ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008442
Complaints:
|
Act | Complaint 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-00011501-001 | 22/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00011501-002 | 22/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00011501-003 | 22/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00011501-004 Withdrawn at Hearing | 22/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00011501-005 Withdrawn at Hearing | 22/05/2017 |
Date of Adjudication Hearing: 22/08/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act ,1997, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Case involves three claims under the Organisation of Working Time Act, 1997. |
Summary of Complainant’s Case:
The Complainant commenced work as a Food and Beverage Assistant in a busy hotel on 18 January 2017. He was paid €10 per hour for a 40 hr week. The Complainant finished his employment on 28 April 2017 and submitted his 5 complaints to the WRC on 22 May, 2017. He withdrew the final two complaints CA -00011501-004 and CA-00011501-005 during the hearing. CA -00011501-001 The Complainant outlined that he had not received 11-hour rest periods between shifts. He contended that this was a breach of Section 11 of the Act. The Complainant submitted that in the actual course of events, he was not tied to the roster and had to stay at work until late in the morning. The Night Manger had nothing to do with him. He denied having an Introduction day. He described that he found the Hotel an Intimidating place to work. The Complainant confirmed that he had raised the issue of the 11-hour rest periods but was not heard on it. He sought Compensation for the breach of Section 11. CA -00011501-002 The Complainant submitted that he had often worked 6 hour shifts without receiving a break. He submitted that he was compelled to stay on the floor, sometimes until late into the morning. This negated his opportunity to avail of breaks. He submitted that it was not his practice to clock in and out for breaks. He confirmed that he had raised the issue of his being denied breaks with his Managers but he had not been heard. He confirmed that he had availed of short smoking breaks, sometimes twice per shift where he used “rollies “taking 30 seconds to roll up. These breaks were given by his Supervisor and he contended that smoking breaks were distinguished from rest breaks. The Complainant submitted that the Hotel had changed its recording of breaks procedure at the end of 2016 and he contended that Section 12 of the Act had been breached in his case. CA -00011501-003 The Complainant submitted that there were occasions where he worked over 7 days without a day off and contended that Section 13 of the Act had been breached. |
Summary of Respondent’s Case:
The Complainant commenced work with the Respondent on 18 January, 2017.The Respondent submitted a copy of the Complainants Contract of Employment and Job Description. The Respondent outlined that he complainant had received a copy of the Employee Handbook, which incorporated the Grievance Procedure at the commencement of his employment. The Respondent operates a hand clock in machine as a mechanism for recording the hours worked. The Complainant was fully trained in the use of this device as it was he employees responsibility to clock in and out at the start and end of his shift and his breaks. Any problems arising were to be raised with the complainants Supervisor. The Complainant had a standard working week of 44.29 hrs on a Monday to Sunday rotation. Notification of the roster was provided one week in advance. The Complainant was summarily dismissed during his probation period for breaches of the Respondent Social Media Policy. After the Complainants termination of employment, he posted further derogatory and threatening remarks on a Social Media Site, which he eventually removed. The Complainant had not raised any of the issues Germaine to the complaints before the WRC during his employment. The Respondent accepted that CA -00011501-004 and CA-00011501-005 were both withdrawn at Hearing. CA -00011501-001 The Respondent outlined details of the complainants working hours, 25 January 2017 to 27 April 2017. The Respondent submitted that the Hotel had complied with the 11-hour rest period save on 4 occasions where on
The Respondent submitted that the late shift of 5 pm to close of business was not accompanied by a Managerial or Supervisory presence and the complainant held a certain discretion to close the restaurant and complete the cleaning procedure. The Respondent submitted that the breaches were minor in nature and should be viewed in the context that the Business ran on a24 hour basis. A Duty Manager was present always and it was open to the complainant to address his concerns to this Manager in real time during his employment and he chose not to do so. The Respondent opposed the concept of an award of compensation. CA-00011501-002 Section 12 Rest breaks The Respondent submitted that the Complainant had not attributed any reason for not being able to take breaks on his complaint form. The Respondent confirmed that the Complainant had availed of breaks in accordance with Section 12 of the Act. The Complainant had not raised this issue during his employment. The Complainant had a variable hour work pattern set out on a weekly roster. He was required to cooperate fully with the Hotels clocking in and out device when it came to breaks. The Complainant had recorded his signature to a document on “Break Entitlements” dated 27 January, 2017. Employees are entitled to: A daily rest period of 11 consecutive hours per 24 hours. A weekly rest period of 24 consecutive hours per seven days. A 15-minute break if working 4.5 hrs A 30-minute break if working 6 hours. In addition, the Complainant was allowed one free meal a day during service. The Respondent submitted that the Hotel had placed a reminder to staff on the roster to raise a complaint if they had not received their break If for any reason beyond your control you are unable to take your break at this required time, you must inform your supervisor /line. The Hotel also made a complaint form available for staff to report the missed breaks. This was displayed in the canteen. The Respondent submitted a copy at hearing. The Respondent also submitted a spreadsheet on the complainant’s attendance times at work. The breaks were recorded. On the small number of occasions where the Complainant did not sign in or out for his breaks, there was no record of him having raised a concern that he had not received the break. The Respondent submitted that the Act had been complied with in full and that any omission in breaks fell to being the responsibility of the complainant rather than the respondent. The Respondent also alleged that the Complainant had availed of additional smoking breaks while at work. The Respondent provided a Staff Room to host the breaks. In this, the Respondent relied upon the Labour Court Authority of Noonan Services Group ltd and Andrius Stasaitis DWT 13121. A Manager for the Respondent gave evidence of the timing of breaks: 12 noon to 10 pm Breaks between 4.30 pm and 6 pm 5 pm to Close Breaks between 9 and 10 pm He contended that the Complainant had received his breaks and he had not been approached by the complainant in relation to missed breaks. He submitted that the missed break record form was placed next to the Holiday Request form in a Folder. He had personally seen the complainant when he was on break time. He submitted that he normally went home at 10.30 pm and the Duty Manager left at 12.30 am. A Night Manager was on Duty after that. The respondent acted in full compliance with the recording requirements outlined in Section 25(1) of the Act. The Respondent submitted that as a system was in place to record days and hours worked and the start and end times of a work period, the Respondent was then exempt from retaining records as provided for in Regulation 5(1)(b) of S.I 473 of 2001. The Respondent opposed any concept of compensation payable in this case. CA- 00011501-003 Weekly Rest Periods The Respondent rejected this claim and confirmed that weekly rest times had been in accordance with the statutory requirements in Section 13(3)(a) The Respondent concluded by re-affirming that the Complainant had not used the Grievance Procedure to address any of these claims during his employment. The Respondent sought that the claims be dismissed without an award of compensation. |
Findings and Conclusions:
I have considered both party’s submissions both written and oral in this case. It was clear to me that the employment had ended in an acrimonious fashion and there were overtures to that effect visible during the hearing. However, my role here is to inquire into the three live complaints, to assess the facts as submitted and apply the law to these facts. I have no role in the circumstances of the dismissal. CA -00011501-001 Daily rest periods The Complainant has not particularised his claim in terms of identifying the actual quantum of alleged breaches of Section 11. The Respondent has confirmed 4 breaches and asked that they be considered as technical breaches in my deliberations. I note that Page 10 of the Handbook provides for the following clause in relation to Daily Rest Periods: Employees affected by this legislation must take a rest period of 11 consecutive hours in each 24-hour period (as far as reasonably practical). It goes on to provide for a notification procedure which should accompany a missed rest period. I appreciate that the Complainant held a genuine belief that he had raised this issue during his employment, yet I must also appreciate that no material records of this reportage exist. Daily rest period. Section 11 of the Act on Daily Rest Periods— An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer. I find that the complaint is well founded in respect of the four highlighted breaches of Section 11 of the legislation CA -00011501-002 Daily break There was considerable conflict in evidence between the parties on this claim. The Complainant submitted that he often worked over a 6-hour period without receiving a break. The respondent drew my attention to the Clocking In device generated records in this regard. While the Complainant submitted that he had not clock out for breaks, the records displayed something different I found 42 recorded entries of start and finish time for breaks in the cognisable period of employment. I also found 28 instances where breaks were not recorded during the same period. This was not disputed by the complainant, who had not particularised the quantum of breaks missed by him. I am influenced by the evidence of the Management representative on how breaks were provided. However, I also noted that the attendance pattern of the complainant over ran that of the Manager in question. I noted that many shifts went late into the night and were during the two-person attendance time described at the hearing. I accept that the Complainant did not raise an official grievance in pursuance of the breaks. I note the Respondent reliance on the Labour Court case of Stamatis, however, there were some variance in the facts of the case as the complainant in that case fell within the ambit of the General Exemptions Regulations 1998. I accept that the Respondent did specifically determine periods during the working day, where breaks were to be taken as borne out in the spreadsheet records. It seems that the difficulty in this case arose when the working time went into the night time. Rests and intervals at work.
Section 12 of the Act. — (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). I accept the Complainants evidence that he had to work late into the Night. However, I had difficulty in accepting his reasoning for not advancing his claim for time in lieu of breaks during his employment. I accept that the Respondent gave a clear direction on breaks on the roster and in the “catch up “form. However, I have found that there were some instances where the complainant was not provided with break times within his span of duty and notwithstanding the short smoking breaks where the complainant told the hearing that he used “rollies” which were assembled in seconds, I have found that the complaint is well founded. CA- 00011501-003 Weekly Rest Periods The Complainant did not particularise this claim and did not submit any evidence or documentation of a breach of Section 13 of the Act. I find that I have insufficient evidence before me to find for the complainant. I find that the complaint is not well founded. Decision: Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 27 of the Organisation of Working Time Act requires that I decide in accordance with Section 11, 12 and Section 13 of the Act. CA -00011501-001 Daily rest periods I have found that the complaint is well founded and I order the Respondent to pay the complainant €100 in compensation for the breach of Section 11 of the Act. CA -00011501-002 Daily breaks I have found that the complaint is well founded and I order the Respondent to pay the complainant € 150 in compensation for the breach of Section 12 of the Act.
CA -00011501-003 Weekly Rest Periods I have found that the claim is not well founded. |
Dated: 27/11/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Daily, Weekly Rest Periods. |