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-00008028-001

07/11/2016

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

CA-00008028-002

07/11/2016

The Complainant is employed as   a Line Manager with the Respondent. He   commenced employment on the 3^rd November 2008. He is paid a monthly salary of €2,800   gross. He alleges that the Respondent   failed to provide him with daily rest periods of at least 11 hours per day   contrary to section 11 of the 1997 Act. He also alleges that the Respondent failed   to provide him with rest breaks contrary to section 12 of the 1997 Act. He   filed the complaint with the WRC on the 7^th November 2016.

Complaint 1: CA-00008028-001    in relation to alleged breaches of section 11 of the 1997 Act

The Complainant’s   representative outlined the following submission:

The Respondent failed to   provide the Complainant with daily rest periods of at least 11 hours contrary   to section 11 of the 1997. The Complainant’s reference period is the 6 months   prior to him lodging his complaint and would therefore run from 7^th   May 2016 to 7^th November 2016, in ordinary circumstances but due   to his absence from August 2016 to date the period from the 7^th   May 2016 to 18^th August 2016 is the appropriate period in relation   to this claim. There were 14 breaches of the 11-hour rule as set out in   records submitted at the hearing. This is entirely contrary to the submission   set out by the Respondent.

Complaint 2: CA-00008028-002    in relation to alleged breaches of section 12 of the 1997 Act

The two most commonly cited   provisions of section 12 are sections 12(1) and 12(2) as follows:

(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).

There is a view expressed by   some employers and their representatives that this means that after four and   half hours the employee must receive a 15 minute break and a further one and   half hours a further 15 minute break. This is not the position. If an employer after 4 hours and 30 minutes   provides the employee with a 15 minute break then after a further one hour   and 30 minutes the employer must provide the employee with a 30 minute break.  

If however the employer after 4   hours and 30 minutes provides the employee with a 30 minute break this   complies with the provisions of subsection (1) and subsection (2). The employee can then work for a further   period of 4 hours and 30 minutes before the employer must provide the   employee with a further 30 minute break.

The Respondent, in their   Handbook at pages 19 and 25, set out their own policy on rest and breaks, but   have blatantly and unashamedly failed to adhere to either in this instant   case.

The Respondent have raised the   argument that it is a matter for the employee to take their own breaks, this   is not the position. The law required   the employer to ensure that the rest intervals at work are not only scheduled   and that those rights are in some policy or other documentation but that   those rights are actually observed.   The Respondent has not such records at all.

The Complainant would typically   commence work at 7am, 8am or 12pm.   When he started at 7 or 8 in the morning, in any given week he would   not get a break until 1 or 2pm at least twice a week. When he started at 12 he would not get a   break until 5pm at the earliest.

Complaint 1: CA-00008028-001    in relation to alleged breaches of section 11 of the 1997 Act

The Respondent’s representative outlined the following   submission:

The Complainant is a Line Manager with the   organisation. He is fully aware of the   obligations relating to section 11 of the 1997 Act. If he failed to take   daily rest periods he should have been aware as a manager that he was   breaching the act and he should have brought the matter to the attention of   the organisation.

The Respondent strongly refutes the Complainant’s   allegation that he “would frequently be required to stay beyond his finish   time”.

The   Complainant has set shift times for which he is required to attend work and   which have been developed in line with the provisions of the Organisation   Working Time Act.

The   Respondent would argue that there was no expectation or “requirement” on the   Respondent’s behalf for the Complainant to work beyond his rostered hours.

Furthermore,   the Complainant’s position that he frequently “complained” to members of   management and HR are completely unfounded as the first time the Respondent   became aware that the Complainant had any concerns regarding his working   hours was by letter of the 14 September 2016, after his current absence   commenced. In this letter the   Complainant made serious allegations that he attributed his absence to   “inadequate rest periods and break periods I have received”, without   providing any exact dates, times or details of the alleged incidents. Nevertheless the Respondent scheduled   numerous meetings with the Complainant in an attempt to understand his claims   better and try to facilitate his return to work, however, the Complainant   refused to engage with the company and referred the matter to his legal   representative and the WRC.

Complaint 2: CA-00008028-002    in relation to alleged breaches of section 12 of the 1997 Act

Due to the   nature of the business it is not feasible for senior management to roster   break times. Instead the line   management team decide the break and lunch times among themselves and for   their team members at their discretion on a daily basis. Therefore, all member of the management   team are clearly aware of their daily rest breaks entitlements and are expected   to avail of these or notify senior management in circumstances where they   were unable to do so.

Notwithstanding   that the Complainant clearly understood his break entitlements as stated in   his claim form, all employees are notified in writing of their rest break   entitlements to breaks via the company handbook. The Complainant signed to confirm his   receipt of same in October 2012. The   rest break policy clearly stipulates who to contact if an individual is   unable to avail of his/her rest break entitlements, citing “if you are unsure   about any aspect of roster or if you believe you have not received an   entitlement please speak to your Personnel Manager”.

As a member   of the management team with significant autonomy around taking rest breaks,   it is reasonable to expect that the Complainant would have brought any   purported failure to receive breaks to the attention of his own manager or   the Personnel Manager while he was at work.   Had he done so he would have been advised to take compensatory rest in   accordance with the provision of the Organisation of Working Time Act 1997.   The fact that the Complainant took responsibility for insuring this own team   members avail of their rest breaks, it would be reasonable to conclude that   he would be aware of the obligation to take rest break himself as required by   the law.

Complaint 1: CA-00008028-001    in relation to alleged breaches of section 11 of the 1997 Act

Based on the evidence presented at   the hearing I find as follows:

It is clear   from the evidence presented and the documents provided by the Complainant   that the Respondent failed to provide the Complainant daily rest periods of   at least 11 hours contrary to section 11 of the Organisation of Working Time   Act 1997. The Respondent should have a mechanism in place to ensure that any   breaches of this section are monitored and remedied. The Respondent failed to   monitor these breaches.

Complaint 2: CA-00008028-002    in relation to alleged breaches of section 12 of the 1997 Act

The   Respondent failed to keep any records to monitor compliance of section 12 of   the Act in relation to the Complaint. The Respondent should have a mechanism   in place to ensure that any breaches of this section are monitored and   remedied.  

Complaint 1: CA-00008028-001    in relation to alleged breaches of section 11 of the 1997 Act

Based on the   evidence presented at the hearing, I find that the complaint is well   founded. The Respondent breached   section 11 of the Act in relation to the complainant.

I order the   Respondent to pay to the Complainant €1,000 for breaches of section 11 of the   Act. This sum must be paid within six weeks of the date of this decision.

Complaint 2: CA-00008028-002    in relation to alleged breaches of section 12 of the 1997 Act

Based on the   evidence presented at the hearing, I find that the complaint is well   founded. The Respondent breached   section 12 of the Act in relation to the complainant.

I order the   Respondent to pay to the Complainant €1,000 for breaches of section 12 of the   Act. This sum must be paid within six weeks of the date of this decision.