ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009966

Parties:

	Complainant	Respondent
Anonymised Parties	General Assistant	Convenience Store

Complaints:

Act	Complaint/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-00013024-001	02/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00013024-002	02/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00013024-003	02/08/2017

Date of Adjudication Hearing: 13/11/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,following 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 as a General Assistant from 10th May 2011 to 4th February 2017. She was paid €9.25 per hour. She has claimed that she was not notified in writing of the changes to her hours of work, of a reduction in wages and that she did not receive breaks.

1)Organisation of Working Time Act CA 13024-001

Summary of Complainant’s Case:

The Complainant’s representative advised the hearing that the Complainant had made a complaint about breaks in the first application to the WRC but had listed it under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012. It was withdrawn at that hearing with a view to relisting. She is seeking an extension to the time limit. Breaks : She stated that she did not get breaks for all of 2016. She regularly worked 3.00pm to 8.00pm a total of 5 hours. She should have got a 15 minute break. No breaks were rostered. It was left up to the staff and they were unable to take breaks.

Summary of Respondent’s Case:

They stated that the Complainant filed the complaint under the wrong legislation on the first application and it was up to them to get it right, the extension should not be granted.

Regarding the breaks, they stated that the Respondent arranged the breaks and it was up to the staff to take them when they were due. They introduced time sheets but the Complainant refused to sign them. They did not have any records of breaks.

Findings and Conclusions:

Extension to the time limit

I note that this claim had been listed under the incorrect legislation. The Respondent had objected to it being heard the first day.

I find that these complaint forms are not prescribed forms and as long as the substance of the claim is clear then it should be possible to have the complaint prosecuted.

I am satisfied that this complaint was clearly signalled at the previous hearing.

I have decided to grant the extension to the time limit.

This complaint was received on 2nd August 2017 therefore the period that may be investigated is 3rd August 2016 to the date of termination on 4th February 2017.

Breaks

I note the conflict of evidence regarding the taking of breaks.

I find that the responsibility rests with the Respondent to organise breaks and to ensure that they are taken.

I note that the Respondent had no records to support their position.

Sec 25 of this Act places the responsibility on the Respondent to maintain records and in the absence of such records then the Complainant’s position prevails.

Therefore, on the balance of probability I find that the Complainant did not get proper breaks on a regular basis.

I find that the Respondent has breached Sec 12 of this Act and that compensation is warranted.

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.

I have decided that the Respondent has breached Sec 12 of this Act.

I require the Respondent to pay the Complainant compensation of €500 within six weeks of the date below.

2)Terms of Employment (Information) Act CA 13024-002

Summary of Complainant’s Case:

The Complainant has sought an extension to the time limit.

She stated that she was not notified of the pay cut covering the period 12th September 2016 to 9th December 2016. She was not notified of the reduction in hours in October 2016. She denied ever getting a letter of notification.

Summary of Respondent’s Case:

The Respondent stated that there was no basis to extend the time limit.

1)Hours

Rosters were placed on the notice boards of the change in hours and she was texted with her individual changes.

2)Paycut

They wrote to the Complainant regarding the reduction in pay. This letter was presented to the first hearing. She was also notified by text and by pay slip.

This claim is rejected.

Findings and Conclusions:

Extension to time limit

Regarding this complaint, no reason was given to grant the extension to the time limit therefore it is declined.

I find that the time limit under this Act has been amended by the Workplace Relations Act.

This complaint was presented to the Commission on 2rd August 2017 therefore the period that pay be investigated is 3rd February to 4th February which is the date of termination.

1)Notification of pay cut

I find that this is a continuing infraction for the period 12th September to 9th December 2012.

I find that this alleged breach occurred outside the time limit allowed.

Therefore, I cannot adjudicate upon it.

2)Reduction in hours

I find that this is a continuous infraction, from October 2016 to 4th February 2017.

I note the conflict of evidence regarding the notification by letter.

I note that rosters were placed on the boards.

I note that the Complainant was advised of her hours by text.

Sec 9 of ELECTRONIC COMMERCE ACT 2000, states, “Information shall not be denied legal effect validity or enforceability solely on the grounds that it is wholly or partly in electronic form”.

Therefore, notification by text meets the requirement of the Act.

I find that the Respondent has not breached Sec 5 of this Act

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.

I have decided that this complaint fails for the above stated reasons.

3)Industrial Relations Act CA 13024-003

This complaint was objected to and so no hearing took place

Dated: 25th January 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Changes to contract of employment: Breaks at work