Complainant

Respondent

Anonymised Parties

Manager of betting shop

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-00016091-001

30/11/2017

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

CA-00016091-002

30/11/2017

CA-00016091-001

The Complainant, is employed as a manager in one of the respondent’s betting outlets since 2004. She works 40 hours a week over 7 days and is paid €17.12 per hour.

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.

CA-00016091-002.

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.

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

CA-00016091-001

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 and that 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 breaks in accordance with section 12 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’s representative 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 clocking in facilities nor 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 exercising her role as manager of the shop. 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 or counter while continuing to work and be at the disposal of the respondent fulfilling the obligations of her role.

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 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, that records are maintained in compliance with the 1997 Act and to demonstrate that this has happened. This did not happen in this case.

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

CA-00016091-002.

Complainant states she was not afforded her correct paid annual leave entitlements for weeks ending

6/7/17,

12/10/17

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 identified 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 on an average of her previous thirteen weeks’ salary. Her average salary based on her earnings for the 13 weeks prior to 6/7/17 was €1958. She received €1370 in holiday pay. The difference owed to her is €588. Her average salary based on her earnings for the 13 weeks prior to 12/10/17 was €945. She received €685 in holiday pay. The difference is €260. Mandate argue that the complainant is entitled to the loss incurred over these two weeks- the total sum being €848.

Mandate request the adjudicator to uphold the complaint.

CA-00016091-001

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. Staff work out a roster for breaks in most outlets. The respondent asserts that as a manager, the complainant would have drawn up rosters for her shop and had the authority to take breaks at a time of her choosing and 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 states that the complainant never activated the grievance procedure nor raised the matter in the Employee Forum which offers employees the opportunity to raise and resolve their 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. This system records the complainant’s activity at the till and when absent from the till,the simultaneous presence of another employee at the till. The respondent submitted an analysis of the data contained in the EPOS document stating that over a four-month period 1/9/17-31/12/17, the complainant had the opportunity to take 78 breaks lasting at least 20 minutes; 35 of these lasted between 20-30 minutes;22 of these lasted between 30-60 minutes and 21 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. They add that they 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. 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 the complainant choses her own break own times, her breaks are uninterrupted and she is free to use the break periods as she wishes.

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

The complaint should not be upheld

CA-00016091-002

The respondent maintains that he complied with his statutory obligations as 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). The Regulations. 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) based on the respondent’s compliance with Regulation 3(2) as cited above.

CA-00016091-001

The Law.

I am required to examine the evidence supporting the complaint 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).

(3) The Minister may by regulations provide, as respects a specified class of employees, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes.

(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 is that she often had to be at the disposal of the employer, attending to customers, or other tasks during her 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 which is 1 June – 30 November 2017. The EPOS document which the respondent asks us to consider 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 complainant is a manager and the proposition that’ off-till ‘activity, with the till being attended to by another employee, is evidence of having secured an uninterrupted break as opposed to exercising her managerial or other functions is unconvincing.

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

Cognisable period.

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

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 to the instant case is questionable.

The complainant is a manager

The respondent asked that the decision should recognise that it is easier for a manager to take breaks. The fact of being a manager did not spare the employer from or shift responsibility to the manager for compliance with the Act in the case of Gina’s Italian Ice- Cream Ltd and Ewelina Gacek, DWT 1627.In addition, this determination dealt with a complainant who did not provide details or dates of the alleged infringements of section 12, yet the Labour Court determined that the respondent

“did not provide the court with records of the breaks taken by the appellant during the cognisable period. The Court finds that the respondent breached the Act at section 12”.

Evidence of compliance with section 25 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 the absence of records and the evidence submitted fail to demonstrate compliance with the Act.

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).

Based on the evidence tendered, the absence of records and for the reasons cited above I find the complaint is well founded.

CA-00016091-002

The Law.

The relevant provisions to be applied to this complaint are section 20(4) of the 1997 Act as developed and defined in Organisation of Working Time (Determination of Pay for Holiday) Regulations 1997 (S.I no 475 of 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 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 complainant’s salary slip for the week before her leave was not submitted. No evidence apart from submitting the difference between what she believes she is owed and what she actually received was presented to substantiate the claim for a payment of €588 (alleged loss incurred by complainant) for the week of her annual leave commencing 6/7/18.

Regarding the salary for the week of annual leave commencing 12/10/17, the salary slip for the previous week was not submitted. Eleven pay slips for non- consecutive dates were submitted. Overtime sums -not permissible in accordance with section3(2) above- were included.

There is no evidence to support the proposition that her salary should be based on an average of the previous 13 weeks or to support the claim for a payment of €260 in respect of the week commencing 12/10/17.

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

CA-00016091-001.

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-00016091-002.

I do not uphold this complaint.

Section 12; breaks; dispute about provision of breaks; lack of records.

Calculation of pay during annual leave.