ADJ-00007324

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007324

Parties:

	Complainant	Respondent
Parties	A Catering Worker	A Food Preparation Unit

Representatives

John-Anthony Devlin of Barron Morris, Solicitors

David O’Riordan of Sherwin O'Riordan Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00009857-001	22/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-002	22/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-003	22/02/2017

Date of Adjudication Hearing: 19/06/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

This case is linked to ADJ 7634 – a duplicate claim. ADJ 7634 was withdrawn at the hearing.

The issue of the multiple claims was due to clarification being required as to the Correct legal Respondent. This issue was resolved at the commencement of the hearing.

Certain matters of clarification regarding a Statutory Instrument arose post the hearing and this delayed the issue of the Adjudication.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary of Complaint.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00009857-001	A written statement was not received by the Complainant outlining all the required details regarding her employment.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-002	The Complainant was not given compensation for Sunday work.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-003	For the first 4 weeks of her employment the Complainant was not given the required breaks. SI 57 /1998 ( Breaks at Work for Shop Employees) should have applied

2: Summary of Respondent’s Case:


Act	Complaint/Dispute Reference No.	Summary of Respondents rebuttal arguments.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00009857-001	While it was accepted that certain minor drafting formalities may have been omitted a full written contract was issued to and signed for by the Complainant on the 18^th of April 2016.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-002	A Composite Rate of Pay is normally paid It was an oversight that this was not made clear to the Complainant. The Complainant only worked three (3) Sundays and the infraction of her rights was inadvertent and minor.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009857-003	Detailed written records for the Complainant were not available for the period from the start of employment (15/04/2016) until the 2^nd May 2016. However from this date all records showed that full compliance had been made with all legal provisions. SI 57/1998 does not apply as the Complainant was engaged in “food Preparation” an activity precluded under Section d, ii of the Instrument.

3: Findings and Conclusions:


Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00009857-001	22/02/2017

Having reviewed the Documents exhibited in evidence I noticed that the Document of the 18^th of April 2016 while in an overall sense satisfactory was somewhat lacking in some other required details such as the name and address of the overall employer. The Complainants’ direct positon in the Company was stated. The infractions of the Act were however quite minor and appeared to be more of an administrative oversight than any significant breach.

The claim is well founded albeit on minor technical matters.

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

CA-00009857-002

The Complainant was not given compensation for Sunday work.

Nowhere in the documents produced in evidence could a separate provision be found for Sunday Work. It was admitted by the Respondent that was unintentional and as the Complainant had only worked three Sundays any losses were minimal.

Labour Court precedent is now strong on the Sunday Premium point. Sunday Premium has to be specified clearly. DWT 15104 Tansey Transport v Marek Rog states in a finding that the Respondent “had not identified the proportion of that difference that constitutes the premium for working on Sunday”.

In the case in hand no premium appeared to have been specified or paid for Sunday Work.

The claim is well founded here.

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

CA-00009857-003

Breaks at work.

Reviewing the evidence and the written records from the 2^nd of May 2016 it appeared that all required breaks were given. The assumption that a different system applied in the early few weeks I found hard to sustain. I did not find the oral evidence on this point convincing.

I did not accept that this element of the claim was well founded.

Regarding SI. No 57/1998 I found this an interesting argument for a multi-site and multi activity employment. Legal Representatives were afforded a post hearing opportunity to make supplemental submissions.

However the Complainant was clearly engaged in the Food/Refreshment Section of the overall business – her employer was stated to be the Sub Section “Respondent Baking”. As such I had to accept that SI/ No 57 – Organisation of Working Time (Breaks for Shop Employees) Regulations, 1998 did not apply to her.

The relevant section of the Instrument is quoted below.

SI No 57/1998 Section 2 (d) (ii)

but does not include—

(ii) any premises used for, or so much (if any) of a premises referred to in a preceding provision of this definition as is used for, the purpose of—

(I) a hotel,

(II) the preparation of food or the catering for any persons as respects their requirements in respect of food or drink, or

(III) any business carried on pursuant to an intoxicating liquor licence;

4 Decision and Redress awarded.

Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Decision /Detailed arguments in Section 3 of this Adjudication above.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - Lack of Certain Work / Employer Details	CA-00009857-001	A number of minor Technical details were omitted in the early correspondence. However the matters were minor and no material disadvantage occurred to the Complainant. A Lump Sum of € 100 Euro be paid to the Complainant as Compensation for the minor infractions of her rights.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - Sunday Work.	CA-00009857-002	The Respondent, by not specifying in the written documents the Sunday Premium arrangements was technically in breach of the OFWT Act, 1997 as interpreted by the Labour Court. The Respondent does in fact have a 20% Sunday premium. However the breach was minor and the Complainant worked very few Sundays in the period covered by the written records supplied. A Lump Sum of €100 Euro as Compensation for the Breach of the statutory right is awarded to the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - Work Breaks	CA-00009857-003	I did not find this claim well founded and it was dismissed.

All Lump Sum Redress amounts cited above are given as Gross Figures. The treatment of same as regards Taxation is subject to the approval of the Revenue Commissioners.

Dated: 25^th September 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

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