ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011579

Parties:

Complaints:

Date of Adjudication Hearing: 29/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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 Complainant was employed from 16th June 2013 until the employment terminated on 22nd July 2017. He was employed as a chef, was paid 13.79 an hour and he worked varied hours. He was provided with a written statement of his Terms and Conditions of Employment. The Complainant referred complaints to the Workplace Relations Commission on 31st October 2017 under the National Minimum Wage Act – the Unfair Dismissals Act – the Minimum Notice and Terms of Employment Act and the Organisation of Working Time Act.

The Complaint under the Unfair Dismissals Act, 1977 – 2015 was withdrawn at the Hearing by the Complainant.

SUMMARY OF COMPLAINANT’S POSITION.

CA-00015463-005 – Unfair Dismissal’s Act, 1977 – 2015.

This complaint was withdrawn by the Complainant at the Hearing.

CA-00015463-004 – Minimum Notice and Terms of Employment Act, 1973.

As the complaint under the Unfair Dismissals Act was withdrawn at the Hearing this complaint is also withdrawn.

CA-00015463-006 – National Minimum Wage Act, 2000.

The Complainant stated that his Solicitor wrote to the Respondent on 17th August 2017 and again on 21st August 2017 requesting a statement as provided for under Section 23 of the Act. There was no response. The Complainant stated that he worked between 56-60 hours a week and was therefore paid less that the National Minimum Wage.

CA-00015463—001 and 002 - 003-Organisation of Working Time Act, 1977

Section 15 Maximum Working Hours. The Complainant asserted that despite the rosters that may exist they do not represent the actual hours worked by the Complainant. He was required to attend work 30 minutes prior to his shift and he was required to work up to 40 minutes after his shift ended. He further stated that even though he signed the roster he stated he did so under duress at the end of the week otherwise he stated he would not be paid. The Complainant also stated that his first language is not English and he did not have the wherewithal or capacity to query anything in relation to his hours and was totally ignorant of his entitlements under the law until he contacted his Solicitor.

Section 12. The Complainant asserted that he did not receive rest breaks and he asserted that the Respondent’s records will show that for example on 16th April the rostered hours for the Complainant are 12.30pm to 11pm and he received his break from 9.30 to 10pm. Likewise on 19th April he was rostered from 2pm until 10pm but did not receive his rest break until 9.30pm. This is clearly in breach of the Act.

Section 14. The Complainant did not receive a premium for working on a Sunday as required by law. He stated he worked every Sunday from 12pm until 11pm and he worked 3pm until 10.45 over 5 days and he had Monday off.

SUMMARY OF RESPONDENT’S POSITION.

Organisation of Working Time Act 1997-2015

Section 15. The Respondent stated the Company operating hours are 3pm – 11 pm. All employees are off the Premises by 11.15pm. The Complainant had his own key which he would have used to access his employment. Employees are not required to attend work before 3pm but are expected to be ready in their uniform by 3pm. All rosters are issued to each employee in advance and are also up on the noticeboard for employees to check.

The Complainant’s signed Contract of Employment provides that he is paid a salary of £575.00 per 43.5 hour working week. This was increased to £600.00 during 2016. His Contract of Employment provides that the Company has taken account of Sunday working within the basic rate of pay which includes additional benefit for same. The Respondent stated that the Complainant relied on public transport to get home and they stated that the last bus was at 11.05pm. The Manager locks up each night and does so by 11.15 pm and there are no staff permitted on site.

Section 12. The Respondent stated that breaks are unpaid. The Restaurant opens to the Public from 4pm to 11pm Monday to Saturday and from 1pm to 11pm on a Sunday. All the employees are entitled to eat their meal on the Premises between 4pm and 5pm and one dish is cooked for all employees each day. All employees are required to eat their meal in one of the two designated areas as to eat while working is prohibited under the regulations of the Food Safety Authority. Employees are not allowed to take breaks between 6pm and 9pm.

Section 14. The Respondent stated that all employees are required to work on Sundays bar a named Employee who cannot for family reasons. The Complainant is paid a basic salary of 600.00 euro per week which according to his contract of employment does provide for working on a Sunday.

I requested the Respondent to forward me unredacted rosters post the Hearing and this was received by the Adjudication Officer on 8th May 2018.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, written and oral submissions from both Parties and questioning by the Adjudication Officer of both Parties at the Hearing I find as follows

CA-00015463-005 Unfair Dismissals Act, 1977 – 2015

This complaint was withdrawn at the Hearing and the withdrawal letter was forwarded to the Administration Unit.

CA-00015463-004 – Minimum Notice and Terms of Employment Act, 1973.

As the complaint under the Unfair Dismissals Act, 1977 – 2015 was withdrawn by the Complainant I do not have jurisdiction to deal with this complaint.

CA-00015463-002 – Organisation of Working Time Act, 1977 – 2015.

Section 15 of the Act provides as follows – (1) An employer must 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…that does not exceed – 4 months. The Respondent provided rosters to the Hearing and they also forwarded the rosters unredacted to cover this four-month period i.e. from 23rd March 2017 to 22nd July 2017 when the employment terminated. This shows the Complainant worked on average of 42.9 hours a week in the 4-month reference period. I note the Complainant states these rosters are not correct but I also note that the Complainant signed each of the weekly rosters and he was paid accordingly.

Section 12 –Organisation of Working Time Act, 1997-2015.

Section 12 of the Act provides 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). Subsection (4) provides as follows – A break to an employee at the end of the working day shall not be regarded as satisfying the requirement in subsection (1) or (2). I have examined in detail the records provided by the Respondent at and post the Hearing.

Both Parties confirmed at the Hearing that the Complainant was provided with a meal each day he worked at either of two designated areas between 4pm and 5 pm each day. Both Parties also confirmed that the Complainant commenced work on his rostered shift at 3pm each day. Therefore, the Complainant was afforded a break of at least 15 minutes each day as specified at Section12(1) of the Act. The issue now arises was the Complainant provided with a 30 minutes rest break, that may include the first 15-minute break as provided for at subsection (1) of the Act. The evidence was that on the majority of days worked the Complainant did receive a 30-minute break but the breaks are recorded as being taken from 9.30pm to 10pm in the majority of days which is a breach of Section 12(2) of the Act. This relates to the working days Monday to Saturday when his shift commenced at 3pm.

The Complainant worked Sundays and both Parties confirmed that he worked from 3pm to 11pm. Again, both parties confirmed that the Complainant did receive a meal each Sunday between 4pm and 5pm. I have looked at the records of breaks and these show that the Complainant received a break from 5pm to 5.30pm and a second break from 9pm to 9.15pm. I find there has been no breach of the Act in relation to breaks on a Sunday.

Section 14 – OWTA 1977 – 2015.

This section of the Act provides as follows – (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely……”. The Complainant was provided with a written Contract of Employment and this provides at Section 6 in relation to Sunday Premium as follows – “Please note that the Company has taken account of Sunday working within the basis rate of pay which includes additional benefit for same”. Both Parties confirmed at the Hearing that the Complainant is paid €13.79 an hour for all hours worked regardless whether it is a Saturday or Sunday. In Viking Ltd v Valent DWT 89/2014 the Labour Court has held that it could only be satisfied that an employee had obtained his or her entitlements under this section “where the element of compensation for the obligation to work on Sunday is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion”. I find that although the Contract of Employment does refer to the Sunday Premium being incorporated in the basic rate of pay it is not clear what element of basis pay compensates the Complainant in relation to this Section. I find that the Respondent has breached Section 14 of the Act on 14 different Sundays in the reference period covered by this complaint i.e. from 1st April 2017 to 22nd July 2017.

CA-00015463-006 – National Minimum Wage Act, 2000.

Section 23(1) of the Act provides that “an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period….falling within the 12 month period immediately preceding the request”. The Complainant stated that his Solicitor had served a Section 23 notice on the Respondent on 17th and 21st August 2017 but there was no response. The Respondent in their evidence stated the Complainant was paid €13.79 an hour well in excess of the then National Minimum Wage. The Complainant argued that he worked in excess of 56 hours a week and that therefore he was not paid the National Minimum Wage.

I have found on the basis of the rostered hours signed each week by the Complainant that he worked on average 42.9 hours per week. I therefore find the Complainant was paid in excess of the National Minimum Wage.

DECISION:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Ca-00015463-001 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded. The Respondent did not breach Section 15 of this Act.

CA-00015463-002 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of £1000.00 for breach of Section 12 of the Act. This to be paid to the Complainant within 42 days of the date of this Decision.

CA-00015463 – 003 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision.

CA-00015463-004 – The Complaint under the Unfair Dismissals Act, 1977 – 2015 was withdrawn at the Hearing. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded.

CA-00015463-005 – This complaint was withdrawn at the Hearing.

CA-00015463-006 – On the basis of the evidence and my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded.

Dated:   29th August 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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