Complainant

Respondent

Anonymised Parties

A Restaurant Worker

A Fast Food Restaurant

Representatives

N/A

N/A

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-00032021-001

06/11/2019

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

CA-00032021-002

06/11/2019

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

CA-00032021-003

06/11/2019

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

CA-00032021-004

06/11/2019

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

CA-00032021-005

06/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00032021-006

06/11/2019

The complainant worked as a Counter Assistant with the respondent from 15th August 2018 to 27th September 2019. She was paid €10 per hour and received €200 cash per week. She claimed that she did not receive any holiday pay, any breaks or a Sunday premium payment. She also alleged that she did not receive a written statement of her terms and conditions of employment.

CA-00032021-001:

The complainant stated that she did not receive any compensation for working on a Sunday despite having done so every week.

CA-00032021-002:

Despite working from at least 6pm to 12 midnight three evenings per week, and usually after 12 midnight, the complainant never received any of her statutory breaks.

CA-00032021-003:

The complainant stated that she did not receive any of her annual leave entitlements over the course of her employment.

CA-00032021-004:

The complainant stated that she did not receive any payment for public holidays over the course of her employment

CA-00032021-005:

The complainant stated that she did not receive a written statement of her terms and conditions of employment.

CA-00032021-006: There was no evidence presented in relation to this complaint

Despite having been notified in writing on 7th February 2020 of the time and date of the hearing, the respondent did not attend to give evidence.

CA-00032021-001:

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.

The complainant stated that she did not receive any compensation for working on a Sunday despite having done so every week over the cognisable period from 7th May 2019 to 27th September 2019.

CA-00032021-002:

Section 12 of the Act states

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

Despite working from at least 6pm to 12 midnight on three evenings per week, and usually after 12 midnight, the complainant never received any of her statutory breaks. I note that the respondent is required under Section 25 of the Act to keep records of the Complainant’s hours of work, but no evidence has been presented to me to suggest that it has done do.

CA-00032021-003:

In relation to the complainant’s entitlement to annual leave, this is a statutory entitlement governed by section 19 of the Organisation of Working Time Act 1997.

“19. Entitlement to annual leave

(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.

The six-month period referred to in the complaint under Section 27(4) of the Act encompasses the period from 7th May 2019 to 6th November 2019, ‘the cognisable period’.

CA-00032021-004: I note that the reference period is from 7th May 2019 to 27th September 2019 and that there were two bank holidays during this period.

CA-00032021-005: In the absence of any evidence to the contrary, I find that this complaint is well founded.

CA-00032021-006: There was no evidence presented in relation to this complaint

CA-00032021-001:

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.

The complainant stated that she did not receive any compensation for working on a Sunday despite having done so every week over the reference period from 7th May 2019 to 27th September 2019. In the absence of a written statement of her terms and conditions of employment. which contains a specific provision in relation to Sunday working, I find that this complaint is well founded and order the respondent to pay the complainant €500 in respect of this breach.

CA-00032021-002:

This complaint is well founded, and I order the respondent to pay the complainant a total of €400 in respect of the loss of her statutory entitlements and as compensation for the infringement of her rights

CA-00032021-003:

I find that this complaint is well founded. In deciding on the amount of compensation to award, I note that the obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559. I also note that, in Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ, as it then was, 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.

I therefore order the respondent to pay a total of €750 in respect of the loss of the complainant’s statutory entitlements and as compensation for the infringement of her rights.

CA-00032021-004:

I find that this complaint is well founded and order the respondent to pay a total of €250 in respect of the loss of her statutory entitlements and as compensation for the infringement of her rights.

CA-00032021-005: Given that there was no evidence presented to suggest that the complainant received a written statement of her terms and conditions of employment, I find that this complaint is well founded. In deciding on the amount of compensation to award, I refer to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on the case, the Labour Court Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be more serious than issuing an imperfect statement, I must be guided by the Labour Court decision and make the maximum award in the case under consideration here.  Accordingly, I order the respondent to pay the complainant €800.

CA-00032021-006: Given that there was no evidence presented in relation to this complaint, I find that it is not well founded.