ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015845

Parties:

	Complainant	Respondent
Anonymised Parties	A Deli Assistant	A Convenience Store

Representatives

Adrian Twomey Jacob and Twomey Solicitors

Brendan Curran O'Doherty Warren & Associates

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00020510-002	12/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00020510-003	12/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00020510-004	12/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00020510-005	12/07/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00020510-006	12/07/2018

Date of Adjudication Hearing: 26/10/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of written or other evidence lawfully tendered during the hearing.

The within Complaint Form dated the 12th of July 2018 include five complaints

In particular, the Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. Pursuant to Section 6 of the said 1991 Act, in circumstances where the complaint is deemed to be well founded, compensation in the amount so specified may be awarded. The Claim is within time.

In particular, a contravention of Section 12 of the Organisation of Working Time Act of 1997 has been alleged. In the event that I deem this complaint to be well founded I can require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances. The claim is within time.

The Complainant herein has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant.

Finally, the Complainant has made two complaints under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee herein employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).

Background:

The Complainant commenced her employment with the Respondent in and around July of 2017. The Respondent ran a Service Station with attached convenience store. The Complainant was engaged to run the hot and cold deli counter therein. The Complainant’s employment terminated unexpectedly and in the aftermath of that termination the Complainant made a number of complaints including one under the Organisation of Working Time Act 1997:

Rests and intervals at work.

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).

Summary of Complainant’s Case:

The Complainant was represented and provided me with relevant documentation. The Complainant gave evidence on her own behalf. The Complainant was engaged to work she said up to 40 hours a week though she says very often she worked up to 45 hours per week. During her employment the Complainant worked alongside several other employees but it is clear that in the main she worked on her own.

Summary of Respondent’s Case:

The Respondent was represented and provided me with a book of relevant documents. The Respondent gave a history that the deli area was a loss-making venture and was eventually shut down. The Respondent accepted a number of the Complaints – Notice and there being no Contract of Employment.

Findings and Conclusions:

The Respondent gave evidence that part of the franchise arrangement he entered into when opening up this service station was the provision of a hot and cold deli counter which was also to include seating area. The Respondent gave evidence that this was a loss-making venture right from the very start.

The Respondent’s accountant DJ gave evidence regarding the finances. In particular, his analysis of the till receipts from June 2017 to February 2018 showed a turnover of €16,300 inclusive of Vat and that this was simply too low to be a viable enterprise and that this was the advice he felt compelled to give his client.

The Complainant was engaged in July of 2017 and worked exclusively in the deli counter side of the operation. The hours were a basic 9 to 5 day though over time this started earlier and finished earlier in line with footfall. It appears customers tended to dwindle by mid-afternoon.

It is accepted that the Complainant never received a Contract of Employment and the Respondent Manager/witness accepted that this was an oversight on his part.

The Complainant gave further evidence that she was not afforded breaks as is a requirement and obligation under the OWT Act. However, in refuting this proposition the Respondent Manager and his witnesses (members of staff working different shifts in a given week) gave evidence that the Complainant took cigarette breaks and this fact was not denied by the Complainant who conceded that she stepped outside for a cigarette break up to five times a day. It appeared to me that the Complainant did not register that these breaks might be perceived as breaks for the purpose of the Act as they were taken as and when the opportunity arose and were not formally recognised. The Complainant argued that the Respondent never specifically made provision for her breaks.

The respondent’s case is that the Complainant would submit her hours of work to the bookkeeper BR who would confirm payment. BR gave evidence that she would always pay the hours as were submitted by the Complainant. She never raised a query and the hours sought were always paid through the system. The Complainant was never refused anything she sought per BR. The paperwork opened to me supported the evidence.

The Respondent brought in three members of staff all of whom were working on the premises at different times of the week and all of whom overlapped with the Complainant at some point or another. Their evidence was unanimous in that breaks were taken in line with the ebb and flow of customer demand. There was always time for a cup of tea.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00020510-002 The Respondent conceded that by reason of an oversight he had not paid Notice and the Complaint is well founded Notice must be paid.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00020510-003 -The Rspondent concedes he did not provide a Contract of employment and this claim is well founded and I award €150.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00020510-004 – I am only inclined to make one award under this Act and no second complaint is well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00020510-005- This complaint is not well founded as the Complainant was getting her breaks.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00020510-006 – this claim is not well founded as the Complainant was paid for all the hours she put in for and no unlawful deduction was made.

Dated: 17th December, 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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