Complainant

Respondent

Anonymised Parties

An employee

A Restaurant

Representatives

Aishling McGowan Penninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013805-001

07/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00013805-003

07/09/2017

CA-00013805-003

The claimant submitted a complaint to the Commission on the 7th of September, 2017. He is claiming that he was not given proper breaks during the working day in accordance with the Organisation of Working Time Act 1997.

The complainant commenced employment with the respondent as a Sous Chef in April 2016.

It is submitted that the complainant

has worked only three days since april 8th 2017, due to bullying in the kitchen,

wasn’t allowed his breaks for four months.

The respondent submits that

the Claimant lodged his claim on the 7th September 2017, the reference period applicable to the claim falls between the 7th September 2017 and the 8th March 2017 as per Section 27(4) of the Act, which states:

“A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

the Claimant worked 4 days during this reference period as follows: 8th April 2017 – 12 hours, 21st July 2017 – 8 hours 10 minutes, 22nd July 2017 – 8 hours 10 minutes and 29th July 2017 – 8 hours 10 minutes

the rosters as posted for staff request that staff record their breaks as they are taken and for the relevant dates indicate that breaks were taken by other staff,

It should also be noted that the Claimant did not record breaks on the dates specified but other staff have recorded their breaks in the rosters throughout each working day,

the Respondent made enquiries of other staff and it was confirmed that they do get breaks throughout the working day,

upon learning of the complainant’s complaint in respect of breaks, the Respondent not only asked that staff to record their breaks on the roster but also on a separate break form,

the claimant failed to record his breaks on the days he worked as outlined, in comparison with the other members of staff.

The complainant contends that he was not allowed to take his breaks. The complainant stated that he had on occasion started work at 10 am and had received no break until 11 pm.

Section 12 of the Act requires an employer to provide rest intervals at work 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).

(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 requires that the employer to keep records to show compliance with the Act.

The respondent advised the hearing that the complainant had only worked four days during the six months preceeding the complaint. The complainant did not dispute this but stated that he did not get his breaks on the days in question.  The complainant told the hearing that he had been out of work on sick leave for a period and stated that he had been assured on his return to work that he would get his breaks. He stated that he was told this by Ms H but that it didn’t happen.   He agreed that a break sheet had been introduced and that other staff signed this break sheet when they took their breaks but that he did not get any breaks. He stated that other staff did get breaks but that he did not. He stated that when tried to take a break the head Chef roared at him to get back into the kitchen.   He added that waiting staff would try to have food all at the same time but states that he was given punishment jobs by the Head Chef or shouted at when he tried to take breaks.

The respondent advised the hearing that all staff receive breaks and meals during work. Ms. H witness for the respondent advised the hearing that all staff take breaks and are provided with meals throughout the day. Ms. H went through the times staff commenced work and their entitlement to breaks and a cooked breakfast and stated that they also received a dinner on the premises. Ms. H stated that the complainant first raised the issue of his breaks with her in March 2017 and that she had in May 2017 introduced break sheets for all staff to sign indicating that they had taken breaks. This sheet also contained suggested time slots for breaks.   Ms. H advised the hearing that she had also interviewed other staff to ask if they were getting breaks and stated that other staff had indicated that they were receiving their breaks.   Ms. S stated that she had nonetheless introduced the breaksheets after the complainant raised the issue with her. She provided copies of the notes of these staff interviews and copies of the signed break sheets to the hearing.  

The respondent submits that staff have been advised as to break entitlements and a breaksheet introduced to ensure that breaks are recorded. The respondent submits that all other staff take breaks but that the it cannot stand over each staff member and ensure that they sign the break sheet but stated that most staff do sign these apart from the complainant.   The breaksheets submitted show the complainants name is on the roster but there are no break times signed for by the complainant or no records to indicate that the complainant received breaks on the specified dates.

It was accepted by the respondent that they had no records to indicate that the complainant had taken his breaks only that other staff had taken breaks.   The complainant told the hearing that others did take breaks but that he was shouted at by the Head Chef when he tried to take a break. The complainant explained that he was the only Sous Chef and was working directly with the Head Chef. The respondent did not ensure that the complainant took his breaks and had no record of the complainant having signed the break sheet.     This does not comply with S.12 of the Act. The respondent should have had arrangements in place so that the complainant could take breaks in accordance with the Act. I find therefore that the respondent failed to provide breaks to the complainant and failed to keep records.

CA-00013805-001

The claimant submitted a complaint to the Commission on the 7th of September, 2017 under Section 13 of the Industrial Relations Act.

The complainant commenced employment with the respondent as a Sous Chef in April 2016.

It is submitted that the complainant has worked only three days since april 8th 2017, due to bullying in the kitchen’ he was was treated unfairly was shouted at ,laughed at, over worked ,and wasn’t allowed his breaks for four months,

The complainant submits that he suffering with anxiety panic attacks, and depression and was put on medication for same,

He brought his feelings to the attention of the management and was advised of the need for doctor certs while out sick,

He was also told if he wanted to make a complaint about bullying it would have to be officially made and the person complained of would be informed,

This wasnt a good option for the complainant as he states he has seen staff being treated worse after making a complaint against the head chef.  Punishments jobs and ignored,

Management got in contact with the complainant in june asking when he was returning to work,he replied saying he would return when that head chef was gone .

he heard that the Head Chef was leaving of his own accord and he arranged a meeting in the about his returning fit to work on the 2nd of july,

the Head Chef did not leave as he was offered more money and asked to stay,

The complainant was due return to work on the 2nd of July, but couldn’t go in due to anxiety attacks.

The respondent submits that

the Claimant lodged his claim on the 7th September 2017, the reference period applicable to the claim falls between the 7th September 2017 and the 8th March 2017 as per Section 27(4) of the Act, which states:

“A rights commissioner shall not entertain a complaint under this section if it is presented to the

commissioner after the expiration of the period of 6 months beginning on the date of the

contravention to which the complaint relates.”

the Claimant worked 4 days during this reference period as follows: 8th April 2017 – 12 hours, 21st July 2017 – 8 hours 10 minutes, 22nd July 2017 – 8 hours 10 minutes and 29th July 2017 – 8 hours 10 minutes

The Claimant has alleged that he was the victim of bullying and harassment during his employment, which caused him to go on sick leave for a period of time. It is also alleged that the Claimant was due to return to work as he believed the Head Chef was leaving but later discovered this was not the case and decided not to return to work,

It is submitted that the Claimant went on sick leave on 9th April 2017 with “Stress”. The Respondent asked the Claimant to attend a welfare meeting to discuss his illness, and to try and ensure his safe return to work and the Respondent also furnished the Claimant with the Grievance Procedure, should he wish to lodge a complaint. The Claimant failed to respond to his employer, and a further letter was issued on the 17th May.

The Claimant then met with the Respondent on the 28th June 2017 to discuss his return to work. The Claimant was advised that the Head Chef was not leaving and also, that staff must sign the break sheets. The Respondent further advised the Claimant that they wanted him to return to work, asking him if he would like to utilise the Grievance Procedure. He Claimant said “[N]o not right now” and confirmed that he would be returning to work the week of the 7th July 2017,

The Claimant failed to return to work as planned. The Claimant returned to work the week of the 21st July, working two shifts that week as it had been agreed that he would return on a phased basis (shorter days). The Claimant spoke with Ms. Q for the Respondent, confirming to her that his return to work had gone well.   The Claimant also worked the 29th July 2017, where it is understood the Claimant advised the Head Chef he would no longer cover for him on the 30th July, as previously agreed as he believed the Head Chef had treated him poorly.    The claimant did not show up for work after this date. The claimant submitted his resignation on 16th of August 2017,

It is also submitted that the Claimant was reminded of his right to lodge a complaint in May 2017 and the Grievance procedures were issued to him in this correspondence. The Claimant was further reminded of his right to lodge a formal complaint during a meeting with Ms. H in June 2016, where he advised that he did not wish to pursue a complaint formally at that time.

The Claimant then returned to work in July 2017, advising Ms. Quigley that his return to work had gone well. Following an alleged incident on the 29th July 2017, the Respondent tried to meet with the Claimant on several occasions to discuss his return to work and his concerns,

It is submitted that the Respondent once again issued the Claimant with the grievance procedure and also the Bullying Prevention policy in August 2017,

The Claimant eventually attended a meeting on the 22nd August 2016 having tendered his resignation on the 16th August 2017. The Respondent then conducted a thorough investigation into the Claimant’s nine issues.

It is submitted that the Claimant requested his P45 on the 1st and 6th September 2017, without providing comments or waiting for the outcome of the investigation, lodging his claim on the 7th September 2017.

It is submitted that the complainant was subjected to bullying and harassment at work which caused him to go on sick leave for a period.

It is accepted that the claimant had attended work on four dates during the relevant period after which he failed to show up for work but tendered his resignation on 16th of August 2017.

It is clear from the submissions and from the hearing that the complainant did alert the respondent to the fact that he had issues with the Head Chef following which the respondent provided him with its grievance procedure and also the Bullying Prevention policy in August 2017.   The respondent in May and June 2017 invited the complainant to lodge a formal complaint in respect of the allegations of bullying. The complainant declined to lodge a complainant that time. The complainant attended work on three days in July 2017 and following an incident on 29th of July failed to return to work but instead submitted his resignation on 16th of August 2017.    

Following this the complainant was asked to re consider and a meeting was held on 22nd of August following which Ms. Q met with the head Chef and an investigation into the allegations made by the complainant commenced with an initial report being issued to the complainant seeking his comments on 4th of September. Without waiting for the outcome of the investigation the complainant wrote to the respondent on 1st of September and again on 6th of September seeking his p45 and then lodged his complaint with the WRC on 7th of September.

It is clear that the respondent in this case has demonstrated their willingness and commitment to engaging with the procedures encouraging the Claimant from an early stage to utilise and engage in the process on numerous occasions. It is also clear that the complainant was not willing to engage from the outset and even tendered his resignation before the investigation was completed and then requested his P45 during the process.

The complainant at the hearing confirmed that he was unwilling to lodge a formal complaint against the Head Chef as he stated that he would then have to work side by side with him after making such complaint. The complainant told the hearing that he raised the issues informally with the respondent but that he was not happy with the outcome of the informal investigation. The complainant confirmed that he had refused to put anything in writing despite requests from Ms. H.   The complainant did not formalise his grievance until 22nd of August 2017 after his resignation. The complainant told the hearing that he was happy that the grievance procedure was followed by the respondent but that was not happy with the outcome.

I am satisfied that the complainant resigned prior to utilising the grievance procedures despite the respondent’s efforts to engage with him.   I am also satisfied that when grievance procedures were utilised post resignation the complainant did not raise any issue with the procedures utilised by the respondent. In addition, I am satisfied from the evidence adduced that this dispute does not amount to a complaint in respect of the procedures used by the respondent but relates to the fact that the complainant was dissatisfied with the outcome of the respondent’s preliminary findings in the matter, this is not a matter on which a recommendation can be made by me.   Accordingly, I cannot recommend any further action to be taken by the respondent and the claim therefore fails.

I am satisfied that the complainant resigned prior to utilising the grievance procedures despite the respondent’s efforts to engage with him.   I am also satisfied that when grievance procedures were utilised post resignation the complainant did not raise any issue with the procedures utilised by the respondent. In addition, I am satisfied from the evidence adduced that this dispute does not amount to a complaint in respect of the procedures used by the respondent but relates to the fact that the complainant was dissatisfied with the outcome of the respondent’s preliminary findings in the matter, this is not a matter on which a recommendation can be made by me.   Accordingly, I cannot recommend any further action to be taken by the respondent and the claim therefore fails.