DWT1817

This matter came before the Court by way of an appeal brought by Mr Conor Hourican (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00003791, dated 24 October 2017) under the Organisation of Working Time Act 1997 (‘the 1997 Act’). The Complainant’s Notice of Appeal was received by the Court on 30 November 2017. The Court heard the appeal on 30 January 2018 and 5 June 2018, in conjunction with the Complainant’s associated appeal under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2013 (‘the 2013 Regulations’). The Court’s determination in that appeal bears reference number TU/17/34.

The Complainant was employed by Rocatil Limited T/A Kennedy’s Bar (‘the Respondent’) from 17 February 2016 until his resignation on 11 March 2016. His employment transferred to the Respondent on the former date pursuant to the operation of the 2013 Regulations from Trinity Taverns Limited (In Receivership).

The Claims

The Complainant alleges that the Respondent breached both sections 11 and 12 of the 1997 Act in his case, in the relatively short time that he was employed by it. He alleges that – in breach of section 11 - he received less than the statutory daily rest period between his shifts on the following dates:

• 
  (i)Friday 19 February and Saturday 20 February 2016;

  (ii)Monday 22 February and Tuesday 23 February 2016;

  (iii)Monday 7 March and Tuesday 8 March 2016.

• 
  (i)Saturday 20 February 2016;

  (ii)Monday 22 February 2016;

  (iii)Sunday 28 February 2016.

Submissions and Evidence

The Complainant asserts in his written submission to the Court that on 19 February 2016 he worked until 1.00 a.m. and was rostered to work again from 10.00 a.m. the following morning, 20 February 2016 and that, therefore, he received a daily rest break of only nine hours on that occasion.

He further submits that he again worked until 12.45 or 1.00 a.m. on 22 February 2016 and was required to re-stock the bar at 9.00 a.m. the following morning, giving him a daily rest break of only eight hours or eight hours and fifteen minutes.

Likewise, the Complainant submits he worked until 1.00 a.m. on 7 March 2016 and was required to work from 9.00 a.m. the following morning, giving him a daily rest break of only eight hours.

In support of his claim that section 12 was breached in his case, the Complainant submits he worked the following hours without any rest break on the dates in question:

• 
  (i)Saturday 20 February 2016: 10.00 a.m. until 5.00 p.m.;

  (ii)Monday 22 February 2016: 4.00 p.m. until 12.45 p.m.;

  (iii)Sunday 28 February 2016: 11.00 a.m. until 8.15 p.m.

The Complainant’s evidence-in-chief in relation to the above alleged breaches of section 11 of the Act varied to some extent from what was stated in his written submission. In evidence, he stated – for example – that he finished at 12.45 a.m. on 22 February 2016 and that he finished his shift on 7 March 2016 at 12.30 a.m.

Mr Rob Mahon – who was present for a period of about four weeks around the date of the transfer from Trinity Taverns to the Respondent to oversee the transition – gave evidence that he prepared the rosters for the period in question. He told the Court that the Complainant had not raised any issues with him about his daily rest breaks or breaks between shifts. Mr David Lombard also gave evidence on behalf of the Respondent in relation to the alleged breaches of the 1997 Act. Mr Lombard informed the Court that he commenced employment as manager of the Respondent’s business on 17 February 2016 (the date of the transfer to the Respondent). He worked there initially on a part-time basis while he worked out his notice in his previous employment. He didn’t commence working full-time for the Respondent until 17 March 2016 i.e. after the Complainant had resigned. Mr Lombard’s evidence was that he collaborated with the Complainant on a number of matters but the Complainant had never raised any issue with him about either his daily rest breaks or rest periods between shifts. The witness also told the Court that it took some time after the transfer to get the staffing levels correct and that as a result there days when they were either over-staffed or under-staffed. He conceded on cross-examination that it would have been difficult for staff who were rostered to work on days when it transpired they were understaffed to get their daily breaks. Finally, Mr Lombard told the Court that he was unaware of the requirement to ensure that staff received an eleven-hour rest period between shifts although he eventually assumed full responsibility for preparing the Respondents rosters.

Discussion and Decision

The Respondent has not maintained records of the Complainants working hours and/or breaks in accordance with the 1997 Act. The Respondent did not adduce any evidence that rebuts the Complainant’s evidence in relation to the alleged breaches of sections 11 and 12 of the Act in his case.

Having considered the parties’ submissions and such evidence as was tendered to the it, the Court finds that the complaints under both section 11 and section 12 are well-founded. The decision of the Adjudication Officer is, therefore, set aside. The Court measures the appropriate compensation in all the circumstances at €1,000.00.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
25 June 2018______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.