Complainant

Respondent

Anonymised Parties

Florist

Flower Shop

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00021112-002

13/08/2018

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

CA-00021112-003

13/08/2018

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

CA-00021112-004

13/08/2018

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

CA-00021112-005

13/08/2018

The Complainant has been employed by the Respondent from 1st February 2012. She is paid €450.00 gross per week. The Complainant referred complaints to the Workplace Relations Commission on 13th August 2018 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 – had breached the National Minimum Wage Act, 2000 and had breached the Organisation of Working Time Act, 1997.

Terms of Employment (Information) Act, 1994. The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment.

National Minimum Wage Act, 2000. The Complainant confirmed to the Hearing that she had submitted a request under Section 23 of the Act on the Respondent on 17th August 2018, which is post the serving of the Complaint on 13th August 2018.

Organisation of Working Time Act, 1997. The Complainant stated that she was one of three people working in the shop. Weekly Working Hours in the reference period from 14/2/2018 to 27/5/2018. The Complainant stated that she works 7 days a week as follows – Mon and Tue -8am to 7pm =Wed and Fri- 7am to 7pm as she opens the shop – Thur, Sat and Sun she works from 8am to 7pm.

Breaks at Work. The Complainant stated that she is not provided with breaks as required by the Act. The Complainant’s Legal Representative referenced the Decision of the Labour Court in Determination NO. DWT 1820 in relation to the obligation on the Respondent to keep records.

Terms of Employment (Information) Act, 1994. The Respondent confirmed that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment but argued that the complaint had been submitted outside the Time Limits of Section 41(6) of the Act

National Minimum Wage Act, 2000. The Respondent confirmed that a Section 23 request had not been served on the Respondent prior to the lodging of the Complaint.

Organisation of Working Time Act, 1997. The Complainant is employed as a Florist but has not attended work since 27th May 2018.

Weekly Working Hours. The Respondent stated that the shop opens at 9am and closes at 6pm Monday to Saturday and opens 11am to 5pm on a Sunday. The Complainant has not provided any evidence to establish a prima facie case that she worked in excess of 48 hours a week. Yes there were occasions when she was requested to work additional hours like Christmas, Valentines Day and Mothers Day. Any extra time worked was offset against additional time off. The Complainant worked on average below 48 hours a week. The Respondent stated that in the four months from 11th December 2017 to 1st April 2018 she worked a total of 649.16 hours giving an average of 40.6 hours per week. The Respondent provided a spreadsheet to the Hearing of hours worked each day.

Breaks at Work. The agreement was that the Complainant took breaks when the shop was not busy and she took them as often as she wished. In addition the Respondent provided food each day at 9am, coffee and toast provided – 11am, 15 minute break – 1pm when lunch was provided and again in the afternoon. Chairs were also provided so that the Complainant could sit and relax during her many breaks. There was a fridge which was always well stocked with food.

The Respondent stated that all the spreadsheets were compiled from the work diary – this was not provided to the Hearing.

Terms of Employment (Information) Act, 1994. Both Parties confirmed at the Hearing that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment as required by Section 3 of the Act. The Respondent argued at the Hearing that the complaint was statute barred as it did not comply with Section 41(6) of the Workplace Relations Act, 2015 which provides that a complaint must be submitted within the period of six months of the contravention of the Act.

I find the Respondent has breached Section 3 of the Act of 1994.

National Minimum Wage Act, 2000. Section 14 of the Act requires an employee to serve a Section 23 notice on the Respondent prior to lodging a complaint within the WRC. Both Parties confirmed that the Section 23 notice was served on the Respondent on 17th August 2018 while the Complaint was lodged with the WRC on 13th August 2018. I find I therefore do not have jurisdiction to hear this complaint.

Organisation of Working Time Act, 1997 – 2015.

Section 15. This section provides that (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say, an average of 48 hours calculated over a period that does not exceed – (a) 4 months.”.

The Respondent’s spreadsheet was disputed as follows

18/2/2018 – Respondent says Off Complainant says she was at work from 8am and sent a text at 8.24 am from work to say she was under pressure and this was acknowledged.

19/2/2018 Respondent says Off. Complainant says she was at work and text message confirms this.

20/2/2018 Respondent says Off. Complainant says she was at work and text message confirms this

4/3/2018 Respondent says Off. Complainant says at work from 12 noon and texts confirm this.

9/3/2018. Respondent says at work from 7am. Text from Complainant at 7.10 am confirms this.

14/3/2018 Respondent says Off. Complainant says not off but this text provided by the Complainant does not confirm this as there was a text sent by the Complainant on 13th March.

23/3/2018 Respondent says worked from 7am to 3pm. Complainant disputes this but this not supported by text from the Complainant.

26/3/2018 Respondent says Off. Complainant says she was working and a text message confirms this.

14/4/2018 Respondent Off. Complainant verifies this.

21/4/2018. Respondent says commenced at 9am. Complainant says she commenced at 7am and a text verifies this.

23/4/2018. Respondent says Off. Complainant says she was at work and a text confirms this.

I note the Respondent’s Response at the Hearing that Texts are not evidence. But then neither are spreadsheets taken from a diary in the shop which is not produced at the Hearing.

Section 25(4) of the Act places the burden of proof on the Employer in proceedings before an Adjudication Officer. I find that the Respondent has not met the burden of proof in relation to records of weekly hours worked by the Complainant in the 4 month period from December 2017 to April 2018. They did provide a disputed spreadsheet but did not provide the shop diary from which the spreadsheet was derived.

Likewise I also find that the evidence presented to the Hearing by the Complainant was vague and the Complainant sought to rely on disputing the Respondent’s evidence.

Section 12 of the Act – Rest and Intervals at Work. This Section provides that an employee is entitled to a break of 15 minutes after working 4 hours and 30 minutes and a break of 30 minutes after working more that 6 hours (this break may include the break of 15 minutes after working 4 hours and 15 minutes). Both parties confirmed at the Hearing that the business of the Respondent was a Florist Shop. Both Parties also confirmed that the Complainant did take regular breaks when the customer flow allowed. Both Parties also confirmed that the Respondent did provide food to eat each day and that this was freely available in the fridge in the shop. I find there was no breach of this Section of the Act as the Complainant confirmed at the Hearing when questioned by the Adjudication Officer that she did take breaks at work to avail of food supplied by the Respondent and that these breaks were taken with due regard to the flow of customers through the shop.

Terms of Employment (Information) Act, 1994. CA-00021112-005

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €500 within 42 days of the date of this Decision. I also direct the Respondent to issue the Complainant with a written statement of her Terms and Conditions of Employment as the Complainant is still in the employment of the Respondent. This to be issued within 42 days of the date of this Decision

National Minimum Wage Act, 2000. CA-00021112-002

I declare I do not have jurisdiction to hear this complaint as the Complainant did not serve a Section 23 notice on the Respondent prior to lodging her complaint with the WRC on 13th August 2018.

Organisation of Working Time Act, 1997 – 2015.

CA-00021112-003. On the basis of the evidence presented to me by both Parties at the Hearing, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €500.00 within 42 days of the date of this Decision.

CA-00021112-004. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded as the Respondent failed to provide any records of actual breaks taken. I direct the Respondent to pay the Complainant compensation of €250.00 within 42 days of the date of this Decision.

Terms of Employment (Information) Act, 1994 – No terms and conditions provided, Contract to be issued and compensation of 500.00

National Minimum Wage Act, 2000. Complainant did not serve a Section 23 notice on the Respondent prior to lodging a complaint with the WRC.

Organisation of Working Time Act – Breaches of Sections 12 and 15 – complaints well founded.