ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023632

Parties:

	Complainant	Respondent
Anonymised Parties	Sous Chef	Restaurant

Representatives

Represented by the company

Complaints:

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-00030212-001	13/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00030212-002	13/08/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00030212-003	13/08/2019

Date of Adjudication Hearing: 15/10/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a Sous Chef from 8th May 2019 to 8th August 2019. He was paid €670.00 per week. He has claimed that he did not get a contract of employment in time and he did not get proper breaks and rest periods.

1)Terms of Employment (Information) Act CA 30212-003

Summary of Complainant’s Case:

The Complainant stated that he did not receive the written contract of employment in time, not within the month of starting.

Summary of Respondent’s Case:

The Respondent stated that the Complainant was due to commence employment on 10th May 2019. On 1st May 2019 he was issued with a letter of offer containing the five core terms of employment which is now a legal requirement. He was then scheduled to attend an induction course on 14th May 2019, he failed to attend and he was rescheduled for 4th June 2019. He was taken through his contract of employment and staff handbook; he personally signed for them, details provided.

Findings and Conclusions:

I find that the Respondent issued the five core details of contract before the employment commenced.

I find that the Complainant signed for the complete contract of employment and staff handbook on 4th June 2019.

Sec 3 (1) of this Act states “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

I find that the Respondent complied with Sec 3(1).

I find that this complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has complied with Sec 3 (1) of this Act.

I have decided that this complaint is not well founded and so it fails.

2)Organisation of Working Time Act CA 30212-001/2

Summary of Complainant’s Case:

CA 30212-001

The Complainant stated that he worked 15 hours most Saturdays and did not receive breaks.

CA 30212-002

He stated that he did not get the 11-hour break between finishing a shift and starting the next one.

Summary of Respondent’s Case:

CA 30212- 001 Breaks

They stated that he worked a total of 12 weeks and worked on 10 Saturdays in that time. On 1st June he worked a total of 14 hours and 35 minutes. This was caused by another employee failing to show up. He was asked if he could work a double shift and he agreed. This was an emergency. There is a system for all employees to sign a break sheet. Employees do not clock in an are paid for breaks. The system was not perfect and they have since introduced a more robust one. Given the seniority of the Complainant there is a level of trust placed on him to ensure breaks sheets are signed and breaks taken. On examination, he was the only employee not signing up to 90 % of the time. He was emailed by management informing him of his entitlements to breaks under Sec 11, 12 and 13 of the Organisation of Working Time Act. The email also explained what they should do if they failed to get their breaks.

CA 30212-002 11-hour break

There was one incident in this employment where he did not get the 11-hour break between finishing and starting. This was referenced above where he agreed to work a double shift due to an emergency.

They referenced Sec 5 of the Organisation of Working Time Act, which states, “Without prejudice to Sec 6, an employee shall not be obliged to comply with section 11,12,13,16 or 17 where due to exceptional circumstances or an emergency the consequences of which could not have been avoided”.

This is rejected.

Findings and Conclusions:

CA 30212- 001 Breaks

I note that the Complainant was informed of his break entitlements.

I note that he was advised by email of his entitlement to breaks and the necessity to sign for breaks.

I note that the Respondent pays for breaks, which is not a legal requirement.

I note that despite being told in writing that it was compulsory to sign break sheets before taking breaks he did not do so. However, I must conclude that the Complainant has to accept responsibility in this matter also.

I find that the Complainant failed to adhere to the instruction to sign and take proper breaks and then accused his former employer of breaking the law.

I find that the ultimate responsibility rests with the Respondent to ensure that breaks are taken

I find that the Respondent has breached Sec 12 of this Act.

CA 30212-002

I find that there was one incident where the Complainant did not receive an 11-hour break between shift finishing and shift starting.

I find that the Respondent was faced with an exceptional circumstance with an unauthorised absence of another employee.

I note that the Complainant agreed to work the double shift.

I find that this was an emergency and it is provided for in Sec 5 of this Act, as cited above.

I find this part of the compliant not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA 30212- 001 Breaks

I have decided that the Respondent has breached Sec 12 of this Act.

I have decided that this part of the complaint is well founded.

I require the Respondent to pay the Complainant €100 (one hundred) euro in compensation for breach of his rights under Sec 12 of this Act. This is to be paid within six weeks of the date below.

CA 30212-002

I have decided that this part of the Complaint is not well founded and so it fails.

Dated: 9th December 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Breaks and rest periods