Complainant

Respondent

Anonymised Parties

Café Employee

Café

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023416-001

21/11/2018

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

CA-00023416-003

21/11/2018

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

CA-00023416-004

21/11/2018

The Complainant was employed to work in the Respondent’s café from 25th May 2018 to 10th August 2018 on an hourly rate of €10 for a 40 hour week.

The Complainant has submitted complaints under the Terms of Employment (Information) Act and the Organisation of Working Time Act in relation to his employment with the Respondent.

The Complainant submits that he never received a copy of his contract of employment although he asked for a copy on numerous occasions.

Prior to the hearing, the Respondent submitted a copy of the Complainant’s Terms and Conditions signed by the Complainant.

At the hearing, the Respondent asserted that the Complainant had been given a copy of his Terms and Conditions when he had signed it.

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“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 …”

Based on the totality of the evidence adduced, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €200 in respect of the contravention.

The Complainant submits that he did not take any holidays while he was working with the Respondent and that he did not receive payment for his outstanding annual leave when he left his employment with the Respondent.

The Complainant submits that he was owed payment for approximately 32 hours of annual leave.

The Respondent submits that the Complainant received payment for his outstanding annual leave and that this was recorded in his last pay slip which shows a payment for 39.88 hours of annual leave.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

“(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)     4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)     one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)      8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater”.

Before I decide on the merits of this claim, I wish to make an observation on the Complainant’s final payslip which shows a deduction of €223.50 under the heading “Advance”.

The Respondent maintained that the Complainant had been smoking in the toilet and had activated the smoke alarm which resulted in the call-out of an emergency service. The Respondent asserted that he incurred a cost of €223.50 in relation to the call-out and that he deducted that amount from the Complainant’s final week’s wages.

At the hearing, it was apparent that the Respondent had made this deduction without notifying the Complainant in advance.

The Complainant alleged that he did not receive payslips from the Respondent.

I am of the view that, in the absence of a payslip, the Complainant was unaware that he had received payment in respect of his outstanding annual leave because the deduction that the Respondent had made from his final payslip resulted in a lower than expected nett payment being lodged to his bank account.

For the avoidance of any misunderstanding, I must point out the legality or otherwise of a deduction from wages falls to be determined under the Payment of Wages Act 1991 and cannot be determined under the Organisation of Working Time Act, 1997. The matter of the deduction, therefore, is not properly before this adjudication hearing.

I will now turn my attention to the claim in respect of payment for outstanding annual leave.

Based on my analysis of the Complainant’s payslips as submitted by the Respondent, I find that the Complainant received appropriate payment for his outstanding annual leave on the cessation of his employment.

I find that this complaint is not well-founded.

The Complainant submits that he was never given a 30 minute rest break during the course of his employment with the Respondent.

The Complainant submits that he was given smoking breaks but that he had to ask for them.

The Respondent contends that the Complainant was given his daily rest breaks but that he used them as smoking breaks.

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks 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).

To demonstrate that employees get their breaks, Section 25(1) of the Act requires that employers keep records to show compliance with Section 12 as follows:

“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.”

I must first decide if smoking breaks of a short duration qualify as breaks under the Organisation of Working Time Act. In reaching my decision, I am guided by the findings of the UK Court of Appeal in Hughes v. Corps. of Commissionaires Management Ltd (No. 2)[2011] EWCA Civ 1061 CA where the Court found that a rest break:

“must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation...”

Accordingly, I find that short smoking breaks do not qualify as breaks for the purpose of the Organisation Act.

I must now decide whether the Complainant received the breaks to which he is entitled under Section 12 of the Act. The Complainant alleges that he did not receive such breaks.  

At the hearing, the Respondent conceded that they did not keep records of the breaks taken by their employees.

I find, therefore, that the Respondent did not keep appropriate records to show that the Complainant got the breaks to which he was entitled under Section 12 of the Act.

I find that this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €100.

Terms and Conditions, payment for Annual Leave, Rest Breaks