ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00022516

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Retail Outlet

Representatives

The claimant

Complaint(s):

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-00029143-001	18/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00029143-002	18/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00029143-003	18/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00029143-004	18/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00029143-005	18/06/2019

Date of Adjudication Hearing: 26/09/2019

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 27 of the Organisation of Working Time Act 1997 and/or Section 7 of the Terms of Employment (Information) Act 1994 and/or Section 6 of the Payment of Wages Act 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Complainant’s Case:

The claimant worked as a Shop Assistant for the respondent from the 6.02.2019 to the 15.06.2019 The claimant submitted the respondent was in breach of the Organisation of Working Time Act, 1997 Act for failing to pay her Sunday Premium, for failing to facilitate her with breaks and for failing to pay her compensation for 2 public holidays worked in the course of her employment. The claimant asserted that she would work from 8-9 hours on a continuous basis without cover which denied her any opportunity to take a break. The claimant said that she had to leave the bathroom door open to avail of the facilities. She accepted that on some occasions the manager would be present to provide relief cover to take a break but she frequently worked for 4pm-9pm with no cover and no capacity to take a break. The claimant asserted that she raised the matter of Sunday Premium with her manager but to no avail.

The claimant submitted that the respondent was in breach of the Terms of Employment (Information Act) 1994 for failing to furnish her with any written terms and conditions of employment.

The claimant submitted that the respondent was in breach of the Payment of Wages Act 1991 for deducting €29.40 for work breaks that she was unable to avail of.

Summary of Respondent’s Case:

The respondent denied the claimant’s assertions regarding the WC and said one had to access through 3 doors to reach the toilet. He asserted that the customers did not complain if a worker had to use the toilet. The respondent stated that under law he was required to deduct pay for breaks. He asserted there would often be a 40 minute lull in the shop which facilitated staff taking their breaks. You take a break when you can take it – he said. The respondent had no records recording break times. He said there were days when there were 2-3 staff in and breaks could be taken. The respondent accepted he was not paying Sunday premium – he thought he was doing the right thing and he was never asked about Sunday premium. It was accepted there were no compensatory arrangements for payment for staff who worked bank holidays. The respondent accepted the claimant was not furnished with written terms and conditions of employment. He asserted that if a staff member worked over 6 hours, they got a half hour off and he refunded it to them.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

The matter of the non payment of Sunday premium was not disputed and accordingly I uphold this element of the complaint. I require the respondent to pay the claimant €250 compensation for this breach of the Act.

There was no dispute between the parties with respect to non payment for public holidays worked by the claimant and accordingly I uphold this element of the complaint. I require the respondent to pay the claimant €250 compensation for this breach of the Act.

On the basis of the evidence presented at the hearing and in light of the respondent’s failure to keep records of work breaks, I have concluded that the respondent was in breach of Section 12 of the Act and accordingly I am upholding this element of the complaint. I require the respondent to pay the claimant €300 compensation for this breach of the Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

As there was no dispute between the parties in relation to the non provision of written terms and conditions of employment in accordance with Section 3, I am upholding this complaint and I require the respondent to pay the claimant €784 compensation for this breach of the Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

On the basis of the evidence presented I have concluded that the claimant did not give her prior consent in writing to the deduction for breaks and accordingly I am upholding the complaint. I require the respondent to pay the claimant €29.40 compensation for being in breach of the Act.

Dated: 9th March 2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea