Complainant

Respondent

Anonymised Parties

A Bar Manager

A Bar and Restaurant

Representatives

Gabrielle Dalton

Did not attend 

Act

Complaint 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-00029823-001

23/07/2019

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

CA-00029823-003

23/07/2019

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

CA-00029823-005

23/07/2019

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

CA-00029823-006

23/07/2019

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

CA-00029823-007

23/07/2019

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

CA-00029823-008

23/07/2019

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

CA-00029823-009

23/07/2019

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

CA-00029823-010

23/07/2019

The following is a summary of the Complainant’s case.

The Complainant commenced work on the 17 November 2017 and her employment ended on 27 January 2019. She worked on average 48 hours per week and was paid €500 gross per week.

CA- 00029823-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she was not given any compensation for working on a Sunday. She said that she was paid a fixed salary of €500 per week gross, no matter how many hours she worked or whatever days she worked in the week her payment was the same. She said that she never got a premium for Sunday work and did not know that she was entitled to it.

CA- 00029823-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not receive any paid holiday/annual leave entitlement. She said that in the 14-month period working there she never got any holidays at all.

She said that her employer insisted that she take 3 days holidays during the heavy snow in Spring 2018 when the business was unable to open because of the weather conditions. She said that when she broached the subject of holiday pay with her employer, he told her to take a number of instalments of cash from the till making a total of what she was owed €1,500. She said that this sum was meant to be holiday pay for holidays, she could not take because she was needed at work.

CA- 00029823-005 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not receive her Public Holiday entitlements. The Complainant said she never got any bank or public holidays off and she never got paid for them either. The Complainant said that these were often the busiest days for those working in the trade and she was expected to work them. She said that there was no additional pay or any compensation for working those days.

CA- 00029823-006 Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

The Complainant said that she did not receive the National Minimum Rate of Pay. As indicated in previous headings, after several weeks working on an hourly rate her employer changed her pay to a fixed salary of €500.00 per week.

She said that she was the manager of a very busy pub/club/restaurant and so she was expected to work very long hours. She said that her "normal" working week at times ranged from about 46 hours to 55 hours. The Complainant said that when she brought this to her employer’s attention, he replied that it was her own fault as she was the Manager and drew up the weekly roster. The Complainant said while this may have been true, she was very much needed in work for all those hours.

CA- 00029823-007 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not get scheduled breaks. She said that she never got breaks during the working day so in total frustration, she started smoking so that she had an excuse to take a break to leave work, go outside and take a few minutes to herself.

CA- 00029823-010 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant said that she did not get weekly rest periods. She said for the first three months that she worked she would normally work 6 days per week, every week. She said that she did not work on a Tuesday simply because the business did not open on a Tuesday. However, she said if it did “I would have been expected to work 7 days each week”.

The Respondent did not attend the Hearing nor was it represented.

These complaints were submitted to the Workplace Relations Commission on 23 July 2019. The cognisable period of the complaints is 24 January 2019 – 23 July 2019. The Decisions on each complaint are made in accordance with the time limits prescribed under Section 41(6) of the Workplace Relations Act, 2015.

CA- 00029823-01 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 14 of the Organisation of Working Time Act 1997 stipulates

“14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

I have heard the Complainant’s uncontested evidence and accept her claim that she worked Sundays continually and was not paid a premium. This complaint is therefore well founded.

I order the Respondent to pay the Complainant the sum of €2,000 for its failure to pay the Complainant a Sunday premium.

CA- 00029823-03 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 19 of the Organisation of Working Time Act 1997 stipulates

“Entitlement to annual leave

 19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as ‘annual leave’’) equal to—

 (a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

 (b)    one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

 (c)     8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.”

Section 20 of the Organisation of Working Time Act 1997 stipulates

“Times and pay for annual leave

Section 20(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable take all or part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer,

within the period of 15 months after the end of that leave year.”

With regard to the above I am satisfied that I have jurisdiction to investigate a complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral. The complaint was referred to the WRC on 23 July 2019 and the cognisable period of the complaints is 24 January 2019 – 23 July 2019. Section 2(1) of the Act defines the “leave year” as “a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to 27 January 2019, which equates to the last 10 months.

For the period under review I am satisfied that the Complainant is entitled to one-third of a working week for each month in the leave year in which he or she works at least 117 hours, as of Section 19(1)(b) above. I deem that she is entitled to 3.3 weeks wages. A week’s wage equates to €500, therefore 3.3 weeks equates to €1,667. The Complainant in her evidence said that she was paid €1,500 in instalments form the till as payment for her annual leave. Accordingly, she is owed the outstanding sum of €167.

This complaint is well founded.

I order the Respondent to pay the Complainant the outstanding sum of €167 in respect of the outstanding Annual leave entitlement.

CA- 00029823-05 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 21 of the Organisation of Working Time Act 1997 stipulates

“Entitlement in respect of public holidays.

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(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,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule .

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.”

The Complainant’s public holiday entitlements within the cognisable period of that complaint (24 January 2019 – 23 July 2019) amounts to 4 days.

I have heard the Complainant’s uncontested evidence and accept her claim that she has an outstanding entitlement in relation to Public Holiday entitlements.

I find that the complaint is well founded.

I order the Respondent to pay the Complainant the sum of €1,000 for the breach of Section 21 failure to pay in respect of public holidays in compensation in relation to the infringement of the Complainant’s employment rights.

CA- 00029823-06 Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

I note the Complainant said that her normal hours worked per week varied but it averaged at around 48 hours per week. She said that she did not receive the National Minimum Rate of Pay.

I am satisfied that she was paid €500 gross per week. I note that €500 divided by 48 hours equates to €10.41 per hour.

I note that the national minimum rate of €9.80 applied at that time.

Accordingly, I find that the complaint is not well founded.

CA- 00029823-07 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 12 of the Organisation of Working Time Act 1997 stipulates

“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 in subsection (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 under subsection (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 in subsection (1) or (2).”

I have heard the Complainant’s uncontested evidence and accept her claim that she has an outstanding entitlement in relation to Rests and intervals at work.

I find that the complaint is well founded.

I note the aim of the Working Time Directive from which the Organisation of Working Time Act, 1997 is derived, is to protect the health and safety of employees and the responsibility for doing so falls on the employer. When considering a similar case in Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004, the Labour Court held that an employer not only had an obligation to ensure that their employees received rest breaks but,

"...stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty."

Accordingly, I order the Respondent to pay the Complainant the sum of €2,000 (four weeks gross pay) for the breach of Section 12 in compensation in relation to the infringement of the Complainant’s employment rights.

CA- 00029823-010 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

Section 13 of the Organisation of Working Time Act 1997 stipulates

“Daily rest period

13.(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

The Complainant stated that the Respondent breached the provisions of Section 13 of the Organisation of Working Time Act, 1997 in respect of weekly rest periods. However, she states that she always had Tuesday’s off and that had changed when cover was arranged in the Spring when she had two days off per week, therefore she worked five days per week usually in the cognisable period of this complaint. On that basis, I conclude that she received weekly rest periods in line with the provisions of the legislation and the complaint is not well founded.

CA- 00029823-001 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant the sum of €2,000 for the failure to pay the Complainant a Sunday premium.

CA- 00029823-003 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant the outstanding sum of €167 in respect of the outstanding Annual leave entitlement.

CA- 00029823-005 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant the sum of €1,000 for the breach of Section 21 failure to pay in respect of public holidays in compensation in relation to the infringement of the Complainant’s employment rights.

CA- 00029823-006 Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

I find that the complaint is not well founded.

CA- 00029823-007 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is well founded.

I order the Respondent to pay the Complainant the sum of €2,000 (two thousand euro), equivalent to four weeks gross pay, for the breach of Section 12 in compensation in relation to the infringement of the Complainant’s employment rights.

CA- 00029823-010 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

I find that the complaint is not well founded.

Organisation of Working Time Act – Bar – restaurant