Complainant

Respondent

Anonymised Parties

A Pharmacist

A Pharmacy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021914-001

18/09/2018

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

CA-00022138-001

25/09/2018

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

CA-00022138-002

25/09/2018

Note; this decision covers ADJ-00016887 and ADJ-00017065 which were listed as separate complaints but heard together and which are based on the same set of facts.

The complainant was employed as a pharmacist by the respondent between June 2016 and May 2018.

Her initial complaint (CA-00021914-001) under the Payment of Wages Act is a claim for payment of wages due as a result of not being able to take her lunch breaks.

She says that while her pay was based on the fact that she would not be paid for lunch breaks this was because she would not be expected to work during those lunch breaks.

In fact, she did work during the breaks and calculates that this accumulated to a total of four hundred and fifteen hours over eighty-three weeks; in money terms; €9,976.60

Her second complaint (CA-00022138-001) is grounded in the same set of facts and she claims this as a breach of the organisation of Working Time Act.

Her final complaint is that she did not receive the statutory required under the Terms of Employment Information Act.

The respondent disputes the first two complaints.

The complainant was paid an annual salary, and not an hourly rate as she claims, and she was assigned to three different pharmacies. In one of these there were always two pharmacists and so it was improbable that she never got a break. In another, where she might be assigned for two to three days per week there was a second pharmacist on one or two days per week.

In the third, where she would have been on her own, she was only assigned two days per week.

The respondent contests the claim that she never got a lunch break although it did not keep records of breaks taken.

The respondent accepts that it did not provide the statutory statement of her Terms of Employment.

The conflict in the evidence here was stark.

The complainant’s original position was that she ‘never’ got a break between October 24th, 2016 and May 27th, 2018.

At the hearing she then accepted that she might grab a few minutes to eat something or take some other refreshment.

The possibility that the complainant, a professional pharmacist, never, over the course of an eighty-three week period, got a break is so improbable as to be incredible.

At no stage in this lengthy period did she bring this rather extraordinary situation to the attention of her employers either.

The statement on her complaint form that this was because she had not been given the statement of her Terms of Employment is also entirely incredible; she was an articulate and confident witness at the hearing and showed no indication that she would be incapable of raising such a matter.

The complainant cannot seriously have believed that she was not entitled to any breaks during the working day or was awaiting production of her Terms of Employment to find out what they were, as she claimed on the complaint form.

Indeed, she went on to contradict this assertion elsewhere on the same complaint form by stating that she had been told she would get a one-hour break.

So, she knew what her entitlement was and this inconsistency in what she says happened and her failure to raise it seriously undermines the credibility of her case in respect of the alleged frequency of the breaches of the Act.

The respondent’s attempts to diminish the seriousness of the situation were no less incredible. It is insufficient in such situations for an employer to rely on expressions of indignation that such a situation could not have happened.

An employer is obliged to maintain records of hours worked, breaks etc and section 25(4) of the Organisation of Working Time Act 1997 places the burden of proof in respect of compliance with the Act on the employer. In this case, the employer clearly kept no records.

Neither, it would appear did it exercise any supervision over what was going on its business in this regard, although, as noted above the failure of the complainant to mention it at any stage is a mystery to say the least, and it would certainly have helped to remedy any shortcomings if she had identified them to her employer.

The first two complaints are incompatible. The provisions of the Organisation of Working Time Act are essentially concerned with the health and well-being of the employee.

The short title of the Organisation of Working Time Act makes reference to the transposition of Directive 93/104//EC of November 23rd, 1993 of the Council of the European Communities and states that it is;

‘in relation to the conditions of employment of employees and the protection of the health and safety of employees’

This is important. Employees may not be paid to forego annual leave, or other rest breaks and this is the reason why; it is a measure to protect their health.

Therefore, to grant a remedy for a breach of this central principle of the Act, by permitting remuneration to be paid for it would be a complete contradiction of its purpose. That purpose is to ensure that breaks are actually taken, and that worker gets the rest to which he or she is entitled.

I find for the complainant in that it seems that there were many, possibly a great many occasions on which she did not get the breaks to which she was entitled, or they were interrupted. I find that her claim that she never did so to be a gross exaggeration.

The evidence of both parties in the case left a great deal to be desired; in the case of the respondent due to its failure to maintain records, and in the case of the complainant her inconsistency, indifference to accuracy and a tendency to overstate her case diminished its credibility.

In making an award under the Act, an Adjudicator may award compensation of up to twenty-six weeks’ remuneration based on what is just an equitable in the circumstances. I have taken full account of all the circumstances in making my award below.

The complaint under the Terms of Employment (Information) Act, 1997 succeeds.

ADJ-00016887

For the reasons set out above I do not uphold complaint CA-00021914-001 and it is dismissed.

ADJ-00017075

I uphold Complaint CA-00022138-001 and award the complainant €5,000.00

I uphold Complaint CA-00022138-002 and award the complainant €1,000.00

Lunch breaks,