Complainant

Respondent

Anonymised Parties

Retail betting Assistant

Bookmaker

Representatives

Mandate Trade Union

Arthur Cox Solicitors

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-00016090-001

30/11/2017

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

CA-00016090-002

30/11/2017

CA-00016090-001

The complainant commenced employment with the respondent as a retail betting assistant in February 2013 on a full-time basis working 40 hours per week over a 7-day period. His weekly salary was €402.

The complainant states that he has not received his statutory rest breaks contrary to section throughout the course of his 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.

CA-00016090-002.

The complainant’s representative submits that the calculation of the complainant’s annual leave salary does not comply with section 20(2)(b) of the 1997 Act.

He submitted these two complaints to the WRC on the 30/11/17.

CA -00016090-001.

The complainant’s representative cites section 12 of the 1997 Act setting out the complainant’s entitlement to rest breaks, breaks which were not provided to him and that the respondent is on notice of same. The complainant’s trade union 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 2015 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. He states that the respondent failed to put in place measures which would secure his breaks. This fact is disputed. As this matter of whether the claimant did or did not get his 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 S.I.No.473/2001, 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) provides that:

“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 clocking in facilities nor documentation to prove that the complainants have taken their rest breaks. Lacking such evidence, the respondent is unable to refute the complainant’s assertion.

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. 17, distinguish the facts in that case from the instant case. They state that there are no periods of inactivity for the complainant; he is constantly engaging with customers.

The onus lies with the respondent to ensure that the complainant gets his 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 refutes the respondent’s assertion that the EPOS system is one measurement or reflection of the complainant’s work. It does not measure ‘off-till’ activity when he is engaging with customers or is dealing with other aspects of his 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 the counter while continuing to work and be at the disposal of customers and the respondent.

The respondent had failed to meet his obligations under section 12 of the 1997 Act.

CA-00016090-002

Complainant states he was not afforded his correct paid annual leave entitlements for weeks ending

29/6/17,

31/8/17

The complainant’s representative points to section 20 (2)(b) of the 1997 Act which prescribes that the calculation of pay for leave purposes will

“Be at the normal weekly rate, or as the case may be, at a rate which is proportionate to the normal weekly rate”. “Normal weekly rate” is clarified in section 20(4) as the” normal weekly rate of the employee concerned determined in accordance with regulations made by the Minister for the purposes of this section.”  The complainant’s representative maintains that the holiday pay should be based an average of the previous thirteen weeks. His average was €450.91 ; he was paid €402.29 The complainant’s loss is identified as €65.63.

Mandate request that his complaint be upheld.

CA-00016090-001

The respondent refutes the complainants’ c complaint and states that he 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. Staff work out a roster for breaks in most outlets. 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. This system records the complainant’s activity at the till. The respondents submitted a document stating that over a four-month period 1/9/17-31/12/17, the complainant received 42 breaks; 14 0f these lasted between 20-30 minutes, 15 lasted 30-60 minutes and 13 lasted more than an 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 determined 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 measures identified by the respondent to ensure that staff get their breaks is their employment of additional staff as necessary. They also provide canteen facilities.

The respondent relied on the High Court judgement of Mr. Justice Kearns in Stasaitas v Noonan Services Group Ltd. (2014) E.L.R. 17. 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 t 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 the complainant’s breaks were uninterrupted and he could use the break periods as he wished.

CA 16090-002.

Therespondent maintains that he complied with his statutory obligations as set out in section 20 of the 1997 Act. The complainant was paid for hours worked.

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 “, then the normal weekly rate is defined as

“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 requests the adjudicator to accept that there was no infringement of section 20 (2) (b).

CA-00016090-001

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 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 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” “(see dicta to that effect of Peter Gibson LJ in Gallagher v Alpha Catering services t/a Alpha Flight Services [2005] I.R.L.R.102).”

The evidence submitted on behalf of the complainant is that he often had to be at the disposal of the employer, attending to customers, during his break. This could not be seen to constitute an uninterrupted break. The evidence does not demonstrate that the complainant enjoyed uninterrupted breaks in line with section 12 of the Act for the cognisable period 1 June – 31 November 2017. The EPOS document which the respondent asks us to consider as evidence that he 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 other functions is unconvincing. This is apart altogether from the EPOS document demonstrating a shortfall in the breaks which he should have enjoyed. Over a four month period it demonstrates 42 periods of till inactivity, 14 of which lasted 20-30 minutes, 15 lasted for 30-60 minutes and 13 lasted more than 1 hour.

The existence of canteen facilities is not evidence that the complainant enjoyed uninterrupted breaks.

Requirement to specify break periods.

Stasaitas v Noonan Services Group Ltd. (2014) E.L.R. 173 was cited as authority for the argument 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 in the instant case is questionable.

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

“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 section 25(1). Specifically the respondent did not comply with Regulation 5(2) (a), (b), (c).

I find the complaint to be well founded.

CA 16090-002.

The relevant provisions to be applied to this complaint are section 20(4) of the 1997 Act as 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) “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 slips for week ending 29 June and week ending 31 August indicate the complainant was paid the correct rate of pay for the hours worked.

The complainant’s salary is based on an hourly rate. That being the case, Regulation 3(2) kicks in- specifically the” sum………………. that is paid in respect of the normal working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences.”

The statutory provisions do not support the contention that the salary should be based on an average of the previous 13 weeks.

I do not find this complaint to be well -founded.

CA-00016090-001

I I uphold this complaint. I determine that the respondent should make a payment of €1000 to the complainant as compensation for a breach of section 12 of the Act of 1997.

CA 00016090-002

I do not uphold this complaint.

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