Complainant

Respondent

Anonymised Parties

A Bakery Assistant

A Food Preparation Company

Representatives

Blazej Nowak

T Smyth &    Associates

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-00008615-001

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-002

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-003

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-004

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-005

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-006

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-007

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00008615-008

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-009

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-010

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-011

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-012

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-013

05/12/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00008615-014

05/12/2016

This Adjudication contains 14 separate   complaints. Eight under the   Organisation of Working Time Act, 1997 and six under the Terms of Employment   (Information) Act, 1994

CA-00008615-001

Breach of Section   19 Records not provided –Annual Leave not Given as required -.

CA-00008615-002

Breach of Section 20   Records not provided –Annual Leave not Given as required

CA-00008615-003

Breach of   Section 11 Annual Leave not Given as required

CA-00008615-004

Breach of Section   12 – no Daily Breaks

CA-00008615-005

Breach of Section   11 – no Daily Rest periods

CA-00008615-006

Section 21 & 22

No Public Holidays   /August

CA-00008615-007

Section 21 & 22

No Public Holidays   October

CA-00008615-008

Section 14

No Sunday Premium

CA-00008615-009

Section 3(b)

No Statement if Writing of Address of employer

CA-00008615-010

Section 3(c)

No Statement if Writing of /Details of Place of Work

CA -0 000861 5-011

Section 3(g)

No Statement if Writing of Pay details /method of   calculation /reference periods / for National Minimum Wage

CA-00008615-012

Section 3(ga)

Requests for written statements of the employee’s average   hourly rate of pay for the pay reference period specified.

CA-00008615-013

Section 4

Employer to sign statements as supplied under Sub Section 1

CA-00008615-014

Statement in   Writing of Times of Breaks under Org of WT Act, 1997

The claims under the Terms of Employment (Information)   Act, 1994 are without foundation. A   comprehensive contract of employment and handbook were provide to the Complainant.   This addresses all his allegations.

The Organisation of Working Time Act, 1997 allegations are   completely without any specific details (save the two public holiday   complaints). The Respondent can only answer non specific complaints with   generalised statements of his policy.   The Complainant is still an employee and any Annual leave arrears   adjustments etc. can be addressed on his return from sick leave. In this   context the Respondent has addressed the Public Holiday complaints in recent   weeks.

4:1            General Observations on Claims / Burden   of Proof Required.

The case in hand has fourteen complaints – those under the   Terms of Employment (Information) Act, 1994 are clear cut while those under   the Organisation of Working Time Act, 1997 are ,save for the two public   holidays , generalised and lacking in specific details .

The question of the Burden of Proof is a critical   consideration.

Organisation of Working Time Act   claims - CA-00008615-001 to CA-00008615-008

As regards the Organisation of Working Time Act, 1997 DJ - 00001598 provides a very useful   summary and I quote from this Adjudication below.

In this ADJ the Adjudicator had reference to, in   relation, to statutory breaks, to Section 12(1) of the Organisation of   Working Time Act 1997 which 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 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).”

From this it can be generally accepted that 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 that the provisions of   the Organisation of Working Time Act 1997 are complied with

Legal precedent would further indicate that how the   burden of proof pertaining to such matters is set out can be found in the   Labour Court decision of Circus Gerbola   Limited -v- El Mostafa Chtabbou MWD 1211, relying on Jakonis Antanas -v-   Nolan Transport (2011) 22 ELR 311 as follows:

“In   Jakonis Antanas v Nolan Transport this Court held as follows in relation to   the application of Section 25(4) of the Organisation of Working Time Act   1997, which is similarly worded to Section 22(3) of the Act: -

The   burden on a Respondent of proving compliance with the Act arises in   proceedings in which a complaint of non-compliance is made. It is clear from   Section 27(2) of the Act that the jurisdiction of the Rights Commissioner is   invoked by an aggrieved worker, or his or her trade union, by presenting a   complaint to a Rights Commissioner that his or her employer has contravened a   relevant provision of the Act in relation to him or her. The subsection goes   on to provide that where a complaint is made the Rights Commissioner shall   give the parties an opportunity to be heard and to present to the   commissioner any evidence relevant to the complaint.

This   suggests that the evidential burden is on the claimant to adduce such   evidence as is available to support a stateable case of non-compliance with a   relevant provision of the Act. It seems to the Court that, as a matter of   basic fairness, the claimant should be required to do so with sufficient   particularity as to allow the Respondent to know, in broad terms, the nature   of the complaint and the case which they are expected to meet. As was pointed   out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963]   A.C. 386 an evidential burden is satisfied where the evidence adduced is   sufficient to “suggest a reasonable possibility”.

Applying the aforesaid test to the instant facts of this   case , I am not satisfied that the Complainant has overcome the first low   hurdle of providing sufficient evidence to support a stateable case of   non-compliance with the relevant Sections of the Act, sufficient to “suggest   a reasonable possibility” of non-compliance with the Act.

The Respondent, rightly in my view, maintained that   without even generalised details he could not defend his case.

4:1(2)       Records  

As regards the provision of records the Respondent is a   modern well established business with all required records. The Complainant   never made any specific requests other than generalised statements regarding   the obligation on the Respondent to provide same.

The Respondent Company gave direct evidence to the above   point – I found this evidence persuasive.

Accordingly I did not feel that the Complainant had   adequately established a “stateable” case as regards the Claims quoted. The   claim was accordingly not well founded.

4:1(3)       Public   Holidays and Annual Leave Adjustments

The Respondent gave evidence that the Public Holiday   issue had been addressed since the lodging of the claim form. This appeared   to have been accepted by the Complainant personally at the hearing. Any   issues with Annual leave, if any, could be addressed on the Complainants’   return to work. The Complainant had always been afforded his Annual leave. No   specific instances of non availability of or refusal of Annual Leave was put   forward by the Complainant.

The claim was not well founded.

4:1(4)     Daily   and weekly Breaks

The Respondent pointed to his generalised policy   statements and gave oral evidence that the Respondent had, as a matter of   policy, always compiled with all relevant statutory provisions. This was open   to cross examination by the Complainant’s Advisor. No specific details were   provided or particular instances of complaint that could have raised an   inference of a breach of any of these terms.   The claim was not well founded.

4:1(5)     Sunday   Premiums

The Sunday Premium is time plus one tenth. The Respondent   gave direct oral evidence that whenever the Complainant was required to work   Sundays, which would have been most infrequently, this was paid to him.   Specific instances of non payment (for investigation) were not available from   the Complainant or his Advisor.

I was satisfied with the compliance of the Respondent   and the claim was not well founded.

4:1(6) Terms   of Employment (Information) Act, 1994

claims CA-00008615-009 - CA -008615-014

The Respondent   produced in evidence at the oral hearing a detailed Employee Handbook and   copies of all relevant employment documents regarding the Complainant. These were all open to examination and   cross examination of the Respondent witness by the Complainant’s Advisor.

All documents   produced bore the Complainant’s signature to acknowledge receipt of same. From   a detailed study of these documents I was satisfied that all the issues   referred to in the Complaints listed ( addresses of business, place of work ,   rates of and methods of remuneration , signature of documents,) had been   satisfied to the required extent. The   Complaints were not well founded.

4:2             Specific Details   and Decisions per claim are set out in   the table below.

(a)             Organisation of Working Time Act, 1997

(b)                Terms of Employment Information Act,   1994

CA-00008615-001

CA-00008615-006

CA-00008615-011

CA-00008615-002

CA-00008615-007

CA-00008615-012

CA-00008615-003

CA-00008615-008

CA-00008615-013

CA-00008615-004

CA-00008615-009

CA-00008615-014

CA-00008615-005

CA-00008615-010