DWT1717

This is Ruth Murphy’s (“the Complainant”) appeal from a decision of an Adjudication Officer (ADJ-00004633, dated 24 April 2017) under the Organisation of Working Time Act 1997 (“the Act”). The Notice of Appeal was received by the Court on 5 May 2017. The Court heard the appeal in Dublin on 11 July 2017 2017 in conjunction with the Complainant’s appeal under the Terms of Employment (Information) Act 1994, which appeal is the subject of a separate determination (TE/17/17).

The Complainant was employed by Medfit Wellness Limited (“the Respondent”) as a receptionist from 16 November 2015 until her employment ended on 9 July 2016. She was paid a monthly salary of €2,166.67. She was rostered to work 7 or 8 hours per day, five days per week. Her claim under the 1997 Act is that, more often than not, she did not receive her daily rest break entitlement of 30 minutes. At first instance, the Adjudication Officer decided her claim was well-founded and made an award of €250.00 in compensation.

Complainant’s Submission

The Complainant told the Court that she rarely received either a 15-minute or 30-minute daily rest break while employed by the Respondent. She says that in order to eat her lunch she was forced to step away from the reception desk into a storage area and that she was frequently interrupted when she did so. In reply to a question from the Court, the Complainant conceded that she did not formally query her employer’s failure to grant her a daily rest break at any stage during the nine months of her employment as she was under probation and “didn’t want to rock the boat”.

Mr Grogan for the Complainant submits that the quantum of compensation awarded by the Adjudication Officer is too low having regard to the jurisprudence of this Court in similar cases and having regard to principles established by the Court of Justice in Case 14/83 -von Colson and Kamann v Land Nordrhein-Westfalen.

Employer’s Submission

Mr O’Grady for the employer told the Court that he had personally seen the Complainant taking her full break on many occasions. He, nevertheless, conceded that the Respondent had not kept records of the rest breaks afforded to the Complainant. He submits that the level of compensation awarded at first instance in this case is appropriate and should not be increased by the Court.

Discussion and Decision

The Court found the evidence of the Complainant to be cogent and credible. It has also noted Mr O’Grady’s evidence. However, the Court must be cognisant of section 25(4) of the Act which provides:

• “(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 [an Adjudication Officer] or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The decision of the Adjudication Officer is varied accordingly.

The Court do determines.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
13 July 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.