during the period under review. No public holiday fell in the period under review if the Respondent’s date of the Claimant’s employment ending is accepted. Therefore, a decision on which date the Claimant’s employment ended must be made prior to investigating whether the Claimant’s complaint that the Respondent was in breach of S.21 of 1997 Act was well founded or otherwise. In the circumstances I find that the 1997 Act has no application in determining the Claimant’s date of leaving employment.

Based on its submission that the Claimant’s employment was from 8 January 2015 to 5 October 2015, the Respondent calculated that the Claimant had earned an entitlement to 44.8 hours annual leave. The Respondent submitted that as the Claimant had received 42 hours holiday pay in September 2015, there was an outstanding entitlement owed to him of 2.8 hours holiday pay.

The Respondent provided copies of the Claimant’s pay advices and an analysis of weekly earnings and statutory deductions for the working hours over the duration of the Claimant’s employment. The analysis of earnings shows that the only holiday pay paid to the Claimant during his employment to have been 21 hours in week commencing 11 September 2015 and a further 21 hours holiday pay in week commencing 18 September 2015. The pay advices however show the Claimant as having been paid a total of 238 hours holiday pay made up of 21 hours in weeks 8, 12, 16, 20, 21, 22, 26, 35 and 38, 14 hours in weeks 25, and 39 and 7 hours in weeks 4, 13 and 17 of 2015.

Pursuant to S.25 (4) of the 1997 Act, the Respondent’s failure to maintained the required OWT records results in it being required to prove compliance with S.20 of the 1997 Act. As the record of paid holidays shown on the payslips does not correspond with the analysis or the detail on the OWT records, I am not satisfied that the Claimant has proved compliance with S.20 of the 1997 Act.

The Claimant presented a complaint alleging that the Respondent was in breach of S.3 of the 1994 Act in that it had not provided him with a written statement of his terms of employment. The complaint was held not to be well founded as it was found that a written statement had been issued (Case reference: CA-00002648-001). The written statement gave the Claimant’s rate of pay as being €10.00 per hour. While this was disputed by the Respondent who claimed that it had been verbally agreed with the Claimant that he would be paid €8.65 per hour, the Respondent did not notify the Claimant in writing of any change to his terms as is required under S.5 of the 1994 Act.

The Claimant was paid holiday pay of €8.65 per hour rather than his contractual rate of €10.00 per hour. I therefore find that the Respondent was in breach of S.20 of 1997 Act as it had failed to pay him his correct entitlement to holiday pay.

Decisions – Breaches of S.12, S.19, S.20 and S.21 of the 1997 Act:

The following decisions on the Complaint’s made by the Claimant under the provisions of the 1997 Act are based on the findings shown in points 8.1 to 8.6 above and following full consideration being given to the submissions made by the parties.

Decision – Breach of S.12 (Reference: CA-00002648-005):

I declare the Claimant’s complaint that the Respondent was in breach of S.12 of the 1997 Act to be well founded as I find that the records maintained by the Respondent were not in compliance with its obligations under the 1997 Act and no evidence was presented to show that the Respondent had in place a process to ensure that the Claimant actually received his entitlement to rest breaks. I require the Respondent to pay to the Claimant the sum of €500 in compensation for being in breach of S.12 of the 1997 Act.

Decision – Breach of S.19 (Reference:   CA-00002648-001):

The Respondent fully accepted that the Claimant had earned an entitlement to annual leave over the course of his employment. I therefore declare the Claimant’s complaint that the Respondent was in breach of S.19 of the 1997 Act not to be well founded.

Decision – Breach of S.20 (Reference:   CA-00002648-001)

I declare the complaint that the Respondent was in breach of S.20 of the 1997 Act to be well founded as I find that the documents submitted in evidence by the Respondent provide conflicting information and consequently the Respondent has failed to prove that, in compliance with S.20 of the 1997 Act, he provided the Claimant with his entitlement to annual leave and that the Claimant was paid holiday pay at the proper rate.

I require the Respondent to pay to the Claimant the sum of €600.00 in compensation for being in breach of S.20 of the 1997 Act.

The parties are in dispute regarding the Claimant’s hours of work and the duration of his employment. As I am not satisfied that the Claimant has provided sufficient evidence to prove his claims in this regard, the award is based on the Respondent’s position that based on 8% of total hours worked, the Claimant earned an entitlement to 44.8 hours annual leave. The award includes the Claimant’s financial loss of €448.00 with the balance of the award being in compensation for the breach of S.20 of the 1997 Act.

Decision – Breach of S.21 (Reference:   CA-00002648-002):

The Claimant contends that his employment terminated on 21 November 2015. If that date of leaving is accepted then, pursuant to S.27 (4) of the 1997 Act, the public holiday of 26 October 2015 is the only public holiday that fell in period under consideration i.e. the 6-month period commencing on 16 February 2015, the date the Claimant presented his complaint to the WRC.

The Respondent however contends that the Claimant’s employment ended on 5 October 2015. If that termination date is accepted then no public holidays fell during the period under consideration.

In order to investigate the Claimant’s complaint that the Respondent was in breach of S.21 of the 1997 Act, it is first necessary to determine the date the Claimant’s employment ended. I find that the Claimant’s P45 does not assist in determining this matter as it was only issued after the Respondent was notified by the WRC that the Claimant had presented complaints under the 1994 and 1997 Acts and none of the sections on the P45 concerning the Claimant’s employer had been completed. In the circumstances I find that the 1997 has no application in investigating and determining the date the Claimant left the Respondent’s employment.

Dated: 15/08/2017