Complainant

Respondent

Anonymised Parties

Sales Assistant

Retailer and Fuel Station

Representatives

Mandate Trade Union

IBEC

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-00010136-001

08/03/2017

The complainant commenced employment on 27^th September 2005 and has always worked in the fuel station working 25 hours per week and on a current shift of 8am – 1pm/1pm-6pm/6pm-11pm.

Over the years staffing levels have dropped and there is only one person per shift at the filling station such that it was not possible to take a 15 minute break if employees worked in excess of four and a half hours, as it would require someone to keep an eye on the pumps at all times.

The matter has been ongoing and while it has now been addressed in that the complainant is afforded her 15 minute rest period, the fact remains that the complainant did not get her correct entitlement for a significant period of time owing to the failure of the respondent to address the issue. The matter was referred to conciliation but the respondent refused to attend.

Reference was made to Labour Cases (including LCR21154 and LCR21155) regarding the failure of the respondent to provide 15 minute breaks.

Her representative argued that there was reasonable cause for an extension of the six months reference period as the matter was ongoing for some time, was raised as a collective grievance in October 2016 and the respondent delayed and failed to engage in the process.

The respondent detailed a number of preliminary issues, namely that the complainant has failed to specify the dates and time of the alleged breaches of the Act and there is only jurisdiction to consider contravention of the Act within the six month timeframe immediately preceding the date of referral to the WRC, (9^th Sept 2016 – 8th March 2017).

On the substantive issue, the respondent detailed that they operate a clocking system and the complainants had been advised by the complainant’s representatives not to utilise the clock out system at break times.

The rest break policy is set out in the employee handbook and in contracts of employment which the complainant received and signed. The complainant is an employee of long service and it is highly disingenuous to suggest that the complainant did not receive breaks for many years.

While it is accepted that the 15 minute breaks were not recorded, the respondent would contend that the breaks were taken and advised that the Labour Court recommendations referred to had been taken under Industrial Relations Act and not Organisation of Working Time Act which was the claim in the instant case.

On the preliminary issues, I am satisfied that the complainant has specified the details of the breaches of the Act. With regards to whether there is reasonable cause to allow for an examination of the complaint, Section 41(6) of the Workplace Relations Act 2015 provides

“(6)Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Furthermore, Section 41(8) details:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The test consistently used (referred to in DWT1720), for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Determination DWT0338 –Cementation Skanska and Carroll in the following terms: -

It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

I am satisfied based on all the evidence, including when the grievance was raised and that the respondent’s failure to proceed to a conciliation conference added to the delay, and that it is reasonable in the circumstances to exercise my discretion in favour of granting an extension of time such that there is reasonable cause to entertain a complaint presented to me after the expiration of the period.

On the substantive issue, Section 25 of the Act requires an employer to maintain records of employees’ rest breaks and working time. Where it fails to keep such records the burden of proving compliance with the provisions of the Act lies with the employer. In this case the Respondent advised that it did not keep such records and albeit they strongly disputed that the complaint did not get her breaks, the burden of proving compliance with the provisions of Section 12 of the Act lies with the employer.

Having considered all the evidence accordingly I find that the Respondent has failed to discharge the burden of proving compliance with the provision of Sections 12(1) of the Act during the relevant period.

I determine that the complaint made by the Complainant alleging breaches of Section 12(1) of the Act is well founded and award the complainant compensation in the sum of €500 for breaches of Section 12 of the Organisation of Working Time Act, 1997.

15 minute rest break, Organisation of Working Time Act