ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007919

  Anonymised Parties A House Manager An Entertainment Company   Representatives Neil Cosgrave, Cosgrave Solicitors IBEC

Complaints:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 CA-00010628-001 04/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 CA-00010628-002 04/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 CA-00010628-003 04/04/2017 Date of Adjudication Hearing: 04/09/2017 Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid complaints received by the Workplace Relations Commission (hereinafter ‘WRC’) on 4th April 2017, and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant was represented by Cosgrave Solicitors and the Respondent was represented by IBEC. I proceeded to hearing on 4th September 2017. At the time of referral, a related trade dispute referred under Section 13 of the Industrial Relations Act 1969 (File Reference Number: ADJ-00005698) stood adjourned before me for the purposes of enabling the Parties to resolve various issues including the absence of an updated contract of employment. The trade dispute was heard over three dates on 17th February 2017, 21st April 2017 and 27th April 2017. Having heard the closely related facts in that matter, both Parties agreed that I should hear these complaints. In the circumstances, and so as to ensure an impartial stance, I deferred making a recommendation in relation to the trade dispute until I had heard these complaints. I have issued this decision together with the recommendation in the trade dispute. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration when coming to the decision as set out hereunder.

Background:

The Complainant has been employed as a House Manager in a branch of the Respondent’s Entertainment Company since 1998 and earns €29,000 per annum so €557.69 gross per week. Although subject to restructuring in 2013, it appears to have remained her employer at all material times. She contends that the Respondent failed to provide her with a contract of employment and/or to notify her in writing of any changes to the terms contrary to Sections 3 and 5 of the Terms of Employment (Information) Act 1994. She further contends that the Respondent failed to provide her with adequate rest breaks pursuant to Section 12 of the Organisation of Working Time Act 1997. The Respondent contends that the Complainant is not entitled to succeed in these complaints.

Summary of Complainant’s Case – CA-00010628-001 & CA-00010628-002

The Complainant firstly contended that she was has not been furnished with a statement of her terms of employment in writing, contrary to Section 3 of the Terms of Employment (Information) Act 1994. Although she received a contract in respect of her current role in or around 2002, she does not have a copy, and it has never been furnished notwithstanding a Data Protection request dated 24th October 2016. She recalls Head Office seeking a copy from her approximately two years ago. Secondly, the Complainant contended that the Respondent failed to notify her in writing of various changes to her contract contrary to Section 5 of the Act, including (i) an extension of her finish time from 9.30pm to 11pm, (ii) additional duties, (iii) suspension / removal of pay reviews and (iv) change in reporting structures. The Complainant gave evidence of the detriment she had suffered as a result of the absence of an updated contract including (1) various issues arising from an unclear chain of command, (2) delays in receiving her correct sick pay entitlement in accordance with custom and practice, (3) when raised, being subject to retaliatory disciplinary action in October 2016 in relation to leaving early when her finish time and/or breaks were not set out clearly in writing (4) not having her pay reviewed in line with managers of a similar service and status, and (6) a lack of clarity as to applicable grievance and disciplinary procedures. As a consequence, the Complainant had to employ Solicitors at her own expense to represent her interests in relation to these issues.

Summary of Respondent’s Case – CA-00010628-001 & CA-00010628-002

The Respondent’s Representative questioned the appropriateness of referring these complaints to the WRC during the currency of a related trade dispute also before the WRC as outlined above. It was contended that the issues around the Complainant’s contract (or lack thereof) became apparent during the hearing of the trade dispute in February 2017 when it transpired that neither the Complainant or Respondent possessed a copy of the Complainant’s original contract. Since 2013, the Respondent has been in the process of reviewing all contracts of employment for its staff to ensure compliance with current statutory requirements, with review of staff in the Complainant’s branch being the final step in the process. Contracts varied throughout the organisation owing to historical reasons including different IR Agreements negotiated between Management and the Unions. It also appears that the Complainant’s contract was mislaid during a Company restructuring. It was contended on behalf of the Respondent that the Complainant should not succeed in relation to these complaints as the Respondent was not responsible for the contract being mislaid during Company restructuring in 2013. In any event, it had adhered to custom and practice so the Complainant has not been at any disadvantage or suffered any detriment. Since becoming aware that there was an issue with the Complainant’s contract, the Respondent has made strenuous efforts to put in place a comprehensive contract through negotiation with the Complainant’s Solicitor. To date, five different versions have been exchanged with the Complainant’s Solicitor but she has refused to sign off on any of them. It was common-case that the Parties were close to agreeing an updated contract. The Complainant’s Solicitor further advised that the Complainant would not sign the final version of the contract until a recommendation in relation to the trade dispute had issued and that matter could not be concluded until the complaints herein were heard. Accordingly, the Respondent cannot be held liable for any non-compliance under the Act. The Respondent did not call any evidence rebutting the changes asserted or the detriment suffered.

Findings and Conclusions:

Firstly, and whilst it is regrettable that the Parties were unable to resolve their differences during the currency of the trade dispute as outlined above, the Complainant is entitled to submit complaints in respect of any statutory breaches to her employment rights and likewise, the WRC is obliged to adjudicate upon same. Turning to the first complaint, Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall not later than two 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 particulars of the terms of his/her employment as listed therein. In circumstances where it is not disputed that at some stage early into the Complainant’s employment, the Respondent furnished her with a contract of employment which has since been mislaid, it seems by both Parties, I am not satisfied that this complaint is well-founded. Turning to the second complaint, Section 5(1) of the Terms of Employment (Information) Act 1994 provides that: “Subject to subsection (2), whenever a change is made or occurs in any ofthe particulars of the statement furnished 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- (a) 1 month after the change takes effect,…” This complaint was instigated following various difficulties encountered by the Complainant arising from the absence of a contract of employment reflecting her current conditions of employment. The Respondent did not adduce any evidence rebutting her contention that changes to her contract had not been confirmed in writing or the consequent detriment suffered as outlined by the Complainant. In the circumstances, I am satisfied that this complaint is well-founded. I am also satisfied from the correspondence furnished and evidence adduced that the absence of the original contract and/or updated terms and conditions of employment arose before referral of these matters to the WRC, and it was in fact the referral of the trade dispute that led to the current negotiation of an updated contract. In particular, a letter dated 25th October 2016 from the Respondent to the Complainant regarding an investigation into the Complainant leaving before the end of hr shift confirmed: “Finally, in respect of your employment contract, (the Respondent) have been unable to locate your contract and I understand you advised our head office that you do not have a copy of your contract.” However, I also acknowledge the efforts made by the Respondent to engage with a view to agreeing a mutually acceptable updated contract of employment with the Complainant’s Solicitor.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. As set out above, I find CA-00010628-001 not to be well-founded but CA-00010628-002 to be well-founded. I am satisfied that the Respondent acted in contravention of Section 5(1) of the Terms of Employment (Information) Act 1994 by failing to notify the Complainant in writing of changes to her contract of employment. As specified by Schedule 6, once a complaint has been declared well-founded under Section 7(2)(a), Section 7(2)(b) and (c) provides for the giving of directions regarding the particulars to be contained in a written statement, and Section 7(2)(d) provides for an award in respect of a contravention of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.” Having regard to all of the circumstances and balancing the detriment suffered by the Complainant with the efforts made by the Respondent to negotiate an updated contract, I deem it just and equitable to direct the Respondent to pay her compensation equivalent to the sum of 3 weeks’ gross remuneration. As the Complainant’s average weekly remuneration is €557.69, this equates to compensation of €1,673. Given that the Parties are close to agreeing an updated contract, I do not propose making any directions in this respect.

Summary of Complainant’s Case – CA-00010628-003

The Complainant referred a complaint under Section 27 of the Organisation of Working Time Act 1997, contending that the Respondent contravened the Act by failing to provide her with correct breaks at the intervals prescribed by Section 12 of the Act. The Complainant gave detailed evidence of thirteen separate occasions within the relevant six-month reference period when she was not provided with breaks in accordance with Section 12 of the Act, as confirmed with contemporaneous records. The alleged breaches occurred on 6th October 2016, 28th October 2016, 29th October 2016, 30th October 2016, 18th November 2016, 19th November 2016, 15th December 2016, 22nd December 2016, 15th January 2017, 19th January 2017, 16th February 2017, 22nd February 2017 and 23rd February 2017. She confirmed that this pattern of breaches had persisted throughout her employment and in reality, there were a significant number of other breaches as she was constantly on call and even when she took her break, she would be frequently called away from her breaks by staff. Breaks were rostered for other staff but were never rostered for the Complainant who was expected to take breaks only if possible and only where there was no immediate task or situation to be addressed as was evident from the rosters for that period as furnished. There was no system in place for ensuring breaks and/or compensatory breaks would be taken. In the absence of a current updated contract of employment, the Complainant’s break entitlements and obligations regarding same were unclear, particularly as her finish time had been extended since the original contract. Additionally, in or around October 2016, the Complainant had been subjected to disciplinary action for leaving work early. It was at this stage that she began keeping her own contemporaneous records of her breaks. In response to the Respondent’s contention that given that the Complainant had a managerial role, she was responsible for taking her own breaks, it was submitted that the law requires the employer to ensure that rest intervals at work are not only scheduled and recorded, but that those rights are actually observed. There was no system in place for ensuring that the Complainant had taken her breaks. She was also directly answerable to another In-House Manager. It was submitted that as the Respondent had not retained any records observing her breaks contrary to Section 25(4) of the Act, it had not discharged the onus of proving compliance with same.

Summary of Respondent’s Case – CA-00010628-003

The Respondent’s Representative submitted that as the Complainant was herself a Manager responsible for supervising staff breaks, it was not tenable to suggest that either (a) she is ignorant of the statutory requirements as to rest breaks having worked for some 19 years under the legislation without an issue, or (b) that somehow the Respondent prevented her from taking rest breaks. Additionally, the Respondent did not issue any instructions to the Complainant on the taking of breaks such that they contravened statutory requirements. The Respondent did not call any evidence rebutting the alleged breaches outlined by the Complainant in evidence or the detriment suffered. It was confirmed that no records pertaining to the Complainant’s breaks were retained.

Findings and Conclusions:

In relation to statutory breaks, Section 12 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).” Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides: “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 Regulationsin 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.” 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 compliance with the Organisation of Working Time Act 1997. The Labour Court has set-out a well-established test for interpreting the applicable burden/onus of proof as provided for under Section 25(4) of the Act in relation to complaints brought under the Act, set out in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as follows: (1) The effect of S.25(4) of the Acts is to shift the burden of proof to the respondent in cases where records in the statutory form were not maintained. (2) The evidential burden on a claimant requires the claimant to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint. (3) That when the claimant has met his or her evidential burden, the respondent is required to put the records required by S.25(1) of the Act to demonstrate compliance with the relevant provision. Where such records are produced, the claimant bears the evidential and legal burden of proving that his or rights under the Acts were contravened in the manner alleged. (4) That where forms in the prescribed form as required by S.25(1) of the Act are not produced by the respondent and the claimant has satisfied the evidential burden, the respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge this burden, the claimant will succeed in their complaint/s under the Act. (5) That there is a positive obligation on employers under the Working Time Directive to ensure that the prescribed periods of rest are actually taken by employees. Commission -v- United Kingdom [2006] I.R.L.R. 888 applied. (6) That the minimum daily rest periods prescribed by S.11 of the Act were regularly disregarded and S.11 of the Act was contravened in relation to the claimant. (7) Obiter dictum: That the State would be in default of its obligations under the Directive if the Organisation of Working Time Act was interpreted in the manner contended for by respondent, i.e. that it is for the employee to ensure that the obligation regarding breaks and break periods are observed. Applying the aforesaid test to the instant facts, I find that the Complainant has adduced cogent evidence of at least thirteen occasions within the relevant reference period when she was not afforded proper breaks, sufficient to overcome the first low hurdle of providing sufficient evidence to support a stateable case of non-compliance with Section 12 of the Act. In particular, I am satisfied that business at the branch in question was conducted in such a manner that its smooth operation depended upon the Complainant taking breaks only when possible. There was no system in place for ensuring breaks and/or compensatory breaks would be taken. In the absence of an updated contract of employment, the Complainant’s level of responsibility regarding same was also unclear. Although she had clearly worked under this regime for a lengthy period without complaint, I find it credible that it was only when she was subjected to disciplinary action for leaving early in October 2016, that the taking of breaks became an issue and she started maintaining her own records. In the absence of any records confirming compliance with the Act and as the Complainant has made out stateable case, the Respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that it was not contravened in the manner alleged. In circumstances where the Respondent has not challenged the alleged breaches or produced any rebutting evidence, I am satisfied on the balance of probabilities that the Act has been contravened as alleged.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. For the aforesaid reasons, I am satisfied that the Respondent acted in contravention of Section 12 of the Organisation of Working Time Act 1997, by failing to afford the Complainant rest breaks as prescribed therein, and find this complaint to be well-founded. Whilst cognisant that compliance with the Act is a strict liability matter, in the context of this case where other grievances were under active consideration and discussion, I am of the view that this matter should have been properly raised at an earlier stage before referral to the WRC, and have measured compensation accordingly. Once a complaint has been declared well-founded, Section 27(3) provides that an adjudication officer may: “(b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” Having regard to all the circumstances, I deem it just and equitable to direct the Respondent to put a system in place that will ensure compliance with Section 12 of the Act and further to pay the Complainant compensation of €1,673, equating to 3 weeks’ gross remuneration.

Overall Award:

For the avoidance of doubt, the overall sum of compensation awarded to the Complainant is €3,346, comprising of €1,673 under Section 7 of the Terms of Employment (Information) Act 1994 and €1,673 under Section 27 of the Organisation of Working Time Act 1997. Accordingly, I direct that the Respondent pays the sum of €3,346 to the Complainant within 42 days of the date hereof. This sum is awarded by way of compensation as opposed to economic or monetary loss of earnings. Dated:   18/12/17 Workplace Relations Commission Adjudication Officer: Aideen Collard Key Words: Sections 3 and 5 of the Terms of Employment (Information) Act 1994 (written terms and conditions of employment) - Section 12 of the Organisation of Working Time Act 1997 (rest breaks)