Complainant

Respondent

Anonymised Parties

A shop assistant

A shop owner

Representatives

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-00028823-001

04/06/2019

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

CA-00028823-002

04/06/2019

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

CA-00028823-003

04/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00028823-004

04/06/2019

The complainant commenced employment with the respondent on 20 June 2018. Her employment ended on 16 May 2019. She was employed as a dry-cleaning worker in a dry-cleaning shop, normally working Thursdays, Fridays and Saturdays. She worked 27 hours per week and was paid €294.00 per week. A complaint was lodged with the WRC on 4 June 2019.

The complainant submitted that she was not given her full holiday entitlement and is owed 3.5 days holiday pay. At the hearing she stated that she had only taken two days leave in 2019, up to the date her employment ended. According to the complainant this meant she was still owed four- or five-days annual leave.

The respondent stated that the complainant had been fully paid for the leave she was due up to the time her employment ended.

I find there is insufficient evidence to uphold this claim.   The complainant did not have any particulars to support her claim.

The complaint is not well founded.

The complainant submits that she never received a written statement of her terms and conditions of employment.

The respondent agreed that the complainant had ever been issued with a contract of employment or anything like it by him.

I find there was a breach of the Act.

The complaint is well founded, and I order the respondent to pay the complainant €500.00.

The complainant submits that she never got “official breaks” and that she was “required to be always on duty.”

The complainant stated that she normally got to the shop around 8.30am and worked until around 7.00pm and that she never got a break. On Fridays and Saturdays, she worked on her own in the shop. If she was having lunch and a customer came in, she would have to leave her lunch and service the customer. She stated that she never had a break.

The respondent stated that the shop opens at 09.00am and closes at 18.00pm.   The respondent stated that there is a lot of downtime in the shop, it is like a “drop shop”.

The respondent agreed that if the complainant was having lunch and a customer came in, she would have to serve the customer. He stated that the shop remained open throughout the day.

It is necessary to apply the evidence adduced to the applicable statutory provisions. In relation to statutory breaks, Section 12(1) of the Organisation of Working Time Act 1997 provides:

“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) (Subsection 3 omitted as irrelevant to the instant complaint). (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).” Section 25(1) of the Act requires employers to retain records showing compliance with the Act and Section 25(4) provides that where an employer fails to keep such records, the onus of proving compliance in relation to a complaint of non-compliance before the WRC or Labour Court lies with the employer. Regardless of contractual provisions requiring an employee to flag untaken breaks, the onus of ensuring compliance rests with an employer. In Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311, the Labour Court set out how the burden of proof should operate in practice. As a matter of basic fairness, a claimant is required to adduce such evidence as is available to support a stateable case of non-compliance with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet before Section 25(1) comes into play. I find the complainant’s evidence to be clear in this respect, I am therefore satisfied on the balance of probabilities (particularly as it was agreed by the respondent that the shop did not close anytime during the working day) that genuine breaks were not afforded to the complainant. As the respondent has not provided any records showing compliance with Section 12 of the Organisation of Working Time Act 1997, I am satisfied that this complaint is well-founded.

The Labour Court has in DWT1914, set out its views in relation to compliance with the Act in relation to breaks:

“The question of whether the Working Time Directive, from which the Act of 1997 is derived, imposes an obligation to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken was considered by the then ECJ in Case C-484/04, Commission v United Kingdom [2006] IRLR 888.

This case concerned guidelines issued by the UK Authorities on the application of statutory provisions equivalent to the Act of 1997. These guidelines provided that “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest”. The Commission brought proceedings against the United Kingdom claiming that in issuing these guidelines it had failed to fulfil its obligation to effectively implement the Directive. The Court held that the impugned guidelines amounted to an incorrect statement of Community law.

In its’ Judgment the Court held as follows: -

• Workers must actually benefit from the daily and weekly rest periods provided for by Articles 3 and 5 of the Directive. Those provisions impose clear and precise obligations on the member states as to the result to be achieved by such entitlement. A member state which, in the national measures implementing the Directive, provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or the essential objective of the Directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled

It is clear from this passage that employers are obligated by the Directive to ensure that the prescribed periods of rest are actually taken.

In this case it is clear and undisputed that the minimum daily rest period prescribed by Section 11 and the minimum weekly rest period prescribed by Section 13 were disregarded. It is equally clear to the Court that the Respondent took no practical steps to ensure that that its obligations under the Act in that regards were observed. Accordingly, the Court is satisfied that Section 11 and Section 13 of the Act were contravened in relation to the Claimant.

The right to adequate rest is a right derived from a Directive of the European Union. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

The Act at Section 27(3)(c) provides that the Court may award compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years remuneration.”

In this instance I find the complainant was not afforded the breaks due to her during her working day. In measuring the amount that is just and equitable having regard to all the circumstances I have taken account of the seriousness of the infringements which I have found to have occurred and the sustained nature of those infringements. Having regard to these factors and the obligations arising from the CJEU decision in Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 I have measured the amount of compensation which is just and equitable at €3,000.00.

The complaint is well founded, and I order the respondent to pay the complainant €3,000.00.

The respondent submitted that on 9th May 2019 he had received a phone call from the complainant who was in the shop at the time. The complainant asked the respondent why her co-worker was in the shop when it was her, the complainant’s, day to work.   The respondent explained to the complainant that he thought she was not coming in that day because she was taking holidays the following Friday and Saturday. The respondent submits that while the phone line was still open, he heard the complainant raise her voice and shout at her co-worker, telling her “to get out” as this was her working day. The respondent tried to talk to the complainant but all he could hear was her screaming at her co-worker.

The respondent hung up the phone and rang back a few minutes later. The respondent submits that when he spoke with the complainant, she used bad language and complained it was she who should be working that day not her co-worker.   The respondent thought it best to get the complainant off the premises so he told her, because of the misunderstanding on his part, to go home and that she would be paid for the day.

The respondent submits that he rang the shop back about ten minutes later only to find the complainant was still there. He told her he wanted her off site and that if she did not leave he would have to call the Gardai. When he phoned back a few minutes later, the complainant had gone.

Later the same day the respondent received a letter from the complainant’s co-worker outlining her recollections of what had happened in the shop and her interactions with the complainant that day. The co-worker requested that the matter be resolved as soon as possible.

The respondent submitted that following what he had heard on the phone on 9th May 2019, he had decided to let the complainant go. His decision was also informed by the statement, relating to the day in question, given to him by the complainant’s co-worker. He stated that the decision to dismiss the complainant was all to do with the incident of 9th of May 2019.

The respondent does not have a written disciplinary procedure.

The complainant submits that she was unfairly dismissed. She stated that on 23 March 2019, she had a conversation with the respondent about a scarf going missing, she alleges he was extremely angry with her and rude to her. She pointed out that her colleague, Ms A, was constantly causing customers to complain.

On 26 March 2019, the complainant had a meeting with the owners of the shop at which she told them of her difficulties at work, but she maintains they were more interested in getting work done and the customers.

The complainant stated that on 9 May 2019, a row had taken place between herself and Ms A. The complainant says she was told to go home by the respondent.

On 16 May 2019, when she arrived at the shop, she was told by the owners that she was being let go. The complainant had no idea that anything like this was going to take place as no meeting had been arranged. The complainant says she was only told she was being let go. There was no mention of an appeal. She subsequently got three day’s pay.

In closing, the complainant stated that she has not worked since she was dismissed although she has looked in “job seekers”.

The claim of Unfair Dismissal here is under the Industrial Relations Act,1969 as it cannot come under the Unfair Dismissal Act,1977 due to the short service of the complainant.

However, this does not mean that the guiding legal principles of Natural Justice do not apply.

A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where

Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

 Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules on Natural Justice.

It is obvious from the evidence adduced at the hearing that the Rules of Natural Justice were disregarded entirely, and this was without doubt an Unfair Dismissal. Notwithstanding that, it is obvious that the complainant’s behaviour on 9th May 2019 fell well below the acceptable minimum expected of an employee and this poor behaviour contributed in a substantial way to her dismissal.

The complaint is well founded, and I make a recommendation that the respondent pay the complainant compensation of €3,861.00 for the unfair dismissal.

Holidays, natural justice, payment of wages.