ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009906

Complaint/Dispute:

ActComplaint/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-00012948-002 03/08/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00012948-003 03/08/2017   Date of Adjudication Hearing: 10/11/2017 Workplace Relations Commission Adjudication Officer: James Kelly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant.  

Background:

The complainant worked for the respondent in a fast food restaurant and claims that she did not get her breaks and sometimes had to work excessively long hours. She also claims that while working there she was subjected to bullying and harassment by the owner. The respondent claims that the complainant was not entitled to breaks as she only worked 4 hours per day. It denies that the complainant was subjected to bullying and harassment.

Summary of Complainant’s Case:

The complainant is of Romanian nationality and claims that she commenced employment with the respondent on 7 October 2016 and worked approximately 37 and a half hours per week and was paid €375 net, at a rate of €10 per hour net. The complainant claims that she worked on her own most of the time or with unexperienced staff and because of this she did not get any rest breaks. She further claims that she had to work twelve hour shifts when the owner was on holidays and sometimes had to call her husband to come over to the respondents and bring her something to eat and to cover for her to allow her have a break. She claims that she would usually arrive at her workplace for 4pm to start work with one other person and would have to wait until the owner to arrive at 7pm to get a break. She claims that the owner would offer her work colleagues to go on a break. She claims that he would never offer her to go on a break, instead he would ask “are you hungry”. She claims that when the owner went on holidays at the end of June 2017 she was left covering the early shift from 12 noon to 4pm as well as the later evening shift. She claims that she had to work for 7 days straight, where she had no rest breaks and no lunch breaks just working long days. She claims that her employment contract says she is down to work 20 hours per week but she was working 37 and half hours per week. She claims that she never got a copy of her contract. In cross examination, the complainant claims that she did sign the contract of employment that was presented in evidence by the respondent on three separate occasions and she did sign the weekly time sheets that were also presented in evidence. The complainant also brought a Bullying and Harassment complaint under the Industrial Relations Act, 1969. She claims that she had worked for the owner of the respondent’s business in the past and had returned to work for him in October 2016 when he asked her to return, but she now regrets returning to work for him. She claims that he was a nice man at the start but he changed and his behaviour became aggressive and unpredictable. She claims that he shouted at her and used bad language to her and would embarrass her in front of customers. She referenced a number of incidents that occurred, in particular, once when a customer complained about a wrong order and where the owners took it out on her for a long time afterwards. She claims that she would regularly have gone home upset and crying. She claims that she went out on sick leave because of anxiety and did not return to work with the respondent. In cross examination, the complainant agrees that she did not make a formal complaint, she claims that she was aware that she had signed documents, she had trusted people but was not aware what they were and she was not aware of the employee handbook or its contents.  

Summary of Respondent’s Case:

The respondent is a limited company that runs a fast food outlet where the complainant had worked since October 2016. The respondent claims that the complainant left of her own volition as of 8 September 2017, after a period out on sick leave. The respondent claims that the complainant was on a serious of three month contracts of 20 hours per week and she had signed the most recent of these contracts in July 2017. The respondent claims that the complainant worked four hours per day, five days a week and she was not actually entitled to a rest period during her shift. The respondent claims that it kept records on weekly time sheets of all its staff and the complainant is recorded for a 4-hour day and 5 days a week on the records presented in evidence and she has signed all the sheets. The respondent claims that it had an inspection by the inspectorate of the Workplace Relations Commission and no issues were raised in relation to staff rest periods. The respondent claims that the complainant was invited to take breaks just like all the other staff were and she herself would often refuse the offer to take a break. The respondent’s owner said the complainant was not asked to look after his business while he was on holidays that this responsibility was shared out by all of his staff. The respondent’s legal representative submitted that the complaint was brought against a wrong named respondent and the Workplace Relations Commission does not have the legal authority to substitute a third party for the named respondent in a complaint. The respondent’s legal representative handed in a signed document on behalf of the respondent stating that “I, [name] (director of [respondent]) do not consent to having the claimant’s complaint dealt with under Section 13 of the Industrial Relations Act, 1969” and claims that accordingly, the Workplace Relations Commission does not have jurisdiction to investigate this dispute. The respondent also contends that the nature of the complaint brought under this piece of legislation is not the type of dispute that is appropriate and in line with the intentions of the Industrial Relations legislation. The owner of the respondent in evidence claims that there was no bullying or harassment of the complainant. He claims that if there were problems they were small problems and were usually sorted out. It was his duty to point out mistakes when they were made, address them and move on. He claims that he is not an aggressive person, if he had to say something about a work issue it was never about personalities. He claims that he is in a very competitive market and he has to ensure his business is 100% every day. He said that the complainant is a good worker and they had only socialised recently before she left. He said he is unsure where this complaint was coming from.  

Findings and Conclusions:

Preliminary mattersReferral of complaint against the incorrect respondent The first jurisdictional issue which I must address relates to the respondent’s contention that the present complaint is inadmissible under the various named pieces of legislation on the basis that the complainant has failed to identify the correct name of her employer on the Complaint Referral Form. The respondent submitted that the present proceedings have been initiated against the wrong respondent’s namely [the trading name] t/a [the correct legal entity] as opposed to [the correct legal entity] t/a [the trading name]. The respondent submitted that this is the wrong name and the Workplace Relations Commission does not have the legal authority to substitute a third party for the named respondent in this case. The complainant contends that she erroneously inserted the names in the wrong order on the form when submitting her complaint to the Workplace Relations Commission. In considering this issue, I have taken note of the High Court case of O’Higgins –v- University College Dublin & Anor [2013] 21 MCA where Hogan J. held that “Even if the wrong party was, in fact, so named, no prejudice whatsoever was caused by reason of that error (if indeed, error it be) …. In these circumstances for this Courtto 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”. It should be noted that the complainant was not legally represented and that as a lay litigant she was totally unfamiliar with the procedures for referring a claim to the Workplace Relations Commission. It is somewhat difficult and pentadic to see how the order of the respondent name on a non-statutory complaint referral form could in some way prejudice the respondent. I am satisfied that the complainant’s employer would suffer no prejudice by being named as the correct respondent in the instant proceedings. I consider that if I were to disallow the complainant case and not amend the name of the respondent it would amount to a grossly disproportionate response and deprive her of the substance of her right to have the complaint heard and decided on its merits. Accordingly, I amend the name of the respondent to reflect the name of her employer. Jurisdiction to investigate the dispute The second jurisdictional issue relates to the respondent’s legal representative handed in a signed document on behalf of the respondent stating that “I, [name] (director of [respondent]) do not consent to having the claimant’s complaint dealt with under Section 13 of the Industrial Relations Act, 1969” Section 13 (3)(b) states that “A right commissioner shall not investigate a trade dispute – (i)                  … (ii)                If a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a right commissioner. However, I note that Section 36 of the Industrial Relations Act, 1990 sets out the rules in relation to the objection by a party to the investigation by an Adjudication Officer. Section 36(1) reads, “An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.” [my emphasis added] Accordingly, as the objection was not notified in writing within three weeks after notice of the reference of the dispute has been sent by post to that party and only presented on the day of the hearing I cannot accept the respondent’s objection to my investigation into the dispute and I am satisfied that I do have jurisdiction to make a recommendation. Type of dispute under Section 13 of the Industrial Relations Act, 1969 In relation to the final preliminary point raised in relation to the type of dispute that may be progressed under Section 13 of the Industrial Relations Act, 1969. I have not found any restriction on a bullying and harassment type dispute from being progressed under the legislation and accordingly, I am satisfied that the present dispute falls within the definition of a “trade dispute” as provided for in the Section 3 of the Principal Act – Industrial Relations Acts 1946. I take note here of the definition which reads, “the expression “trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person [ and includes any such dispute or difference between employers and workers where the employment has ceased,]” Therefore, I am satisfied that I may proceed in my consideration of the evidence. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00012948-002The LawRests 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). (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). Section 25 of the 1997 Act, as amended, states that: - (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.   […](4) 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 [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.The Labour Court in the case of Nurendale Ltd T/A Panda Waste and Andrei Suvac, DWT1419, stated that: - “In reliance on the terms of this contract the Respondent submitted that the Claimant was obliged to take breaks and that if he failed to do so this was through his own choosing. The Court cannot accept that submission. In Antanas v Nolan Transport [2011] 22 ELR 311, having considered the decision of the CJEU in Case C-484/04, Commission v United Kingdom IRLR 888, this Court held that Directive 2003/88/EC, from which the Act of 1997 is derived, places a positive obligation on an employer to ensure that the breaks are actually taken and it is insufficient to merely provide that breaks can be taken. In this case, no evidence was tendered to the Court to show that the Respondent took any measures to ensure that the Claimant actually took the breaks to which he was entitled.It is also noteworthy that this contract appeared to place an obligation on the Claimant to maintain records of his working time and breaks. Section 25 of the Act places that obligation on an employer. It cannot be transferred by contract or otherwise to an employee so as to relieve the employer from its statutory duty to comply with that section”. Conclusions There is contested evidence from the parties on this element of the complaint. The complainant has stated that she did sign her contract of employment and the respondent’s weekly time sheets which suggest that she was contracted to work and worked only 20 hours over 5 days per week. However, she claims that this was a front to her real situation. She claims that she worked 37 and half hours per week and in the latter part of June 2017 she had to cover the owner while he was on holidays, which meant she had to work much more. She said that she was wrong to have signed both the contract of employment and the weekly timesheet documents but if she did not she would not have been paid. The respondent points to the fact that the complainant was contacted to work 20 hours per week and usually worked 20 hours per week. It claims that her signed contract of employment and the signed time sheets support its case. It claims that the complainant was not actually entitled to rest breaks as she did not work beyond the 4 hours 30-minute threshold per day. However, the respondent’s evidence is that she was offered rest breaks while working there. It presented her work colleagues at the hearing to give evidence and they claim that everyone working there was offered breaks from time to time including the complainant. On consideration of all the facts I note the respondent has kept records to support its case and refute the complainant’s allegations. The records have been signed by the complainant and that is not in dispute. The respondent claims that it has had a full inspection by an Inspector of the Workplace Relation Commission and no issues were raised in relation to rest periods. The complainant’s case is based on the assertion that she signed documents to represent one situation when she actually was working twice that in a normal working week. The evidence in this case is stacked heavily against the complainant and in favour of the respondent. Therefore, I must find in the respondent favour. Accordingly, I am satisfied that the complainant’s claim that the respondent was in breach of Section 12 of the 1997 Act is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 - CA-00012948-003. In relation to this dispute, I have listened to, read and considered all the evidence from both sides. I am satisfied that the complainant had felt somewhat under appreciated by her employer during the last few weeks/months working there. She felt she was constantly being given out to and when a mistake was made she suffered the brunt of this. However, I note that she has not raised a formal grievance with the respondent. I have heard the owner’s position and it is clear that he would pick up on things if they were wrong as he felt he was entitled to do but he said it was never personal and is in no way akin to bullying or harassment behaviour. I have heard that both parties were good work mates in the past and consider each other as good workers and good people. It is clear that that good working and personal relationship has broken down somewhere along the line. It has not been disputed that the complainant went out on sick leave because of anxiety and failed to return to work. The respondent seems genuinely sorry that this happened and equally as sorry that she failed to return. It has been well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Acts until all the internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances. Normally, in such a case, the recommendation would be that the complainant should go back and exhaust all the internal dispute resolution mechanisms for addressing grievances before considering further referrals of this matter to the Workplace Relations Commission. However, in this case the complainant has now left her employment with a rather bitter feeling towards the respondent and has taken up a position elsewhere where she appears to be content. I expect that the opportunity to address her grievance internally or indeed informally with the respondent has now elapsed. Taking all that into consideration and noting the past good professional relationship and goodwill between the parties, I am recommending that, as a full and final settlement to this complaint, the respondent pay the complainant €250 (two hundred and fifty euro) as a goodwill gesture and appreciation of her loyalty and hard work prior to going out on sick leave and leaving the respondent’s workplace. It should be noted that this recommendation of an award to the complainant is as a goodwill gesture only, as I have not made a finding in the complainant’s favour in relations to the bullying and harassment claim.  

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00012948-002 Accordingly, I am satisfied that the complainant’s claim that the respondent was in breach of Section 12 of the 1997 Act is not well founded and must fail. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 - CA-00012948-003. I am recommending that, as a full and final settlement to this complaint, the respondent pay the complainant €250 (two hundred and fifty euro) as a goodwill gesture and appreciation of her loyalty and hard work prior to going out on sick leave and leaving the respondent’s workplace.  

Dated:   09/02/2018

Workplace Relations Commission Adjudication Officer: James Kelly

Key Words: Organisation of Working Time Act - Industrial Relations Act - fast food restaurant - rest breaks - bullying and harassment