ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005397

Parties:

Complaints/Dispute:

Dates of Adjudication Hearing: 24th November 2017 & 19th February 2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The aforesaid complaints/dispute were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 12th October 2016. In accordance with Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the aforesaid complaints/dispute to me by the Director General, I inquired into same. The Complainant was represented by an Industrial Relations Representative and the Respondent was represented by Peninsula Group Limited. This matter was originally designated as a country case before being reassigned back to Dublin. Thereafter, the original hearing date was adjourned for a short period to accommodate the Complainant who had commenced a new role in the UK. I proceeded to hearing on the rescheduled date of 24th November 2017. The Complainant was in attendance with her Representative whilst a number of witnesses including a Director of ‘X Productions DAC’ were in attendance on behalf of the Respondent. A preliminary issue was raised as to whether the Respondent referred to on the complaint form was the Complainant’s employer. Following ‘without prejudice’ talks, these complaints/dispute were withdrawn subject to conclusion of a settlement within 28 days thereof. As this settlement was not successfully concluded within that time-frame and in accordance with the terms of the withdrawal, the Complainant’s Representative sought a new hearing date which was scheduled for 19th February 2018. On that date, I proceeded to hearing and gave the Parties an opportunity to be heard by me and to present any evidence relevant to these complaints/dispute. All oral evidence, written submissions, supporting documentation and case law presented by both Parties have been taken into consideration when coming to this decision/recommendation. A complaint under Section 16 of the Protection of Employees (Part-time Work) Act 2001 (CA-00007583-001) was withdrawn. The Respondent persisted with its preliminary objection that it was not the Complainant’s employer, which I addressed at the outset of the hearing as set out hereunder before proceeding to hear the substantive complaint.

Background:

The Complainant was employed by ‘X Productions DAC’ on an intended specified purpose contract as a Trainee Assistant Director for a film production due to run from 20th September - 25th November 2016. She earned €700 gross per week. She contended that she was summarily dismissed some two weeks into the contract and not having the requisite 12 months’ service for a complaint under the Unfair Dismissals Act 1977, sought compensation under Section 13 of the Industrial Relations Act 1969. She also sought compensation for the Respondent’s alleged failure to provide her with a written statement containing the particulars of her employment contrary to Section 3 of the Terms of Employment (Information) Act 1994, for requiring her to work excessive weekly hours contrary to Section 15 of the Organisation of Working Time Act 1997, and for not affording her statutory breaks contrary to Section 12 of the Organisation of Working Time Act 1997.

Preliminary Issue:

It was common-case that under the heading ‘Respondent Details – Name/Company’, the complaint form referring the complaints/dispute herein referred to a registered business name, namely, ‘A Film Production Company’ as opposed to referring to the correct legal title of the Complainant’s employer, being ‘X Productions DAC’. It was not in issue that the business name ‘A Film Production Company’ was associated with the production of the film in question. However, each film production is set up as a separate company and ‘X Productions DAC’ was set up specifically for the purposes of production of the film in question and was the Complainant’s employer. Whilst the Respondent’s Representative confirmed that the business name ‘A Film Production Company’ was also used by a common Director with ‘X Productions DAC’ who attended at the first hearing, he contended that they were separate legal entities. In this respect, reliance was placed upon Travelodge Management Limited -v- Sylwia Wach EDA 1511, wherein the Labour Court found that whilst proceedings may be amended to correct the title of a Respondent, they cannot be changed so as to implead an entirely different legal entity. Given the misstatement of the Complainant’s employer’s name on the complaint form, it was submitted on behalf of the Respondent that the WRC should decline jurisdiction to hear these complaints/dispute and accordingly dismiss same.

The Complainant’s Representative made an application to amend the Respondent’s name to ‘X Productions DAC’. For the purposes of same, reliance was placed upon the provisions for amendment provided for by Section 39 of the Organisation of Working Time Act 1997, along with the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA (as followed by theLabour Court in Ballarat Clothing Ltd -v- Ann Aziz EDA 151)wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)…. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Given the apparently conflicting authorities as cited above by the Parties herein, an examination of the available statutory provisions and surrounding caselaw on the amendment of an employer’s name is required. Section 39 of the Organisation of Working Time Act 1997 applies to the statutes tabulated therein which notably include the statutes subject to these complaints. In relation to a situation whereby a decision has issued misstating the name of an employer, Section 39(2) provides: “A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.” Section 39(3) further provides: “The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.”This is a useful mechanism for amending the employer’s name in a decision, commonly used when an issue arises at appeal or enforcement stage. Whilst a rehearing is not required, it cannot be used where it would result in a person who was not given the opportunity to be heard in the proceedings becoming bound by the decision. Other statutes make provision for the correction of mistakes of an administrative or clerical nature in a decision by notice in writing to the parties concerned e.g. Section 41(16) of the Workplace Relations Act 2015 and Section 88 of the Employment Equality Acts 1988-2015.

In relation to misstatement of an employer’s name when an applicable complaint still at hearing stage, Section 39(4) of the same Act provides: “If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and- (a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and (b) the said misstatement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired: Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.” Essentially this provides for the granting of leave to a party to pursue the correct employer in respect of complaints under the statutes tabulated therein without restarting the statutory clock in circumstances where an employer has been not had the opportunity to be heard owing to (1) misstatement of its name or details and (2) inadvertence, unless to do so would result in an injustice being done to that party. The High Court Judgement in Capital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725 at Paragraph 24 provides a useful analysis of the mechanics of Section 39 of the Organisation of Working Time Act 1997. In that case, no issue had been taken with the correct legal title of the employer until enforcement stage when the named respondent instituted Judicial Review proceedings asserting that it had been incorrectly named.

In relation to Section 39(4), Mr Justice Barratt stated: “S.39(4) deals with a situation, irrelevant to the within proceedings, whereby the name of a party was inadvertently misstated and, as a consequence, the party that ought to have been pursued was not heard. The within application does not concern a situation in which a party that ought to have been pursued was not given an opportunity to be heard. It concerns a situation in which a party that ought to have been pursued was fully aware of the proceedings, acknowledged and accepted that it was the party concerned, and so the Rights Commissioner found on 2nd August, 2012 was given an opportunity to be heard.” He also distinguished Sandy Lane Hotel Limited -v- Times Newspaper Limited (2011) 3 IR 334 (referred to in Travelodge Management Limited -v- Sylwia Wach EDA 1511 as relied upon by the Respondent). In particular, he noted that the complainant in that case was “…a so-called “ordinary” person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of “blue chip” legal and tax advice…” Given the conflicting authorities in relation to the amendment of employer’s names, this Judgement represents the current position. Therefore, and regardless of the precise wording of the employer’s name on the complaint form, once an Adjudication Officer is satisfied that the correct employer has been pursued and has been given an opportunity to be heard, then there can be no question as to jurisdiction.

This begs the next question as to how, in practical terms, can an Adjudication Officer be satisfied that the correct employer has been pursued and been given an opportunity to be heard. It is clear from a review of the caselaw that each case will turn on its own particular facts, and hence a careful examination of all of the surrounding circumstances including paper trail will be required. In this respect, acknowledgement by or on behalf of an employer by way of correspondence with the WRC and appearance by representatives and/or witnesses on behalf of the employer that ought to be heard at the hearing may well be determinative of the issue. In this respect, I made a number of observations in relation to the instant case. Firstly, although the registered addresses for ‘A Film Production Company’ and ‘X Productions DAC’ were different, the address provided on the complaint form was the current registered address for ‘X Productions DAC’. Secondly, by letter dated 18th October 2016, the WRC copied the complaint form listing the aforesaid complaints and dispute, along with a form (to be completed within 21 days, ticking the appropriate box to indicate whether there was consent to an investigation by an Adjudication Officer of the WRC into the dispute under Section 13 of the Industrial Relations Act 1969) to ‘A Film Production Company’ at the address provided. This is a standard form furnished to employers in relation to all disputes given that any party has the right to object to the WRC hearing same pursuant to Section 36(1) of the Industrial Relations Act 1990. The completed form was recorded as being received by the WRC on 25th October 2016. It was dated 21st October 2016 with ‘X Productions DAC’ and its registered address inserted in handwriting into the relevant spaces. The box corresponding with “I do not object to an investigation of the above dispute by an Adjudicator” was ticked. It was accepted that this form had been returned to the WRC on the Respondent’s behalf although it appears this was not communicated to its Representative who I have no doubt was acting in good faith. It is further noted that the issue as to the correct naming of the Respondent was first raised at the hearing of 24th November 2017, over a year after the referral of these matters. Thirdly, a Director of ‘X Productions DAC’ and other connected staff attended at the hearings and produced documentation relating to the Complainant’s employment including a draft contract, payslips & P45.

Having considered all of the surrounding circumstances, I am fully satisfied that the Complainant’s employer was fully on notice of these complaints and dispute and was afforded every opportunity to be heard. Having expressly acknowledged that ‘X Productions DAC’ was the Complainant’s employer for the purposes of these complaints/dispute, it cannot now be allowed to disavow same. To borrow Mr Justice Henchy’s words in Corrigan -v- The Irish Land Commission (1977) IR 317, a party “…cannot blow hot and cold; he cannot approbate and then reprobate; he cannot have it both ways.” I am also guided by the observations of Mr Justice Walsh of the Supreme Court in Halal Meatpackers (Ballyhaunis) -v- EAT 1990 ILRM 293 (as endorsed by the EAT in Rahman -v- Munster Joinery UD2377/2011) to the effect that the EAT (now replaced by the WRC) was intended to be informal in nature and to relieve parties of the undue formality and technicalities associated with Courts. The complaint form is not a statutory form and inthis Adjudication Officer’s experience, errors in the precise legal naming of the employer are commonplace and in most instances the correct employer is in attendance and consenting to an amendment. I am also cognisant that the Complainant was disadvantaged by the fact that she was never furnished with a contract of employment containing the Respondent’s legal name and nor did her payslips disclose same. Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins cited above. For the aforesaid reasons, I also consider the misstatement of the Respondent’s name to be no more than a clerical or administrative error and this objection to be no more than a technical objection. It follows that there is no requirement to invoke Section 39(4) of the Organisation of Working Time Act 1997, requiring the grant of leave to institute these complaints against the correct employer. As a decision has not yet issued, Section 39(2) of the Act does not apply either. Therefore and as with any amendment to the parties’ details of such a nature, the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title. However, as an extra precaution, I offered the Respondent’s Representative (who readily acknowledged that he had instructions to represent ‘X Productions DAC’ which was still operational for litigation purposes) an adjournment to ensure that all its relevant witnesses could be present and any working time records to meet these complaints could be submitted. This was declined in circumstances where it was conceded that no other witnesses or documentary evidence could further the defence herein.

Dispute under Section 13 of the Industrial Relations Act 1969 – Unfair Dismissal with less than 12 months’ service - CA-00007583-005

Summary of Complainant’s Case:

The Complainant gave evidence supported with contemporaneous diary entries outlining the history of her employment with the Respondent. She confirmed that she has a Journalism Degree with two years’ experience in the film industry. She stated that she had been approached by a representative from the Respondent for the purposes of working as a Trainee Assistant Director for a film production which was scheduled from 20th September until 25th November 2016. It is not disputed that the film in question benefited from public funding by way of grants and tax relief with Regulation 7 of S.I. 4/2015 providing that it is a qualifying condition for authorisation of same under Section 481(2)(b) of the Taxes Consolidation Act 1997 that: “the Minister is satisfied that the film will either or both- (i) act as an effective stimulus to film making in the state through, among other things, the provision of quality employment and training opportunities,…” The legislation also requires the production to take on a minimum number of trainees. The role was referred to as ‘base bunny’ (a derogatory term according to the Complainant’s Representative) and required her to be at the base to coordinate the transport, actors, extras, etc. and essentially ensure that everybody was where they should be when required. She met the representative on 14th September 2016, and attended for an interview with her prospective Line Manager, Ms A, on 17th September 2016 where the duties and functions of the role were outlined to her. She advised Ms A that this would be the biggest production she had worked on to date. In response, Ms A assured her that she would be more than capable and anything she was unfamiliar with could be picked up on the job. Later that afternoon she was contacted by the Production Manager and offered the role. The Complainant understood that she was being hired on a specified purpose contract for the duration of the production and would be offered full training and support. In the absence of a contract indicating otherwise, her expectation was that her employment was guaranteed for the full period of production. She confirmed that she had never received the draft written contract containing a six-week probation period or allowing for termination on one week’s notice as produced by the Respondent. She put her plans to move to the UK for other work on hold in order to take up this role. She was verbally advised that her hours of work were to service 11 shooting hours per day over a five-day week, with a requirement to work additional hours depending upon the production needs.

The Complainant commenced work with the Respondent on 20th September 2016. She was not provided with any induction training. She completed a period of pre-production work without any issues being raised in respect of her work. She became aware that her Line Manager, Ms A was very stressed at the time and there were a few communication errors with the transport team but nothing out of the ordinary for such a large production. On 30th September 2016, filming started on location and Ms A was still very stressed and making mistakes. No issues were raised with the Complainant’s performance but from 5th October 2016, Ms A stopped relaying information required for the conduct of her role. As a consequence, she was unable to relay information required by the rest of the crew which made her look incompetent. By now, Ms A was exclusively communicating with another trainee. She was cold and dismissive towards the Complainant who felt ‘iced’ out of her role. The Complainant also began to feel quite anxious and upset and raised this as an issue with the representative who had contacted her about the role and tried to get direction from him. He agreed that Ms A appeared to be phasing her out but could not offer an explanation. Later on the evening of 5th October 2016, the Complainant received a phone call from Ms A enquiring if she had finished a task before leaving. She confirmed that she had finished the task and decided to tackle the issue of withholding work directly with Ms A who responded that everything was fine. However, at the start of work the following day, Ms A confronted the Complainant stating that she was sorry but she would have to dismiss her from the set. She used words to the effect that the Complainant was not to blame for her own inexperience. It was her (Ms A’s) fault as she needed more support and someone with more experience. She said that a woman with whom she had worked previously was coming over from the UK to take over the Complainant’s role. Ms A further advised her that she could work out rest of the week with the Extras Coordinator and she was told to leave with him immediately and go to the film studios. Later that day, the Complainant received a phone call from the Production Manager to ensure that there were no bad feelings and he said he hoped to work with her again in the future. During this conversation, he made reference to the ‘dynamic’ but would not elaborate further. He also indicated that Ms A had wanted someone else for the role and that is why she was being let go. A letter dated 6th October 2016 was delivered to the Complainant from the Production Manager, entitled ‘Termination of Engagement’ stating: “In accordance with the terms and conditions of your engagement by X Productions DAC (‘Company’), as Base Trainee in connection with the production of the feature film…, this letter serves as written notice of the termination of your engagement effective, Thursday 13th October 2016.” Requests for her starter form were ignored. After her dismissal, she relocated to London and immediately sought further employment, commencing work on a television production there in January 2017.

On behalf of the Complainant, it was submitted that she had been dismissed by the Respondent without the most basic of procedures in breach of the fundamental principles of natural justice and contrary to S.I. No. 146 of 2000. She had been dismissed for no good reason other than that stated by her Line Manager, being that she favoured another Assistant Director. She was not provided with any training in accordance with the legislative requirements or given any indication that her performance was under review or unsatisfactory. Therefore, there were no substantial grounds justifying the termination of her employment. Furthermore, the Complainant’s Line Manager had taken it upon herself to conduct the whole dismissal process in a summary fashion without any intervention from management. Reliance was placed upon a number of Labour Court Recommendations granting awards of compensation in similar circumstances, namely, Embankment Plastics Limited -v- A Worker LCR21066, Herbert Park Hotel Limited -v- A Worker LCR18331 & Viking Direct (Ireland) Limited -v- A Worker LCR17042. As a consequence, the Complainant was left in a very difficult position financially with no means to return to the UK having forgone other work. The Complainant sought an award of compensation in relation to her dismissal.

Summary of Respondent’s Case:

In its written submission, the Respondent indicated that it did not intend to engage with this “trade dispute” under the Industrial Relations Act 1969, given that the Complainant was no longer in its employment. However, at the time of writing, the Respondent’s Representative appeared to be unaware of the existence of the form submitted to the WRC in the name of ‘X Productions Limited’, ticking the box corresponding with “I do not object to an investigation of the above dispute by an Adjudicator”. When provided with a copy of same, it was accepted that the form had been submitted on behalf of the Respondent. No evidence was proffered to rebut that of the Complainant or provide an explanation for the alleged manner in which her employment had been terminated.

Findings and Conclusions:

As per the Labour Court’s position as confirmed in Bord Gais Eireann -v- A Worker AD1377, the Adjudicating Officer’s role in the context of dealing with a dispute relating to disciplinary action is confined to considering the reasonableness of procedures utilised in the particular circumstances, as opposed to adopting the role of the employer and making findings of fact in relation to the matters alleged. In this respect, I am guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) as relied upon by the Complainant, which requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises/organisations) must comply with the general principles of natural justice and fair procedures. Notwithstanding that the employment relationship has terminated, there are numerous examples of the WRC and Labour Court seeing fit to recommend awards of compensation in respect of unfair dismissals with less than 12 months’ service including those during the probation period where there has been a breach of fair procedures as cited above. I am also cognisant of the additional statutory obligations imposed upon the Respondent by virtue of the fact that the film in question benefitted from public funding.

In the instant dispute, I found the Complainant to be an impressive witness and her account of the circumstances giving rise to her summary dismissal to be wholly credible. Furthermore, the Respondent has not proffered any evidence in rebuttal of same. On the balance of probabilities, I am therefore satisfied that there has been a complete absence of fair procedures in accordance with the general principles of natural justice and as required byS.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures). Specifically, the Complainant was never furnished with a contract complying with the Protection of (Fixed-Term Work) Act 2003 (covering specified purpose contracts) including any probationary policy, or disciplinary procedures as required by the Code. If there had been shortcomings in her ability to undertake the role, then as a minimum, she should have been informed of same and provided with the necessary training and supports required to undertake the role to Ms A’s satisfaction. If this was not possible within the short timeframe of the film production, a reasonable employer would have found her another role. Furthermore, the Complainant was not given any notice of the impending dismissal, and was not afforded the opportunity to be represented or heard in relation to same. Unfortunately, there remains a common misconception that fair procedures are not required when employees have less than twelve months’ service and they can simply be dismissed without notice. I am further satisfied that based upon the representations made to the Complainant that she had an expectation of employment for the full term of the film production which was scheduled for a further six weeks.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute. Based upon the aforesaid reasoning, I recommend that within 42 days hereof, the Respondent makes a once-off ex gratia payment of €3,250 (equivalent to approximate net loss suffered) to the Complainant in compensation for the manner in which she was dismissed from her role as Trainee Assistant Director with the Respondent.

Complaint under Section 3 of the Terms of Employment (Information) Act 1994 –      No Written Statement containing Particulars of Employment - CA-00007583-002

Summary of Complainant’s Case:

The Complainant gave evidence confirming that although she had signed a starter form as furnished in the course of these proceedings, she had never received a statement in writing containing the particulars of her employment or contract that would suffice, notwithstanding two requests for same. She further confirmed that she was unaware of the existence of an unsigned draft contract also produced on behalf of the Respondent in the course of these proceedings (notably dated 16th October 2016 after the termination of her employment). On the Complainant’s behalf, it was submitted that as the duration of her contract was for more than 1 month as required by Section 2 of the Terms of Employment (Information) Act 1994, she was entitled to a statement in writing containing the particulars of her employment within 2 months of commencing employment under Section 3 of the Act. Although her employment had ended before the requisite 2-month period, it was pointed out that the obligation to provide this statement in writing extended beyond the period of her employment having regard to Section 3(2) of the Act. The Complainant sought an award of compensation in respect of this breach of the Act.

Summary of Respondent’s Case:

The Respondent did not proffer any evidence contesting the Complainant’s position that she had never received a statement in writing containing the particulars of her employment or had never received the unsigned draft contract produced during these proceedings. Although it was initially contended that the Complainant was not employed for the requisite 2-month period and consequently no breach of the Act had occurred, it was later accepted that the statutory obligation to provide a statement extended beyond the period of her employment having regard to Section 3(2) of the Act. However, the Respondent’s Representative further submitted that in relation to determining the level of compensation, the Respondent could not be penalised for any detriment to the Complainant arising within the 2-month period as a consequence of the absence of a statement in writing.

Findings and Conclusions:

For the purposes of determining this complaint, it is necessary to consider the evidence adduced in light of the relevant statutory provisions. Relevant to this complaint, Section 2 of the Terms of Employment (Information) Act 1994 provides that periods of employment of less than 1-month duration or 8 hours per week are excluded from protection under the Act. Section 3 provides: “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars (listed thereunder) of the terms of the employee’s employment...” Section 3(2) further provides: “A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.” The Complainant’s contention that she never received a statement in writing of the terms of her employment or a contract of employment which would suffice was not refuted on behalf of the Respondent. As set out aforesaid, I am satisfied firstly that the Complainant’s contract was intended to last for the duration of the production of the film which was in excess of 1 month and therefore meets that requirement under Section 2 of the Terms of Employment (Information) Act 1994. Secondly, and having regard to Section 3(2) of the Act, I find that she was still entitled to a written statement after the termination of her employment once the 2-month period for providing same had expired. I am therefore satisfied that the Respondent acted in contravention of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide the Complainant with a statement in writing containing the particulars of her employment or contract that sufficed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6. Based upon the aforesaid, I am satisfied that this complaint is well founded. As specified by Schedule 6, once a complaint has been declared well-founded under Section 7(2)(a), Section 7(2)(b) and (c) provides for the giving of directions regarding the particulars to be contained in a written statement, and Section 7(2)(d) provides for an award in respect of a contravention of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under Section 17 of the Unfair Dismissals Act 1977.” An anomaly has arisen in the instant case where the detriment experienced arose before the expiry of the 2-month period within which the Respondent was required to provide the Complainant with a statement in writing containing the particulars of employment. Although I am of the view that she was prejudiced by the absence of a contract when she was summarily dismissed some two weeks into her employment, I accept that the Respondent cannot be penalised for a determinant arising within the first 2 months of employment at a time when it was not technically in breach of the Act. Having regard to all of the circumstances, I deem it just and equitable to direct the Respondent to pay the Complainant compensation in the sum of €700, equivalent to one week’s remuneration.

Complaint under Section 15 of the Organisation of Working Time Act 1997 - Excessive Weekly Working Hours - CA-00007583-003

Summary of Complainant’s Case:

The Complainant gave evidence confirming that although the hours varied, she was required to work 11-12 hours per day averaging 60 plus hours per week for the duration of her employment with the Respondent as noted in her diary. She had not received a contract outlining same or grievance procedures. It was submitted that this was in excess of the permitted 48 weekly hours under Section 15 of the Organisation of Working Time Act 1997. It was further submitted that as the Complainant’s contract of employment was not due to exceed the 4-month period used for the purposes of averaging under Section 15, the relevant reference period should be weekly. Reliance was also placed upon Section 25(1) of the Organisation of Working Time Act 1997 which requires employers to retain records showing compliance with the Act and where same are not retained, Section 25(4) essentially provides that the onus of proving compliance rests with the Respondent. The Complainant sought an award of monetary compensation in respect of this alleged breach in accordance with the Von Colson principles, being that sanctions for breach of EC rights must be “effective, proportionate and dissuasive”. The Respondent’s Representative questioned the Complainant as to whether she had ever raised an issue about the length of working hours, in respect of which she replied that she had not, but it was an issue that was openly spoken about.

Summary of Respondent’s Case:

In written submissions, it was contended on behalf of the Respondent that it was entitled to rely upon the 4-month reference period provided by Section 15(1) of the Organisation of Working Time Act 1997 to average the Complainant’s weekly working hours and given the duration of employment, no claim arose. At the hearing, the Production Manager confirmed that the working day on the production was an 11-hour day including an hour for lunch or a 10-hour continuous day (as reflected in the draft contract). Although it was the usual practice to retain working time records for film productions, none could be located for the purposes of rebutting this complaint.

Findings and Conclusions:

For the purposes of determining this complaint, it is necessary to consider the evidence adduced in light of the relevant statutory provisions. In relation to weekly working hours, Section 15(1) of the Organisation of Working Time Act 1997 provides as follows: “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.” (Remainder not applicable to the instant case.)

It is necessary to firstly deal with the Respondent’s contention that it is entitled to rely upon the 4-month averaging reference period provided for by Section 15(1) of the Act for the purposes of calculating the Complainant’s weekly working hours. Giving the wording of this Section and specifically the words, “that does not exceed— (a) 4 months…” their ordinary literal meaning, it is clear that reference periods of less than 4 months are envisaged by the legislation with 4 months being the maximum averaging period (unless the conditions for a 6-month reference period or other exemption under Section 15(4) are met - not applicable in the instant case). This interpretation is also in keeping with the wording of Article 6 of the underlying Directives on Working Time and objective of preventing excessive working hours for health and safety reasons. I note that the Respondent did not have any arrangements in place to ensure compliance with Section 15 of the Act over any particular reference period and the draft contract provided appears to impose an onus on the employee to ensure compliance.

Turning to the substantive complaint that the Complainant worked in excess of 60 hours per week, Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides: “Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before (an Adjudication Officer) or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.” The Labour Court has set-out a well-established test for interpreting the applicable burden/onus of proof under Section 25(4) of the Act in relation to complaints brought under the Act in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 (which related to a breach of Section 11 - daily rest periods) as follows: “(1) The effect of S.25(4) of the Acts is to shift the burden of proof to the respondent in cases where records in the statutory form were not maintained. (2) The evidential burden on a claimant requires the claimant to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provision of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint. (3) That when the claimant has met his or her evidential burden, the respondent is required to put the records required by S.25(1) of the Act to demonstrate compliance with the relevant provision. Where such records are produced, the claimant bears the evidential and legal burden of proving that his or rights under the Acts were contravened in the manner alleged. (4) That where forms in the prescribed form as required by S.25(1) of the Act are not produced by the respondent and the claimant has satisfied the evidential burden, the respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge this burden, the claimant will succeed in their complaint/s under the Act.” Applying the aforesaid test to the instant facts and in the absence of any contrary evidence, I find that the Complainant has adduced cogent evidence of working excessive weekly working hours for the duration of her employment. Regardless of whether the reference period is weekly or the duration of her employment, the hours worked were still in excess of 48 hours per week. I am satisfied that this is sufficient to overcome the first low hurdle of providing evidence with sufficient particularity to support a stateable case of non-compliance with Section 15 of the Act. In the absence of any records confirming compliance with the Act and as the Complainant has made out a stateable case, the Respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that it was not contravened in the manner alleged. In the absence of any rebutting evidence on its behalf, I am satisfied on the balance of probabilities that Section 15 of the Act has been contravened as alleged.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6. Based upon the aforesaid, I am satisfied that this complaint is well founded. Once a complaint under the Organisation of Working Time Act 1997 has been declared well-founded, Section 27(3) provides that an Adjudication Officer may: “(b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” Having regard to all of the circumstances and bearing in mind the relatively short period of contravention, I deem it just and equitable to direct the Respondent to pay the Complainant compensation in the sum of €700, equivalent to one week’s remuneration.

Complaint under Section 12 of the Organisation of Working Time Act 1997 - Non-provision of Statutory Breaks - CA-00007583-004

Summary of Complainant’s Case:

The Complainant gave evidence confirming that she did not receive her statutory breaks for the duration of her employment with the Respondent, contrary to Section 12 of the Organisation of Working Time Act 1997. She had not received a contract or written statement outlining same. Although she could take comfort breaks, she said that she never received her statutory 15-minute break after 4.5 hours or 30-minute break after 6 hours. She was required to be at the Respondent’s disposal at all times, and had to wait until all of the other crew had eaten before being allowed to “grab something from the food bus and eat on the go”. Reliance was also placed upon Section 25(1) of the Act which requires employers to retain records showing compliance with the Act and where same are not retained, Section 25(4) provides that the onus of proving compliance rests with the Respondent. The Complainant sought an award of monetary compensation in respect of this alleged breach of the Act in accordance with the Von Colson principles outlined above. The Respondent’s Representative questioned the Complainant as to whether she had ever raised an issue about breaks with her Line Manager, Ms A. She said that as her Line Manager was not communicating, she could not raise this with her and as Ms A had to approve cover she would have been aware of it in any event. When asked why she could not take breaks during natural pauses in filming, the Complainant said that she still had to be on hand to attend to the cast during these periods.

Summary of Respondent’s Case:

The Production Manager confirmed that as per draft contract with similar posted out to the other employees, the working day on the film production was an 11-hour day plus one hour for lunch or a 10-hour continuous day. Traditionally, there would be natural breaks in filming when breaks could be taken although this varied. He contended that S. I. 21/1998 - Organisation of Working Time (General Exemption) Regulations 1998 applied and in particular, 3(b)(iii) of the Schedule, it being an activity involving “production in the press, radio, television, cinematographic, postal or telecommunications industries”. There would normally be time sheets available for employees to complete if they worked beyond their contractual hours or had untaken breaks. Whilst he contended that such time-sheets had been available in relation to this production, they could not be located.

Findings and Conclusions:

For the purposes of determining this complaint, it is necessary to consider the evidence adduced in light of the relevant statutory provisions. In relation to statutory breaks, Section 12 of the Organisation of Working Time Act 1997 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 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).” S.I. 21/1998 - Organisation of Working Time (General Exemption) Regulations 1998 provides for exemptions from the Act in relation to specified industries and/or activities but Article 4 still requires an employer to ensure that equivalent compensatory breaks are taken (as per underlying Code of Practice).

As already stated, Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides: “Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before (an Adjudication Officer) or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.” 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 compliance with the Organisation of Working Time Act 1997. The Labour Court has set-out a well-established test for interpreting the applicable burden/onus of proof under Section 25(4) of the Act in relation to complaints brought under the Act in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as set out above. In relation to the provision of rest periods, the following obiter dictum was added: “That the State would be in default of its obligations under the Directive if the Organisation of Working Time Act was interpreted in the manner contended for by respondent, i.e. that it is for the employee to ensure that the obligation regarding breaks and break periods are observed.” Applying the aforesaid test to the instant facts, I find that the Complainant has adduced cogent evidence of non-compliance with her statutory entitlement to breaks sufficient to overcome the first low hurdle of providing evidence with sufficient particularity to support a stateable case of non-compliance with Section 12 of the Act and/or S.I. 21/1998 - Organisation of Working Time (General Exemption) Regulations 1998. In particular, I am satisfied that the production of the film in question was conducted in such a manner that its smooth operation depended upon the Complainant taking breaks only when possible and she did not have any autonomy in this respect. Whilst fully appreciating the pressures imposed upon film producers who are subject to time pressures and budgetary constraints, it is still incumbent upon management to have a system in place to ensure compliance with statutory obligations. Assuming that the General Exemption Regulations 1998 applied, it is not sufficient to expect the Complainant to take her breaks during natural pauses in filming without having a system in place to ensure that she could take compensatory breaks. In the absence of any records confirming compliance with the Act and as the Complainant has made out stateable case, the Respondent carries the legal burden of proving on credible evidence and on the balance of probabilities that it was not contravened in the manner alleged. In circumstances where the Respondent has not challenged the alleged breaches or proffered any rebutting evidence, I am satisfied on the balance of probabilities that the Act has been contravened.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6. As set out aforesaid, I am satisfied that this complaint is well founded. Once a complaint under the Organisation of Working Time Act 1997 has been declared well-founded, Section 27(3) provides that an Adjudication Officer may: “(b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” In all of the circumstances and given the short contravention period, I deem it just and equitable to direct the Respondent to pay the Complainant compensation in the sum of €350.

Overall Award:

For the avoidance of doubt, it is recommended that the Respondent makes a once-off ex gratia payment to the Complainant of €3,250 in relation to her dispute under Section 13 of the Industrial Relations Act 1969 within 42 days hereof. The Respondent is further directed to pay her a total €1,750 in compensation, comprising of €700 in respect of her complaint under the Terms of Employment (Information) Act 1994 and €1050 in respect of her complaints under the Organisation of Working Time Act 1997. Therefore, the overall total award is €5,000.

Dated:   20/08/18

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Correct Respondent - Section 13 of the Industrial Relations Act 1969 - Section 3 of the Terms of Employment (Information) Act 1994 - Sections 12, 15, 25 & 39 of the Organisation of Working Time Act 1997