Complainant

Respondent

Anonymised Parties

Betting assistant.

Bookmaker

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-00016092-001

30/11/2017

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

CA-00016092-002

30/11/2017

Rescheduling of hearing.

An application for postponement accompanied by details of a pre- booked holiday in the USA was submitted prior to the hearing. This information was not available at the hearing on the 26 February.

A hearing was scheduled for the 17 September to hear the complaint. The respondent solicitor initially objected to a re- scheduled hearing. The WRC did not accept his reasons and notified the respondent of its intention to proceed to hear the complaint as scheduled. On the 14/9/18 the respondent solicitor suggested in an email to the WRC that “the Adjudication Officer who has all the submissions and evidence already proceed to issue a decision in this case (as she will with the remaining two cases) without the necessity of calling the parties to attend and the attendant costs i.e. no new material will be presented beyond what was ventilated in the other identical cases”.

This was acceptable to the complainant.

One submission was presented on behalf of all complainants by both the complainant and the respondent.

The WRC proceeded to issue the following decision.

Background.

The Complainant is employed as a betting assistant in one of the respondent’s betting outlets since 2001. She works 40 hours a week over 7 days.

She is making a complaint under the Organisation of Working Time Act 1997.She has not received her statutory entitlement to breaks throughout the course of her employment.

The Respondent has been made aware of their breaches of the legislation by way of correspondence from Mandate Trade Union. They have also been made aware of this breach orally by staff on numerous occasions. At no point has the respondent responded to these claims.

She submitted her complaint to the WRC on 30/11/17.

A written submission, which included this complainant’s complaints was submitted to the WRC at the hearing. Her complaint was associated with 13 other employees of the respondent.

The respondent’s written submission encompassed the complaints of all 14 complainants.

CA-00016092-001

The complainant’s representative, Mandate, states that the complainant has not received her statutory breaks as provided for under section 12 of the 1997 Act. The respondent is on notice of same. Mandate wrote to the respondent on 4/9/17 expressing concern at the company’s failure to comply with its obligations under the Organisation of Working Time Act 1997 and expressing grave reservations about the respondent’s plan to introduce “single manning shops” which would further endanger the complainant’s ability to take break periods in accordance with section 12(1) of the 1997 Act.

The respondent makes no reference to rest breaks in their staff handbook, nor is there any information concerning same on display in their stores. The complainant states that the respondent failed to put in place measures which would secure her breaks. As this matter of whether the claimant did or did not get her rest breaks is in dispute, Mandate point to section 25(1) of the Act, the obligations flowing from that section and in the case of non-compliance with said section, the consequential obligations found in The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations with which they submit the respondent failed to comply. It is accepted that there was no clocking in facilities. Regulation 4(1) states

“Where no clocking in facilities exists a form to record the days and hours worked in each week by each employee shall be kept by the employer in the form set out in the Schedule entitled Form OWT 1 or in a form substantially to like effect”

Mandate advise that Respondent has no documentation required by Regulation 4 to prove that the complainant has taken her rest breaks. Lacking such evidence, the respondent is unable to refute the complainant’s complaint.

Mandate relied on the decision of Tribune Printing and Publishing Group v Graphical Print and     Media Union (DWT 6/2004) which stated that it wasn’t enough to merely tell employees that they could take rest breaks but that an additional onus rested with employers to put in place measures “to ensure that that the employee receives those breaks”.

Mandate, in anticipation of the respondent’s reliance on Stasaitis v Noonan Services Group (2014) E.I.R. 173, distinguish the facts in that case where a security guard, operating in a hut on his own, could take breaks in periods of inactivity. They state that there are no periods of inactivity for the complainant; she is constantly engaging with customers at the counter or tasked with other elements of her role. The respondent does not meet his responsibilities by providing canteen or tea and coffee facilities. The complainant certainly uses the canteen but only to bring beverages to her desk while continuing to work and be at the disposal of the respondent, attending to customers.

The complainant refutes the respondent’s assertion that the EPOS system is one measurement or reflection of the complainant’s work. It does not measure periods when she is engaging with customers or is dealing with other aspects of her role.

The onus lies with the respondent to ensure that the complainant gets her rest breaks and that records are maintained in compliance with the 1997 Act to demonstrate that this has happened. This did not happen in this case.

The complainant asks that her complaint be upheld.

CA-00016092-002

Respondent had failed to meet his obligations. The complainant’s annual leave entitlement was not calculated on the average hours worked in the 13 weeks preceding her annual leave. This has resulted in a financial loss to the complainant as follows; Week ending 11/O5/17: Pay received €570, average pay based on 13 weeks prior to leave was €695.50, so the loss amounts to €125.50.2. 18/05/17: As for week ending 11/5/17 above.

The complainant is seeking compensation for these losses.

The complainant asks the adjudicator to uphold her complaint.

CA-00016092--001

The respondent refutes the complainant’s complaint and states that she does get breaks in accordance with section 12 of the 1997 Act. The respondent submits that the complainant identified no dates for the alleged infringements.

The respondent maintains that “break” is not defined whereas “working “is. The respondent does not schedule fixed breaks as peak times vary from outlet to outlet depending on local racing events or national or international events but encourages employees to take breaks when it suits them and according to the needs of the business. Staff are encouraged to take their breaks at quieter times. Some employees take their breaks off site, others bring in food and use the canteen provided by the respondent. The respondent operates a flexible regime enabling staff to take paid time off for personal needs. The respondent asserts that staff work out a roster for breaks in most outlets. The respondent cites Stasaitis v Noonan Services Group (2014) E.I.R. 173, to support the argument that the complainant could determine the time of her breaks. The complainant in the latter case as in the instant case had not raised a complaint with his employer.

The respondent’s Retail Operations Director advised in evidence that the complainant never activated the grievance procedure nor raised the matter in the Employee Forum which offers employees the opportunity to raise and deal with concerns.

The respondent maintains an EPOS system (Electronic Point of Sale) which they contend is a somewhat reliable if not exact indicator of breaks taken by staff and should be considered as evidence. This system records the complainant’s inactivity at the till and the simultaneous presence of another employee at the till. The respondent submitted a document stating that over a four-month period 1/9/17-31/12/17, the complainant had the opportunity to take 115 breaks lasting at least 20 minutes; 51 of these lasted between 20-30 minutes;39 lasted 30-60 minutes and 25 lasted more than 1 hour. During these periods there was another employee active on the till.

The respondent argues that they meet the conditions set out in Tribune Printing and Publishing Group v Graphical Print and Media Union (DWT 6/2004) which observed that

“stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety did not discharge the employer’s obligation under the Act of 1997”.

The respondent employs additional staff as necessary to ensure that the complainant gets her breaks.

The respondent relied on the High Court judgement of Mr. Justice Kearns in Stasaitas v Noonan Services Group Ltd. (2014) E.L.R. 173. Kearns J, in this case involving a security guard operating out of a security hut on his own, did not stipulate that the employer must set fixed break times. He accepted that the employee could elect to take a break in periods of inactivity.

The respondent in addition states that they met the requirements set down in Hughes v Corporation of Commissionaires Management Ltd. (2011) EWCA Civ 1061 CA, in that they chose their own times, their breaks were uninterrupted and they could use the break periods as they wished.  

The complainant could and did take her breaks at a time of her own choosing.

The complaint should not be upheld.

CA 16092-002

Respondent maintains that he complied with his statutory obligations set out in section 20 of the 1997 Act. The respondent disputes the complainant’s method of calculating annual leave pay and in reliance cites section 20(2)

” The pay in respect of an employee’s annual leave shall be at the normal weekly rate of pay in accordance with regulations made by the Minister for the purposes of this section”

The statutory instrument defining “normal weekly rate” for the purpose of section 20(4) of the 1997 Act is found in the Organisation of Working Time (Determination of Pay for Holiday) Regulations 1997 (S.I no 475 of 1997). Regulation 3(2) provides that if the employee’s pay is calculated wholly by reference to a “time rate or salary or any other rate that does not vary in relation to the work done “, the normal weekly rate of pay is “the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences”

The respondent asked the adjudicator not to uphold this complaint.

CA-00016092—001

The Law

I am required to examine the evidence in the light of the 1997 Act.

Section 12 of the Act, compliance with which is in issue in this case, provides 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 (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 Labour court in the case of Nutweave Ltd t/a Bombay Pantry v Kumar, DWT1537 and relying on the dicta of Peter Gibson LJ in Gallagher v Alpha Catering services t/a Alpha Flight Services [2005] I.R.L.R.102) determined that

” For the purposes of the Act a break is a period which the worker knows in advance will be uninterrupted, which is not working time and which he or she can use as he or she pleases”.

The evidence submitted on behalf of the complainant does not demonstrate that the complainant enjoyed uninterrupted breaks in line with section 12 of the Act for the cognisable period which is 1 June – 30 November 2017. The EPOS document which the respondent asks us to consider as evidence that she did enjoy breaks does not conform to the type of records demanded in section 25(1), does not measure ‘off-till’ activity, and fails to demonstrate that the respondent complied with his obligations to provide breaks. The proposition that the absence of the complainant at the till (off-till activity), with the till being simultaneously attended to by another employee, is evidence of having secured a break as opposed to exercising her responsibilities towards customers and staff is unconvincing. The EPOS document indicates 115 periods of till inactivity for at least 20 minutes over a 4 -month period. The complainant’s representative advises that she had to be at the disposal of the employer, attending to customers or other responsibilities during her break. This could not be seen to constitute an uninterrupted break.

The existence of canteen facilities, and the employment of additional staff- the evidence submitted by the respondent as proof that the complainant did enjoy breaks - is not evidence of uninterrupted breaks.

Requirement to specify break periods.

Stasaitas v Noonan Services Group Ltd. (2014) E.L.R. 173 was cited as authority that the Act does not require that breaks be specified in all circumstances. The Complainant in that case who could take his breaks at quieter times was employed in an industry that was exempt, provided certain conditions were met, from the strict application of section 12 of the Act. The Complainant in the instant case was not employed in an industry that comes within the scope of that exemption and so its application to the instant case is questionable.

Cognisable period.

The cognisable period for the purposes of this complaint is 1 June – 30 November 2017.

Evidence of compliance with section 12 of the Act.

Section 25 states.

“(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”    

Section 25 (4) states

“(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.”

The respondent submits that it met the requirements of the Act but apart from assertions and the EPOS document offered no other evidence in support of that claim.

The respondent cannot avail of the exemption from compliance with section 25 of the1997 Act as the respondent did not comply with the Regulations set out in The Organisation of Working Time Records) (Prescribed Form and Exemptions) Regulations 2001 Act. These Regulations deal with the obligations flowing from non- compliance with section 25(1). Specifically, the respondent did not comply with Regulation 5(2) (a), (b),(c). Determination DWT 1627 dealt with a complainant who did not provide details or dates of the alleged infringements of section 12, yet the Labour court concluded that

” the respondent did not provide the Court with records of the breaks taken by the appellant during the cognisable period “.

The court found the that the” respondent breached the Act at section 12 in the cognisable period”

Based on the evidence, the absence of statutorily compliant records and for the reasons cited above, I find the complaint to be well -founded.

CA 16092-002

This is a complaint that the complainant was not paid her correct holiday pay. The complainant states that she is owed €250 based on the failure of the respondent to calculate her holiday pay as an average of her salary over the previous 13 weeks The salary slips for the relevant weeks indicate that she was paid for hours worked at the agreed rate of €14.25 an hour.

The relevant provisions to be applied to this complaint are section 20(4) of the 1997 Act as developed and defined in S.1.475/1997. The amount of holiday pay owed to the complainant is as set out in Regulation 3(2) of the statutory instrument as follows “The sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences”

The complainant’s salary is based on an hourly rate. That being the case, Regulation 3(2) cited above applies.

In the circumstances pertaining to this complaint, the statute does not support the proposition that her salary should be based on an average of the previous 13 weeks.

Based on the evidence submitted, I do not find this complaint to be well -founded.

CA-00016092—001

I uphold this complaint. I determine that the respondent should make a payment of €750 to the complainant as compensation for a breach of section 12 of the Act of 1997.

CA-00016092—002

I do not find this complaint to be well founded.

Section 12; breaks; dispute about provision of breaks; lack of records. Calculation of holiday pay.