FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PATRICK POWER T/A THE TRADING POST (REPRESENTED BY O'DOHERTY WARREN, SOLICITORS) - AND - BREEDA LYNCH (REPRESENTED BY JACOB AND TWOMEY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No ADJ-00015845.
BACKGROUND:
2. The Claimant appealed theDecisionof theAdjudication Officerto the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on 28th February, 2019. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ms Breeda Lynchagainst the Decision of an Adjudication Officer ADJ-00015845, CA-00020510-005 under the Organisation of Working Time Act 1997 (“the Act”). The Adjudication Officer held that her claim against her former Employer, Patrick Power t/a The Trading Post,was not well-founded.
In this Determination the parties are referred to as they were at first instance. Hence Ms Breeda Lynchis referred to as “the Complainant” and Patrick Power t/a The Trading Post is referred to as “the Respondent”.
The Complainant alleged that the Respondent was in breach of Section 12 of the Act as she did not receive her entitlement to statutory meal breaks. The complaint was referred to the Workplace Relations Commission on 12thJuly 2018. The reference period for the purpose of this claim under the Act, therefore, runs from 13thJanuary to 2ndFebruary 2018 when the Complainant’s employment ended.
Background
The Complainant was employed by the Respondent from 31st July 2017 until 2nd February 2018. She was initially employed as a Café Worker and subsequently took over the duties previously carried out by a Chef who left the business in August 2017. Her working hours were initially from 9.00am to 5.30pm, Monday to Friday, in January 2018 her stating time changed to 8.30am.
The Respondent runs a service station with a shop, a camping and caravan park and a café.
Summary of the Complainant’s Case
The Complainant was represented by Mr Adrian Twomey, Solicitor, Jacob & Twomey, Solicitors, who claimed that the Respondent was in breach of Section 12 of the Act as the Respondent had failed to provide her with meal breaks. He said that after the Chef left in August 2017, the Complainant was working on her own in the Café and was not afforded the requisite breaks on most days. He stated that the onus was on the Respondent to ensure that the Complainant received her breaks and stated that it had failed to do so and had failed to keep records of breaks.
Summary of the Respondent’s Position
Mr Brendan Curran, Solicitor, O’Doherty Warren, Solicitors, on behalf of the Respondent, stated that the Complainant was observed availing of numerous smoke breaks throughout the day and that this was not disputed by her.
In any event Mr Curran submitted that as the Café was exceptionally quiet there was always an opportunity for her to take her breaks. The Respondent accepted that he did not have records of breaks taken but Mr Curran stated that it had since introduced a system to record all employees’ breaks.
Due to the low level of turnover, the Café was not a viable enterprise and closed in February 2018.
Witness Evidence
The Complainant gave evidence that while she had a number of smoke breaks each day, she had not received any scheduled breaks and said that on a number of occasions when she was having a smoke break she was on her telephone ordering supplies for the Café.
Ms Marie Hall gave evidence on behalf of the Respondent. She said that she had worked in the shop for eight years. She was rostered to work on Wednesdays and Saturdays from 8am until 2pm/3pm. She said that she regularly saw the Complainant taking a smoking break. She said that this happened between six and eight times per day. She said that she often attended to a customer when the Complainant was away from the Café for a short while.
Ms Hall told the Court that the Respondent had recently introduced a Staff Book which now records all starting and finishing times and records breaks taken by each employee.
Ms Nuala Ryan gave evidence on behalf of the Respondent. She said that she had worked in the shop for eleven years. She was rostered to work on Mondays, Tuesdays, Wednesdays and Fridays from 2pm until 8pm and on Thursdays from 8am to 2pm. She said that she regularly saw the Complainant taking a smoking break. She said that this happened about twice per day.
The witness said that she availed of a meal break each day and that the Respondent was often in the shop and would ask her if she had taken a break. She said that he would relieve her to allow her to take a break. Ms Ryan said that breaks are now recorded in the Staff Book.
Burden of Proof
Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Section 25(4) provides as follows: -
(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act 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.
Having considered the matter, the Court is satisfied that the evidence is sufficient to show that the Complainant had met the standard of proving that she did not receive breaks as provided for under Section 12 of the Act. Therefore, the Respondent carries the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant. As the Respondent was not in a position to produce records in the prescribed form to show compliance with Section 12, the Court finds that the Complainant’s claim succeeds.
Determination
For all of the reasons set out herein the Court finds that the Respondent contravened Section 12 of the Act in relation to the Complainant in the six-month period prior to the date on which her complaint was referred under the Act. The Complainant’s appeal is therefore allowed.
The Court is satisfied the appropriate redress is an award of compensation. The Court measures the amount of compensation which is just and equitable in all the circumstances at €250.00 and orders the Respondent to pay the Complainant that amount within six weeks of the date of this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th March 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.