Complainant

Respondent

Anonymised Parties

Catering Assistant

Nursing Home

Representatives

JohnO' KeeffeJohn O' Keeffe & Co.

David GaffneyGaffney 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-00027264-001

25/03/2019

The Complainant works as a Catering Assistant and earns €13/hr for a 38 hour week.  The Complainant has submitted a complaint to the WRC alleging that the respondent has breached the provisions of Section 12 of the Organisation of Working Time Act in relation to her entitlement to statutory rest breaks.

The Complainant was employed on 1^st April 2016 as a Catering Assistant and works 3 ½ days a week. The Complainant has to work up to 30 minutes before her shift begins in order to have breakfast ready for 40 residents. The Complainant has no scheduled breaks in the course of the day.  The Complainant is doing extra work of carers for approximately 2 years until this changed 2 weeks ago.  The complainant will not have breakfast ready if they have to start at 7am instead of 7.30am.  The next break taken is 15 minutes at approximately 11.30/11.40 am approx.  The Complainant’s role has changed during her employment and workload has increased. Depending on when the trolley’s finish would not take next break until 1.30/1.40 pm approximately.  The complainant is then required to be back for 1.50 pm in order to have teas ready for 2pm.  The complainant has no issues with helping out.  The complainant confirms other carers and housekeeper get set breaks.  She has requested set time so she can take her breaks but this has not been done and she can’t take her breaks due to work pressure.

The complainant confirmed she was happy to help out but feels its an ongoing issue and feels that by being obliging you gain more work.  The Complainant has received the Grievance Procedure and Handbook.  The complainant reports to the Chef, the person in charge and ultimately Registered Provider. The complainant raised the issue with the Director of Nursing and the Nursing Manager and mentioned to the Chef over 18 months ago.  The complainant was told they would come back to them.  The complainant completes a sheet for their hours for payment. At the end of the page there is a line stating “hereby I confirm that I had all breaks and rest periods in line with my Statutory Entitlements for the above month”.  The complainant advised the Director of Nursing they would not be signing the document and was told if it was not signed they would not be paid. This was also confirmed by the Acting Director of Nursing.  The complainant felt they were falsifying the sheet by saying they had no choice but to sign it or they wouldn’t be paid.  The complainant felt they could not make a complaint as it would be to the same person who told them to sign the document. 

The Solicitor for the employee wrote to the Respondent on 9^th November 2018 stating the employee did not have a copy of the grievance procedure and requested same at that time.  The letter also outlined her issues ref: breaks.  The respondent did not reply to the Solicitor’s letter.

There was a change in the Complainants responsibilities in the last 2 weeks per the employees evidence.  The Registered provider asked the employee to help the kitchen assistants more and confirmed the employee could have taken breaks whenever they wanted.   Since November on receipt of the letter they did not address the employees concerns in relation to getting breaks.

The Registered Provider (employer) confirmed the employee arrives at 7am but her colleagues arrive at 7.15/7.20 am.  They are neither required for be in before the rostered time of 7.30 am.  The employer confirmed there was time to take their full breaks during the day.   The Registered provider was unaware the Complainant was being forced to sign the payroll sheets nor did she hear this from anybody else.  When the employee was sick the Registered Provider covered for the day.  She confirmed all the work was completed.

The Registered Provider stated the employee fraudulently signed off to say she received her breaks on the roster sheets if now she is saying she didn’t get them.

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).

The issue at the heart of this referral is whether the Complainant received the breaks to which they are entitled under Section 12 of the Act. The Complainant alleges that she did not receive such breaks due to work pressures and could only take them on occasion and made this clear to her employer who did nothing to resolve the matter.

To demonstrate that they did get their breaks, Section 25(1) of the Act requires 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.”

Regulation 5 states the following regarding record keeping obligations:

(1) For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks—

(a) employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities, and

(b) employers who have manual as opposed to electronic record-keeping facilities and who are required to keep records in accordance with Regulation 4.

(2) The exemption under paragraph (1) shall only apply to an employer if he or she complies with the following conditions—

(a) the employer notifies in writing each employee of the rest periods and breaks referred to in sections 11, 12 and 13 or, in case of the non-application of one or more of those sections (by virtue of regulations referred to in section 4(3), a collective agreement or a registered employment agreement referred to in section 4(5), or an employment regulation order referred to in section 4(6)) of the terms of such regulations, collective agreement, registered employment agreement or employment regulation order and, in particular, of the requirement contained in section 6(1),

(b) the employer puts in place, and notifies in writing each employee of procedures whereby an employee may notify in writing the employer of any rest period or break referred to in sections 11, 12 and 13 of the Act to which such employee is entitled and was not able to avail himself or herself of on a particular occasion and the reason for not availing of such rest period or break,

and

(c) the employer keeps—

(i) a record of having notified each employee of the matters provided for in paragraph (a),

(ii) a record of having notified each employee of the procedures provided for in paragraph (b), and

(iii) records of all notifications made to him or her by each employee in accordance with those procedures.

(3) A notification made to an employer by an employee under paragraph 2(b) shall be made within 1 week of the day on which the rest period referred to in that paragraph became due to, but was not availed of by, the employee. Where such notification is duly made the employer, having regard to the circumstances pertaining to the work of the employee and to the employee's health and safety interests, shall, as soon as possible, make available to the employee such rest period or break as is equivalent to the rest period or break which had been due to, but had not been availed of by, the employee. Failure by an employee to avail of such equivalent rest period or break offered by an employer shall not constitute a breach on the part of the employer under the Act or these Regulations. It is not appropriate for the employer to put the onus on the employee to take her breaks when in this case the employer was on notice that the employee could not take her breaks due to work pressures and asked for set break times to be allocated to her; this did not occur nor did the employer engage with her to resolve her concerns to ensure she was able to take her breaks; therefore the employer have not met their obligations of the act. The fact the employee signed a document to ensure she got paid in no way means she completed it fraudulently and does not meet requirements of act as she did not get her break entitlements.  The employer has an obligation to put proper procedures in place to ensure she received her breaks.  This did not occur.  Nor does the employer have appropriate records under Section 25(i) to show the timings and duration of the employees breaks unless they were at regular set times.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Act. The employer has no documentation to show she got her break entitlement and her evidence was convincing.  Therefore, I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €2,000 and recommend her breaks are allocated set times going forward to ensure her break entitlements are met in line with the ERS legal obligations.