Complainant

Respondent

Anonymised Parties

A chef

A restaurant

Representatives

Damien Tansey Solicitors

General Manager (Mr A)

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-00016654-001

05/01/2018

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

CA-00016654-002

05/01/2018

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

CA-00016654-003

05/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016654-004

05/01/2018

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

CA-00016654-005

05/01/2018

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

CA-00016654-006

05/01/2018

The complainant worked as a chef for the respondent and alleges that she did not receive a Sunday premium, that she worked excessive hours without sufficient breaks and did not receive a copy of her terms and conditions of employment.

The complainant commenced work with the respondent in August 2017 as a part-time chef at €15 per hour. Her working hours were agreed verbally to be 20-25 hours per week and she had no written contract. She worked these hours for the first week of her employment before commencing as a full-time sous chef due to the demands of the restaurant. From then she worked an average of 80 hours per week.   Her hours were set by the head chef and approved by the General Manager (Mr A). On or about 27th September 2017 it was agreed with Mr A that the complainant would have her pay changed from hourly paid to a weekly salary. She signed a contract at that point in time but the respondent subsequently did not furnish her with a copy. Her hours were to be 40-45 per week and the salary was €600 p.w. Around 1st November the Head Chef resigned and the complainant took over. She queried the terms and conditions and was told issues around pay and hours would be dealt with after the Christmas period, which the complainant understood to mean she would be adequately compensated and provided with a new contract. She did not receive a written statement outlining her conditions within 2 months of commencing this role and her pay remained at sous-chef level.   The new role involved yet longer hours. Mr A constantly applied pressure on the complainant to cut costs causing considerable stress.

The months of November and December were busy and the kitchen was understaffed, meaning the complainant had to perform additional tasks requiring yet longer working hours.   The complainant never received paid time off in contravention of the Organisation of Working Time Act. She spoke to Mr A about this on three or four occasions. She also sent an email about her right to Sunday pay. For the period from August 2017 until January 2018 the complainant worked an average of 80 hours per week. Her payslips show that she was working these hours. The sign-in sheets also support this. She was required to work consecutive long shifts that did not allow for the statutory rest of 11 hours in each 24-hour period. For example, on 7th September the complainant finished a 14 hour shift at 12.30 a.m. only to start her next shift at 8.a.m.   Similarly, she was often asked to work 7 days in week and sometimes 14 days in a row. At one point she had worked 52 days in a row

The complainant did not receive daily rest periods as prescribed by the Organisation of Working Time Act 1997. If she took a break to eat she usually had to complete paperwork or call suppliers at the same time. There was no clock-in system to monitor breaks.

The complainant voiced her concerns in relation her employment rights to management by email dated 4th January 2018. The following day she was told by Mr A that she was being let go. The complainant was dismissed after attempting to assert her statutory rights which constitutes penalisation.

The complainant worked an average of 80 hours per week which means that her hourly rate was €7.50 meaning that the respondent was in breach of the Minimum Wage legislation.

The complainant was employed initially as a sous chef on 1 Sept 2017. On 31 October she expressed her interest in applying for the vacant Head Chef role. She was informed by a member of management that she would be given the opportunity to fulfil this role on a permanent basis subject of a probationary period of three months after which time her terms and conditions would be reviewed. Immediately there were problems with; HACAAP, rostering staff, ordering supplies, general staff management and significant interpersonal difficulties led to a number of staff resigning. These problems led to a decision by management that her employment would be terminated.

None of the current complaints were raised by the complainant during her period of employment with the exception of the question of Sunday premiums on 4th January 2018.   The complainant was paid a salary above the minimum wage that included a Sunday premium Although this was not referenced in her Contract of Employment, it was implicit given that her working week was from Monday to Sunday.

As trial Head Chef the complainant had all responsibility for rostering within the kitchen, subject to management oversight. Despite the production of rosters which complied with the requirements of the Organisation of Working Time Act the complainant repeatedly ignored these rosters, turning up for and leaving work, at a time of her own choosing. Despite repeated requests she refused to adhere to her allocated timings. On several occasions, given the ambiguity as to how time on the premises, outside of the kitchen, was being spent, the complainant was requested to complete any official administrative work from the office, a request she ignored. It is the respondent’s position that the complainant’s issue relates to time spent on the premises which did not constitute working. Furthermore, the rotas would suggest that she availed of her weekly rest period. Following referral of the complaint the respondent examined the CCTV to determine the attendance of the complainant and this shows considerable variation in the hours claimed and her actual arrival in the kitchen to commence work.   The time spent by the complainant on the premises included time sitting at the bar or on the lap top on non-work related activities. The respondent contends that Mr A regularly told the complainant to take time off and this is supported by evidence of other employees and by a trail of texts.

The respondent acknowledges that the first three weeks of the complainant’s employment were hectic. However, from weeks 4 to 8 she refused to sign in.

The respondent disputes that November and December were busy. November was quiet and December was only busy two nights per week at the weekend.

The employee handbook was mailed to the complainant and it contains the provision that ‘there are no additional premiums paid’, which refers to Sundays.

Sunday Premium

Section 14 of the Organisation of Working Time Act states;

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The respondent did not give the complainant a copy of the terms and conditions relating to her employment. There is therefore no evidence that the weekly wage agreed upon, €600 included a Sunday premium. The respondent contends that this was implied insofar as her working week was described as Monday to Sunday and secondly, that there was a reference in the employees’ handbook that ‘there are no additional premiums paid.’ It is insufficient for the employer to simply say (as the Respondent does in this case) that because the Basic Rate of Pay exceeds the National Minimum Wage it compensates for Sunday working. I don’t accept that a general reference such as that contained in the employee’s handbook is sufficient to infer that the Sunday premium has been provided.

Terms and Conditions

The respondent did not furnish the complainant with the terms and conditions of her employment as required under the Terms of Employment (Information) Act, 1994.

Complaints under the Organisation of Working Time Act - breaks and rest periods.

The complainant states that she was required to work 80 hours per week throughout the period of her employment and was not afforded breaks in accordance with the requirements of the Organisation of Working Time Act. The respondent contends that it was the complainant’s responsibility to prepare the rosters and as such she had all responsibility for rostering within the kitchen, subject to management oversight. Despite the production of rosters which complied with the requirements of the Organisation of Working Time Act the complainant repeatedly ignored these rosters, turning up for and leaving work, at a time of her own choosing. The respondent also produced evidence that when the issue was raised he made efforts to deal with the problem, insisting on time off being taken. Secondly, it is the respondent’s position that the complainant’s issue on the total hours spent at work on a weekly basis relates to time spent on the premises which did not constitute working. Furthermore, the rotas would suggest that she availed of her weekly rest period.   Following referral of the complaint the respondent examined the CCTV to determine the attendance of the complainant and this shows considerable variation in the hours claimed and her actual arrival in the kitchen to commence work. The respondent further contends that the time spent by the complainant on the premises included time sitting at the bar or on the lap top on non-work related activities.

The Organisation of Working Time Act provides as follows in relation to breaks;

Section 11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Section 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).

Section 13.—(1) In this section “daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

In relation to the issue of breaks in this case it is of note that the complainant was the manager responsible for the rosters. There is nothing in evidence to suggest that the respondent denied she was entitled to rest periods (Section 11) and he did not require her to work for periods longer than envisaged under Section 12 of the Act.   The complaints in relation to the rest periods under Sections 11 and 12 are therefore not well founded. However, in relation to weekly rest periods (Section 13) there is no evidence or record to indicate that these rest periods were granted and therefore the complaint is well founded.

Complaints under the Organisation of Working Time Act - maximum weekly hours

Section 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

                                (a) 4 months, or

                                (b) 6 months—

                                (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

                                (ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

                                or

                                (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

In relation to weekly hours the Act requires the employer to behave proactively and not to permit an employee to work in excess of the maximums specified. It is not sufficient to say (as the respondent claims in this instance) that when the matter was raised I addressed it. The onus is on the employer to ensure that it does not happen in the first place. And while doubts about the actual amount of hours worked, were raised by the respondent it is clear that the view of the respondent was that it was a matter for the complainant to sort this issue out for herself. The law requires the employer to ensure that this does not happen and therefore this complaint is well founded. The employee would be expected to comply with any arrangements put in place by the employer for recording attendance and, in this regard, I note that the complainant did not comply with the requirements in terms of signing for hours attended which made it difficult for the respondent to identify a problem and means that complainant was in part responsible for the failures of the respondent.

Penalisation

Section 26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.

                                (2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,  

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership

The complainant alleges that she was dismissed as a result of raising her entitlement to a Sunday premium. The respondent has stated that the complainant was dismissed at the end of her probationary period for the Head Chef position due to issues with HACAAP, rostering staff, ordering supplies, general staff management and significant interpersonal difficulties led to a number of staff resigning. While these factors may have influenced the respondent there is nothing to indicate that they had been communicated to the complainant as being of such significance as to represent a threat to her continued employment. The timing of the complainant raising the issue of Sunday premium and her dismissal the following day leads me to conclude that her dismissal was linked to her asserting her rights under the Organisation of Working Time Act and therefore this complaint is well founded.

Minimum Wage

At the hearing the complainant claimed that the hours worked by her in respect of her fixed weekly wage meant that she was on less than the statutory minimum wage. This was not part of the original complaint submitted and is therefore rejected by me.

The complaint in relation breaches of Section 14 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant the sum of €640.

The complaint in relation breaches of Section 13 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant the sum of €1,000.

The complaint in relation breaches of Section 15 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant the sum of €1000 in compensation.

The complaint in relation breaches of Section 26 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant the sum of €5000 in compensation.

The complaint in relation breaches of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Daily and weekly breaks.   Sunday premium. Weekly hours. Terms and Conditions of Employment information.