Complainant

Respondent

Anonymised Parties

A Chinese Restaurant Employee

A Chinese Restaurant

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-00015503-001

01/11/2017

The complainant was employed by the respondent as a cashier/bar staff in July 2012. The complainant left the employment in early 2018. The complaint relates to the complainant’s assertions that there were occasions when she did not receive rest breaks while at work.

The complainant stated that there were no issues in relation to taking breaks prior to October 2017. The complainant stated that in October 2017, there were four occasions (mostly Tuesdays and Wednesdays) when she did not receive her break and one further occurrence on 1st November 2017. The complainant stated that breaks were not rostered in the restaurant and it was often the case that the complainant did not know when she would get her break or who would cover her when she was on her break. The complainant stated that she felt it was unfair that she had to worry about who would cover her and when she could take her break. The complainant submitted her complaint to the Workplace Relations Commission on 1st November 2017.

The respondent stated that all staff were given their breaks as is their entitlement. The respondent stated that previous management at the restaurant did not keep records of the breaks taken by staff but it was satisfied that all breaks were provided.

In relation to this complaint I find as follows:

The complainant stated that she did not receive her breaks while at work. The respondent stated that all staff got their breaks. The respondent was given the opportunity to provide records to confirm that breaks were taken but was unable to do so.

The entitlement to rest breaks while at work is set out in Section 12 of the Organisation of Working Time Act, 1997 which states as follows:

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).

The requirement to keep records is set out in Section 25 of the Organisation of Working Time Act, 1997 which states as follows:

25(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 and, where applicable, the Activities of Doctors in Training Regulations 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.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(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 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.

In the instant case the employer did not keep records as required. Accordingly, I accept the complainant’s evidence that she did not get her breaks on a total of five occasions between 1st October 2017 and 1st November 2017.

Having considered the submissions of both parties to this complaint, I declare that the complaint is well founded. The respondent is directed to pay the complainant €250.00 in compensation for the infringements of her rights under the Act. Payment should be discharged to the complainant within 42 days of the date of this decision.