Complainant

Respondent

Anonymised Parties

Shop Assistant

Retail Trade

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-00022538-001

10/10/2018

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

CA-00022538-003

10/10/2018

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

CA-00022538-004

10/10/2018

The Complainant was employed from 20th October 2017 until the employment terminated on 16th September 2018. The Complainant was paid €9.55 an hour and she worked varied hours each week. The Complainant referred complaints to the Workplace Relations Commission on 10th October 2018 alleging the Respondent had breached the Organisation of Working Time Act, 1997 – 2015 in relation to Breaks while at work, Sunday Premium and Public Holidays. The Complainant was not provided with a written statement of her Terms and Conditions of Employment.

Section 12 – Breaks at Work. The Complainant referred to Section 12 of the Act and to S.I. 57/1998 in relation to breaks at work for Shop Employees. The Complainant presented evidence of hours worked to the Hearing covering the reference period of this complaint i.e. from 11th April 2018 to 16th September 2018 when the employment terminated. The Complainant stated that she never got breaks while working. She is claiming that she worked a total of 3300 hours and is claiming payment of 55 hours of breaks not given.

Section 21 – Public Holidays. The Complainant referenced Section 21 of the Act and S.I. 475/1997 in support of their argument that the Complainant is entitled to the following Public Holidays in the reference period i.e. May Public Holiday on 7th May 2018 (not worked) – June Public Holiday on 4th June 2018 (not worked )and the August Public Holiday on 6th August 2018 (worked 6 hours). She is claiming payment of €230.576.

Section 14 – Sunday Premium. The Complainant stated that when she was required to work on Sundays she was not paid a Sunday Premium. The Complainant provided details of Sundays worked in the reference period and the hours worked on each of these Sundays. She worked a total of 13 Sundays in the reference period and she is claiming payment of €356.53. She also quoted Labour Court Decisions to support their argument that the Complainant was entitled to payment of time plus one-third for each hour worked.

The Respondent did not attend the scheduled Hearing on 23rd January 2019.

On the basis of the evidence from the Complainant I find as follows –

Section 12 - S.I. 57/1998 – Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998 provides at Section 3 as follows – “In relation to the following class of employees, namely, an employee – (a) who is a shop employee, and (b) whose hours of work as such an employee include the hours from 11.30 am to 2.30pm, the minimum duration of the break to be allowed by the employer under Section 12(2) of the Act to him or her shall be one hour and that break shall, unless its commencement between those hours would result in section 12(4) of the Act not being complied with, commence between the hours aforesaid”. The evidence presented to the Hearing by the Complainant shows in detail the hours worked each day in the reference period. The Complainant stated she had never been provided with breaks by the Respondent while at work.

On the uncontested evidence of the Complainant and the evidence presented I find the Respondent has breached Section 12 of the Act.

Section 21 –This Section provides that if an employee works on a Public Holiday they are entitled to either (a) a paid day off on that day (b) a paid day off within a month of that day (c) an additional day of annual leave or an additional day’s pay. S.I. 475/1997 – sets out the mechanism for calculating pay over a 13 week period prior to the Public Holiday concerned and provides that that it will be equal to the average pay of the employee over these 13 weeks prior to the Public Holiday. There were three Public Holidays in the reference period covered by this complaint i.e. 7th May 2018 – 4th June 2018 and 6th August 2018. The Complainant did not work on 7th May 2018 or 4th June 2018. I was provided with payslips for the entire reference period and these show that the Complainant was not paid for these two Public Holidays. The Complainant did work on the Public Holiday of 6th August 2018 and she was paid her wages but the evidence from the payslips provided show the Complainant was not provided with an extra days pay – an additional days annual leave or a day off within a month. The employment terminated on 16th September 2018. The evidence from the payslips do not show the Complainant was compensated by the Respondent for working on 6th August 2018.

On the uncontested evidence of the Complainant and the evidence provided at the Hearing I find the Respondent has breached Section 21 of the Act.

Section 14 – Sunday Premium. This Section of the Act provides that where an employee is required to work on a Sunday and if there is no reference to this in the Contract of Employment provided to the Employee then the Employee must be compensated by the Employer by either – payment of an allowance – by increasing the employee’s rate of pay – by granting time off or by a combination of these. The evidence from the Complainant was that she was required to work on 11 Sundays in the reference period. Sundays worked were 22/4/2018 (10 hours) - 6/5/2018 (10 hours) -3/6/2018 (10 hours) – 10/6/2018 (10 hours) – 1/7/2018 (7 hours) – 8/7/2018 (10 hours) – 22/7/2018 (10 hours) – 12/8/2018 (10 hours) -19/8/2018 (6 hours) – 26/8/2018 (10 hours) 2/9/23018 (5 hours). There was no evidence the Complainant had been compensated by the Respondent for working these 11 Sundays having examined the payslips provided to the Hearing.

On the uncontested evidence of the Complainant and on the basis of the evidence presented I find the Respondent has breached Section 14 of the Act.

On the basis of the evidence presented at the Hearing and on the uncontested evidence of the Complainant I declare the complaints concerning a breach of Sections 12 – 14 and 21 of the Organisation of Working Time Act, 1997 are well founded.

Section 12 – CA-00022538-001. 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 €800.00 within 42 days of the date of this Decision.

Section 21 – CA-00022538-003. 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 €800.00 within 42 days of the date of this Decision.

Section 14 – CA-00022538-004. 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 €1000.00 within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997 – complaints concerning breach of Sections 12 – 14 and 21 of the Act. Well founded – Compensation awarded.