DWT1915

DETERMINATION:

This is an appeal by Vadim Capatina (the Complainant) against the Decision of an Adjudication Officer in relation to his complaints against his ex-employer, St Margaret’s Country Club Limited trading as St Margaret’s Golf and Country Club (the Respondent), pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act).
The Adjudication Officer held that the complaints were not well-founded.

Background

The Complainant was employed by the Respondent between 5th May 2015 and 18^thOctober 2017 when his employment terminated. The complaint relates to the failure of the Respondent to provide the Complainant with finish times on his roster and the failure to ensure he received the appropriate breaks.

Complainant’s case
It is the Complainant’s case that he was not provided with his breaks in accordance with Section 12 of the Act and that he was not provided with his finishing times as required by Section 17 of the Act. In relation to the breaks it was his submission that he did not set his own hours as alleged by the Respondent. The Complainant also submitted that on occasions when he did get a break staff would approach him with queries which he felt he was obliged to deal with.In relation to finishing times it was his submission that he was rostered from a given start time to finish with no indication as to what time that might be.

Respondent’s case
It is the Respondent’s submission that the Complainant got his breaks. The Respondent submitted that they had CCTV pictures of the Complainant eating his lunch in the restaurant most days. In relation to staff approaching him on his breaks they were not aware of this but if that did occur the Complainant could have taken additional time at the end of his break. The Respondent did accept that they had not kept a record of the Complainant’s breaks.
In relation to finishing times it was the Respondent’s submission that the Complainant was involved in the drawing up of the rosters. The nature of the work made it difficult to confirm finishing times and that there was a standing arrangement whereby in the winter months staff worked much shorter hours but were still paid their full pay. The Respondent accepted that on occasions the roster would not show a finish time.

The Law

Rests and intervals at work.

12.— (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 insubsection (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 undersubsection (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 insubsection (1)or(2).

Provision of information in relation to working time.

17.— (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject tosubsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

Records.

25.— (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.

(2)……

(3)……..

(4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (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.

Discussion

As set out in Section 25 (4) of the Act the where an employer fails to keep records in respect of his compliance with the Act the onus of proving compliance lies with the employer. In this case the Respondent was not able to prove compliance and therefore the appeal must succeed.

Determination
The Court determines that the appeal succeeds and that the Respondent should pay to the Complainant a sum of €600 in compensation. The Decision of the Adjudication Officer is set aside.
The Court so determines.



Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
12 July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.