Complainant

Respondent

Anonymised Parties

An Accommodation Assistant

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027507-001

02/04/2019

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

CA-00027507-002

Withdrawn

02/04/2019

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

CA-00027507-003

02/04/2019

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

CA-00027507-004

Withdrawn

02/04/2019

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

CA-00027507-005

02/04/2019

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

CA-00027507-006

02/04/2019

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

CA-00027507-007

02/04/2019

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

CA-00027507-008

02/04/2019

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

CA-00027507-009

02/04/2019

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

CA-00027507-010

Withdrawn

02/04/2019

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

CA-00027507-011

Withdrawn

02/04/2019

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

CA-00027507-012

Withdrawn

02/04/2019

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

CA-00027507-013

Withdrawn

02/04/2019

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

CA-00027507-014

Withdrawn

02/04/2019

The complainant is an accommodation assistant and she commenced work in the respondent’s hotel on April 24th 2008. On the date of the hearing, she had been absent since November 19th 2018, due to an injury at work. Her complaints are concerned with what she considers is an inadequate statement of her terms and conditions of employment and various breaches of her entitlements under the Organisation of Working Time Act 1997 (“the 1997 Act”).

Time Limits

Ms Loughnane anticipated the respondent’s argument that the time limit for bringing a claim under the Terms of Employment (Information) Act is within six months after the expiry of the two months within which the written terms are to be provided to an employee. In this regard, she referred to the decision of the adjudicator in GP Trainer v A Health Provider ADJ-00016102.   Here, the adjudicator found that the contravention of the Act was “a subsisting contravention” and the complaint was considered.

The De Minimis Rule

Ms Loughnane also anticipated that the respondents would seek to rely on the “de minimis rule” in respect of all the claims submitted by the complainant. Ms Loughnane argued that the rights being pursued are employment law rights pursuant to statute and EU legislation, they are not complex and they do not place an onerous burden on an employer. She further submitted that the Organisation of Working Time Act emanates from health and safety legislation designed to provide minimum protection for workers. In the context of an enactment that provides minimum protection for the health and safety of workers, Ms Loughnane said that there can never be a de minimis approach.

TimeLimits

The complainant has been absent from work since November 19th 2018 and these complaints were lodged with the WRC on April 2nd 2019. It is the respondent’s case that the time limit for considering these complaints is the six months prior to April 2nd 2019.

Mr O’Mahony argued that this case is distinguishable from that of GP Trainer v A Health Provider which was referred to by Ms Loughnane.   In that case, no statement of terms and conditions of employment were provided to the complainant. The complainant in the case under consideration here received a statement in September 2008 and it is the respondent’s position that the time begins to run from the date of the provision of that statement. For this reason, Mr O’Mahony argued that, if not all the complaints related to alleged breaches of the 1994 Act are out of time, then, at the very minimum, the complaint related to the failure to issue the statement in accordance with section 3(1) is out of time.

Technical Claims / De Minimum Rule

For the respondent, Mr O’Mahony argued that the complaints that have been submitted are not well-founded and further, that they are technical or trivial in nature and did not cause any prejudice or detriment to the complainant. For this reason, Mr O’Mahony said that the complaints fall under the “de minimus rule,” and should attract no compensation or the minimum compensation. At the hearing, we were informed that, the complainant has been paid her normal weekly wages since the date of her absence in November 2018.

Mr O’Mahony referred to the following legal precedents to support his argument concerning the de minimus rule:

Monaghan UDC v Alf a Bet Publications Limited [1980] IRLM 64

Irish Water v Hall TED 1/2016 [2016] ELR 61

Having started work with the respondent in April 2008, the complainant received a statement of her terms and condition of employment five months later, on September 29th 2008. She received a revised statement on March 27th 2009. The following is a summary of the complainant’s position regarding the breaches of the Terms of Employment (Information) Act 1994 (“the 1994 Act”):

1. In breach of section 3(1), the statement was not issued within two months of the complainant starting employment.

2. In breach of section 3(1)(a) and (b), the statement does not contain the full name and address of the employer.

3. In breach of section 3(1)(c), the statement does not contain the details of the complainant’s place of work.

4. In breach of section 3(1)(ga), the statement does not contain a statement that the complainant may request a written statement of her average hourly rate of pay in accordance with section 23 of the National Minimum Wage Act 2000.

5. The complainant alleges that, in breach of Statutory Instrument 49 of 1998, the Terms of Employment (Additional Information) Order 1998, the statement of her terms and conditions of employment did not provide details of the times and duration of rest breaks to which she is entitled under sections 11, 12 and 13 of the Organisation of Working Time Act.  

6. The complainant alleges that she was not issued with details of the hotel’s grievance and disciplinary procedures at the start of her employment, and only in the first contract issued in September 2008, but not in the March 2009 contract;

7. The complainant also alleges certain breaches of sections 21 and 30 of the Employment Equality Act 1998 regarding the requirement for the inclusion of a statement on gender equality and non-discrimination.   In her submission at the hearing, Ms Loughnane stated that these clauses are taken to be included in the statement and, for this reason, I will consider not consider this particular issue to be a complaint requiring adjudication.

In support of her arguments concerning this complaint, Ms Loughnane referred to the following legal precedents:

Felix Guerrero v Merchants Arch Company Limited DWT 188

ECJ Case C-350/1999 Lange v George Schuenemann GmbH

Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891

ECJ Case C-131/04 CD Robinson v Steele

It is the respondent’s case that the alleged breach of section 3(1) of the 1994 Act, concerning the fact that the statement was not issued within two months of the complainant starting employment in April 2008 is out of time.

Regarding the remaining breaches, the failure to have the name and address of the employer on the statement, the failure to show the complainant’s place of work, and the failure to have a reference to the minimum wage, Mr O’Mahony argued that these are trivial breaches that did not cause any detriment to the complainant.   He said that all of this information was “within the knowledge of the complainant” and the non-inclusion of this information in the written statement was of no consequence to her. In this regard, Mr O’Mahony quoted from the findings of the Labour Court in the Irish Water v Hall case which he referred to earlier, where the Court found that the deviations from section 3 of the Terms of Employment (Information) Act were “so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule.”

1. Contravention of Section 3(1) regarding the delay issuing the complainant with a statement of her terms and conditions of employment

Section 3 of the 1994 Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement providing certain information regarding their terms and conditions of employment. Such statements are generally issued in the form of a contract of employment. Section 3 was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide particular information to employees within five days of their start date.

Information to be confirmed in writing to the employee within five days of commencement:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, the end date of the fixed-term;

(d) The rate or method of calculation of wages and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) The daily and weekly hours that the employee is expected to work.

This remaining information is to be provided within two months of commencement:

(f) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(g) The job title or the nature of the work that the employee is required to carry out;

(h) The date that the employee commences in the job;

(i) Details of any collective agreement which affects the employee’s terms and conditions of employment and information about where the employee can get a copy of any such agreement;

(j) That the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of his or her average hourly rate of pay for any pay reference period as provided in that section;

(k) The pay frequency, whether weekly or monthly or some other frequency;    

(l) Any terms or conditions relating to hours of work (including overtime);

(m) Any conditions relating to paid leave (other than paid sick leave);

(n) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(o) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of employment;

(p) A reference to any collective agreements which directly affect the employee’s terms and conditions, including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Because the complainant commenced work with the respondent in 2008, the 2018 amending legislation does not apply to her. When she was not issued with a statement of her terms and conditions of employment two months after she started work, or before June 24th 2008, the respondent was in breach of section 3(1) of the 1994 Act. As this complaint was submitted to the WRC on February 2nd 2019, it is outside the time limit of six months (or 12 months, for reasonable cause) prescribed at section 41(6) and (8) of the Workplace Relations Act 2015.

2. Contravention of Section 3(1)(a) and (b) regarding the fact that the statement does not contain the full name and address of the employer.

The complainant was issued with two contracts of employment, on April 24th 2008 and on March 9th 2009. Copies of both documents were submitted in evidence and I note that neither show the name or address of the employer. Regardless of the fact that no detriment may have been caused to the complainant by this failure, this is a clear breach of the legislation which places no onerous obligation on the employer.

3. Contravention of Section 3(1)(c) regarding the fact that the contract does not contain the details of the place of work of the complainant.

Again, I acknowledge the fact that no disadvantage was caused to the complainant by the respondent’s failure to include in her contract of employment, the location at which she was required to work. However, there can be no avoiding the fact that a breach of the Act has occurred.

4. Contravention of section 3(1)(ga) regarding a statement to the effect that the employee may request in writing a calculation of her average hourly rate of pay in accordance with section 23 of the National Minimum Wage Act 2000.

The failure of the respondent to provide a reference to the complainant’s right to information about how the average hourly rate of pay is calculated relative to the minimum wage is a clear breach of section 3(1)(ga). The effect of this is to withhold useful information from the complainant that may have assisted her in a comparison of her hourly rate with the hourly minimum rate.  

5. The complainant alleges that her contract did not provide details her of her entitlement to daily and weekly rest breaks and breaks at work, in accordance with sections 11, 12 and 13 of the Organisation of Working Time Act.

Statutory Instrument 49 of 1998, the Terms of Employment (Additional Information) Order 1998, provides as follows:

“…where, under the Terms of Employment (Information) Act, 1994 , an employer is required to provide an employee with a written statement of certain particulars of his or her terms of employment, such statement shall, after 1st March, 1998, include details of the times and duration of (and any other terms and conditions relating to) the rest periods and breaks referred to in sections 11, 12 and 13 of the Organisation of Working Time Act, 1997 that are being allowed to the employee.”

Again, this information is absent from the contract issued to the complainant, and it is my view that the information would have been useful to her in her assessment of the benefits provided to her during her employment with the respondent.

6. The complainant alleges that, in breach of Statutory Instrument 146 of 2000, the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000, her contract does not contain information regarding the hotel’s grievance and disciplinary procedures. However, from my examination of the two contracts submitted in advance of the hearing, I note that information regarding the respondent’s grievance and disciplinary procedures is contained in both documents.

Having considered the six complaints of breaches of section 3 of the 1994 Act, it is my view that the Act has been breached in respect of the four contraventions listed below. I also find that the contraventions are ongoing and are therefore not out of time for the submission of a complaint for adjudication.

§    Contravention of Section 3(1)(a) and (b) regarding the fact that the statement does not contain the full name and address of the employer.

§    Contravention of Section 3(1)(c) regarding the fact that the contract does not contain the details of the place of work of the complainant.

§    Contravention of section 3(1)(ga) regarding a statement to the effect that the employee may request in writing a calculation of her average hourly rate of pay in accordance with section 23 of the National Minimum Wage Act 2000.

§    Contravention of Statutory Instrument 49 of 1998, the Terms of Employment (Additional Information) Order 1998, regarding the failure of the respondent to provide information to the complainant regarding her entitlement to daily and weekly rest breaks and breaks during the working day.

In considering complaints of this nature, the Labour Court has rejected any defence that the breaches are minimal or technical in nature. I intend therefore, to follow the authority of the Court, particularly in the case of Felix Guerrero v Merchants Arch Company Limited, which was cited by Ms Loughnane, and make an award to the complainant equivalent to three weeks’ wages.

CA-00027507-003: Breach of section 12 of the Organisation of Working Time Act 1997

This complaint concerns a breach of the complainant’s entitlement to breaks at work. Ms Loughnane submitted that the complainant was generally rostered to work from 8.00am until 4.30pm, but if she wasn’t finished cleaning all the rooms allocated to her, she finished later.   This meant that she did not always gett her entitlement to a rest break of at least 15 minutes after working for four and a half hours.

Ms Loughnane referred to the following precedents which she said show that there is a positive obligation on an employer to provide workers with an opportunity to take the breaks to which they are entitled:

Tesco Ireland Limited v Kazilas DWT 15139

ECJ Case C-484/04 Commission v United Kingdom

Nolan Transport v Antanas DWT 1117

The Tribune Printing and Publishing Group v Geographical Print and Media Union [2004] ELR 222

Tifco Limited v Smietana WT 11124

Nurendale Limited trading as Panda Waste v Savac DWT 19/2014

Monkland Oyster Hotels Limited trading as Athlone Springs Hotel v Michelle Smith

Eupreia trading as Dingle Skellig Hotels and Peninsula v Martin O’Connor DWT 1314

Michael Browne v Iarnród Éireann / Irish Rail (no.2) [2014] IHC 117

CA-00027507-005: Breach of section 14 of the Organisation of Working Time Act 1997

The complainant’s contract provides that her hourly rate of €11 includes a Sunday premium for the requirement to work two Sundays out of three. Ms Loughnane submitted that section 14(1)(a) and (b) of the Act provide that employees must be compensated for working on Sundays “by the payment of an allowance which is reasonable having regard to all the circumstances” or “by increasing the employee’s rate of pay by such an amount as it reasonable having regard to all the circumstances.”

Ms Loughnane referred to the following legal precedents in support of her position on this matter:

Park House Limited v Wlodarczyk DWT 24/2016

Viking Security Limited v Valent DW 89/2014

Hyper Trust Limited v Gordins 67/2014

Duesbury Limited v Frost DWT 32/2010

CA-00027507-006: Breach of section 17 of the Organisation of Working Time Act 1997

Contrary to section 17 of the Act, Ms Loughnane argued that the complainant was not notified when she was required to work past her normal finishing time. Ms Loughnane submitted that the following precedents are relevant:

Lucey Transport Limited v Serenas DWT 141/2013

Musgrave Limited v Vasilijevs DT 25/2018

If the respondent elects to raise a defence of its position by reference to the need to work additional hours due to unforeseen events provided at section 17(4) of the Act, Ms Loughnane said that she relies on the following precedents:

Scally v Lynch and Kelly DWT 102 / 2013

Trinity Lodge Limited v Catarama DWT 74/2014

Anglo Irish Beef Processors v SIPTU DWT 19/2000

O’Leary International Limited v Gurkovs DWT 1679

CA-00027507-007: Breach of section 19 of the Organisation of Working Time Act 1997

Ms Loughnane submitted that, in contravention of section 19 of the Act, the complainant did not receive two unbroken weeks of annual leave.

CA-00027507-008: Breach of section 20 of the Organisation of Working Time Act 1997

Ms Loughnane submitted that, in contravention of section 20(2)(a) of the Act, the complainant did not receive her weekly wages in advance of going on holidays. In this regard, Ms Loughnane referred to the European Court of Justice Case, Case C-12405 Federalie Nederlandse Vakbeweging v Staat der Nederlanden in which the Court described the entitlement to paid annual leave as a “particularly important principle of community social law from which there can be no derogation.”

CA-00027507-009: Breach of section 20 of the Organisation of Working Time Act 1997

If the complaint regarding Sunday pay is upheld, then I am required to consider a breach of section 20(2)(b) of the Act, concerning the calculation of the weekly rate of pay for annual leave.

The respondent submitted that complaints of any alleged breaches of the 1997 Act that took place prior to October 2nd 2018 are out of time.

CA-00027507-003: Breach of section 12 of the Organisation of Working Time Act 1997

Mr O’Mahony said that the complainant is required to take her breaks during her shift and has been informed of this requirement on several occasions at staff meetings. She also attended training on the recording of breaks on the clock-in system. Evidence that the training took place and that the complainant attended was submitted at the hearing.

The respondent does not accept that the complainant did not get her breaks; however, if she did not, then this is due to her refusal to take breaks as she has been instructed.   The employer’s position is that it has in place adequate provision to ensure that the complainant received her breaks. Referring to the ECJ case cited by Ms Loughnane of Commission v United Kingdom, Mr O’Mahony said that there was “de facto pressure” on the complainant to take her breaks rather than not to do so.

CA-00027507-005: Breach of section 14 of the Organisation of Working Time Act 1997

The respondent submits that, like the previous complaints, any alleged contravention of section 14 of the Act can only be considered from October 3rd 2018 onwards.   The complainant worked on six Sundays from that date until her absence from November 19th.

It is the respondent’s case that the complainant’s hourly rate of €11, as set out in her contract of employment, incorporates the requirement to work two Sundays out of every three. In late 2018, the hourly rate for accommodation assistants was increased to €10.50; however, for some employees, including the complainant, they are paid €11 per hour for all the hours they work. This higher hourly rate reflects their length of service and the requirement to work on Sundays. It includes a premium of 35 cents per hour for all hours worked.   Mr O’Mahony submitted that if the complainant was not required to work on Sundays, her hourly rate would be €10.65.  

CA-00027507-006: Breach of section 17 of the Organisation of Working Time Act 1997

The respondent submits that, like the previous complaints, any alleged contravention of section 17 of the Act can only be considered from October 3rd 2018 onwards.

Details were submitted at the hearing of the complainant’s roster which is provided to her in advance on Thursday or Friday of the week before the Monday to which the roster refers.   On this basis, Mr O’Mahony said that, in compliance with section 17 of the Act, the complainant receives more than 24 hours’ notice of her working hours.

At the hearing, Mr O’Mahony said that the complainant is generally rostered from 8.00am to 4.30pm on Mondays to Fridays and she is expected to clean 16 rooms. On some days, she might be asked to do an extra room, but she would only do this is she was agreeable and available to do so.

CA-00027507-007: Breach of section 19 of the Organisation of Working Time Act 1997

The respondent submits that, like the previous complaints, any alleged contravention of section 19 of the Act can only be considered from October 3rd 2018 onwards.

As she has been absent from work since November 19th 2019, the complainant has not had an opportunity to take the balance of her annual leave for the leave year from April 1st 2018 until March 31st 2019. The complainant did not seek approval to take two weeks of leave before her injury. Mr O’Mahony said that the respondent is flexible in relation to holidays and would facilitate the complainant’s request for two weeks off together.   However, he submitted that, as the holidays from the leave year 2018 / 2019 have not all been taken, this complaint is premature and without foundation.

CA-00027507-008: Breach of section 20 of the Organisation of Working Time Act 1997

The respondent submits that, like the previous complaints, any alleged contravention of section 20(2)(a) of the Act can only be considered from October 3rd 2018 onwards. The complainant has been absent from work since November 19th and did not take any holidays during the relevant period. Mr O’Mahony submitted that this complaint is without merit and must fail.

CA-00027507-009: Breach of section 20 of the Organisation of Working Time Act 1997

The respondent’s submission on this complaint is the same as that which was submitted in respect of the complaint above; the complainant did not take any holidays during the relevant period and the complaint is without merit.

The complaint form was received by the WRC on April 2nd 2019 and therefore, I have jurisdiction to consider any breaches of the Organisation of Working Time Act that occurred in the six-month period from October 3rd 2018 to April 2nd 2019. As the complainant was absent from work from November 19th 2018, the cognisable period is the seven weeks from October 3rd to November 19th.

Section 27(3) of the Organisation of Working Time Act 1997 - Redress

Where there is a finding that there has been a contravention of an entitlement under any provision of the 1997 Act, section 27(3) sets out the redress available:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

The legislation is clear therefore, and the complainant is not limited to recovering the actual monetary value of the payments or entitlements that I have found were withheld.   In reaching the decisions set out in this document, I have been mindful of my authority to award compensation that is just and equitable, subject to a limit of two years’ pay for any breach of a relevant provision of the Act.

CA-00027507-003: Breach of section 12 of the Organisation of Working Time Act 1997

The Law

Section 12 of the 1997 Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

(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).

Findings

The complainant contends that, because she was busy, she sometimes worked for more than four and a half hours without a break. The complainant’s roster and time sheets for October 1st until she went absent on November 19th 2018 were submitted in advance of the hearing. At the hearing itself, Ms Loughnane identified nine occasions during the seven week period when the complainant worked for more than four and a half hours in the afternoon and did not get a break.  

Each weekly timesheet completed by the complainant has the following instructions:

“Please ensure that you take your break entitlements. If you do not take your breaks, please inform your manager who will arrange an alternative time. It will be assumed that you have taken your breaks unless your manager is otherwise informed.”

Details of the statutory entitlements to daily and weekly rest breaks and breaks during the working day are also set out on the timesheet.

At the hearing, the respondent’s HR Manager said that they do everything they can to ensure that employees take their breaks. She said that the complainant was inclined to finish late on occasions and that she had been spoken to about this. Ms Loughnane said that the company has a clocking system and the records could have been produced; however, the HR Manager said that the complainant refused to clock in and out and was using the manual timesheets and that she had also been spoken to about this.

Evidence was submitted by the respondent which shows that on April 21st 2018, the complainant attended a training session about breaks and that she was informed about her entitlements. Mr O’Mahony argued that by providing this training, by informing employees on every weekly time sheet and by the managers instructing staff that they must take their breaks, the respondent has complied with section 12 of the 1997 Act.

The records submitted by the complainant show that, of the 35 days that she worked from October 3rd until November 19th, on nine days, she worked for longer than was specified on her roster and she did not take her full entitlement to a break in the afternoon. The complainant was not prevented from taking a break on any of these days and it is clear to me from the information submitted by both parties, that the respondent made a reasonable effort to ensure that the complainant always got the breaks during the working day to which she was entitled.  

That said, the critical aim of the Working Time Directive from which the 1997 Act 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."

In the case of this employer, they were attentive to the problem of the complainant working longer than her rostered shift. From the evidence submitted by the respondent’s representatives at the hearing, it appears that the focus of the management was on trying to ensure that the complainant did not work more than her rostered hours, rather than ensuring that she got her breaks.

The option for the employer was clear; either to ensure that the complainant left work at the appointed time, or to ensure that she got the break in the afternoon to which she was entitled. The evidence shows that neither of these options was exercised and this has resulted in a contravention of section 12 of the 1997 Act on nine occasions.

Reaching a conclusion on this matter, I have noted the findings of the Labour Court in the case of Eurpreia Limited, trading as Dingle Skellig Hotel and Martin O’Connor DWT 13146, which, to a significant degree, reflects the issues under consideration here. In this case, the Court noted the principle established in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1981 to the effect that redress should not only compensate for economic loss, but provide a deterrent against future breaches. Considering these authorities, it is my view that an award of four weeks’ pay is appropriate.  

CA-00027507-005: Breach of section 14 of the Organisation of Working Time Act 1997

The Legal Framework

Section 14 of the 1997 Act sets out the entitlement of employees to compensation for working on Sundays:

(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.

It is clear from this legislation that an employee who works on Sundays is entitled to be paid an allowance. It follows logically that the employee must know the value of the allowance and the difference between their normal wages and the rate of pay that applies to Sunday working.

Sub-section (3) of section 14 provides that, where there is no collective agreement in place in a company regarding a Sunday allowance, I must consider the rate that would be applied to a comparable employee in the sector in which the employee works. My understanding is that, in the hotel sector, an allowance of between 25% and 33% is generally paid for Sunday working.  

Findings

In the case of this complainant, she is paid an hourly rate of €11 which, the respondent said, includes 35 cents per hour for working two Sundays out of three. The effect of the allowance of 35 cents per hour produces the following outcome:

Weekly pay for employees not required to work on Sundays: 40 hours x €10.65 = €426

Weekly pay for employees required to work on Sundays: 40 hours x €11 = €440

The result of this is that the complainant is paid an additional weekly allowance of €14 for the requirement to work on two Sundays out of three. The value of the allowance is therefore €21 for each Sunday.   The basic hourly rate of €10.65 for eight hours gives us a daily rate of €85.20. The allowance of €21 is equivalent to just under 25% of the daily rate.  

The complainant’s contract of employment simply states that her hourly rate “includes your Sunday premium based on you getting every third Sunday off.” This is inadequate to explain how much of the hourly rate is paid for the requirement to work on Sundays and the difference in pay for working on Sundays compared to the rest of the week. I note that in the case of Viking Security Limited v Valent DWT 89/2014, the Labour Court held that the element of compensation for working on Sundays must be “clearly discernible from the contract of employment or from the circumstances surrounding its conclusion.” While the information provided to the complainant regarding the Sunday allowance was unclear, I find that the amount, at 25% of the daily rate of pay, was not unreasonable.

CA-00027507-006: Breach of section 17 of the Organisation of Working Time Act 1997

This is a complaint regarding the failure of the respondent to notify the complainant when she was required to work later than the normal finishing time on her roster.   At the hearing, Ms Loughnane said that, in the period from October 1st until she went absent on November 19th, the complainant finished work at her rostered finish time only on seven occasions. For the respondent, Mr O’Mahony said that the complainant was consistently told that she must finish on time and that, apart from some occasions when she was asked to do an extra room, in general, there was no requirement for her to stay later than her normal finish time.

I have considered this complaint and the evidence of the respondent concerning the complainant’s working hours requirement. I note that, during the cognizable period, more regularly than not, the complainant regularly worked an extra 30 minutes to one hour. Like the complaint regarding the failure to get her breaks, it is my view that it is the employer’s responsibility to ensure that an employee finishes work on time and, in the event of a requirement to work later, that adequate notice is provided. Based on the complainant’s time sheets which were submitted in evidence at the hearing, I must conclude that, in breach of section 17 of the 1997 Act, without any notice, the complainant was regularly required to work longer than her rostered hours.

CA-00027507-007: Breach of section 19 of the Organisation of Working Time Act 1997

This complaint relates to the entitlement at section 19 of the 1997 Act, to an unbroken period of two weeks of annual leave in a leave year. As was pointed out by Mr Loughnane, the complainant has been absent from work since November 19th 2019 and, for this reason, she has not been able to take the balance of her annual leave for the leave year from April 1st 2018 until March 31st 2019. She did not seek approval to take two weeks of leave before she went absent.

At the hearing, I noted that the respondent has no issue about the timing of holidays or the requirement under section 19 of the 1997 Act for employees to get two unbroken weeks of leave. On this basis, I have concluded that this complaint is without merit.

CA-00027507-008: Breach of section 20 of the Organisation of Working Time Act 1997

This is a complaint regarding the entitlement of employees to be paid their wages for annual leave in advance of taking the leave.

The complainant was absent from work from November 19th 2018 and she did not take any holidays during the cognizable period from October 3rd until November 19th. I find therefore, that there is no merit to this complaint.

CA-00027507-009: Breach of section 20 of the Organisation of Working Time Act 1997

This complaint concerns the appropriate rate at which pay for annual leave is to be calculated, taking account of the Sunday allowance to which the complainant is entitled. Similar to the complaint above, as she did not take any holidays during the cognizable period, there is no merit to this complaint.

CA-00027507-001: Complaint under the Terms of Employment (Information) Act 1994

The complaint under the Terms of Employment (Information) Act 1994 is upheld and I therefore decide that the respondent is to pay the complainant €1,320 in compensation, equivalent to approximately three weeks’ pay

CA-00027507-003: Breach of section 12 of the Organisation of Working Time Act 1997

The complaint of a breach of section 12 of the 1997 Act is upheld and I therefore decide that the respondent is to pay the complainant €1,760 in compensation, equivalent to four week’s pay.

CA-00027507-005: Breach of section 14 of the Organisation of Working Time Act 1997

I have concluded that, in respect of the payment of an allowance for working on Sundays, there was no breach of section 14 of the 1997 Act and this complaint is not upheld.

CA-00027507-006: Breach of section 17 of the Organisation of Working Time Act 1997

The complaint of a breach of section 17 of the 1997 Act is upheld and I therefore decide that the respondent is to pay the complainant €1,760 in compensation, equivalent to four week’s pay.

CA-00027507-007: Breach of section 19 of the Organisation of Working Time Act 1997

I have concluded that, in respect of the requirement to take two unbroken weeks of annual leave, there is no merit to this complaint and it is not upheld.

CA-00027507-008: Breach of section 20 of the Organisation of Working Time Act 1997

I have concluded that, in respect of the entitlement to pay in advance of taking annual leave, there is no merit to this complaint and it is not upheld.

CA-00027507-009: Breach of section 20 of the Organisation of Working Time Act 1997

I have concluded that, in respect of the entitlement to pay for annual leave to include the Sunday allowance, there is no merit to this complaint and it is not upheld.

The awards set out above under CA-00027507-001, CA-00027507-003 and CA-00027507-006 are made by way of compensation for a breach of a statutory entitlement and are not subject to any statutory deductions.

Terms of Employment (Information) Act 1994 and Organisation of Working Time Act 1997