Complainant

Respondent

Anonymised Parties

A Sales Assistant

 A Supermarket

Representatives

  Appeared in Person

 Tom Smyth & Associates

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-00040083-002

26/09/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 26 September 2020, the Complainant, a former Shop Assistant, submitted a complaint regarding rest breaks. He submitted that he had not received breaks during 9 consecutive hours of work. The Complainant presented his own case.

The Respondent operates a Supermarket and was represented by Tom Smyth and Associates. The Respondent rebutted the claim.

Both parties submitted written submissions .

The Complainant outlined that he had commenced work at the Supermarket in December 2019 and was assigned to Bakery Area on 7 March 2020. At that time, he worked alongside two experienced bakers and securing breaks was not an issue.

The Head Baker went on leave at the end of July and the other senior left the company at the end of August. The Complainant stepped into his role, taking the lead during his Seniors 2 days off. The Complainant, by his own admission struggled with this transition and began to skip his breaks to concentrate fully on the additional responsibility the locum role provided. The second senior baker left the business on 24 August 2020 and the complainant stepped into that role completely.

He submitted that he had struggled with this new challenge, as he had very little bakery experience and had effectively forfeited his break times to balance his new-found responsibility. He was taken aback to be have been approached by the Respondent and instructed to take his breaks.

He was further shocked to then receive a written “caution “for not taking breaks. The Complainant submitted that there were at least 12 -16 occasions between July and September 7 when he had been unable to take his I hr and 20 mins allocated daily breaks.

The Complainant had sought help with the work and considered that he had not been supported in his role. He took offence when he was approached by the HR Manager and accused of not wanting to work. He approached the owner of the business also and was informed that failure to take his breaks was his own fault.

The Complainant submitted that he resigned from the business because of the impact of the Human Resource Managers negative commentary towards him. He had asked for cautions covering the other periods of missed breaks, but these were not forthcoming. or

He disputed the supports offered to him by the respondent. He acknowledged that the workload began to reduce but he was not experienced in baking and the support made little difference, as it was sporadic.

The Complainant submitted that the Respondent had contravened the Organisation of Working Time Act, 1997.

The Complainant confirmed that a positive culture on breaks had existed at the company before he was addressed on the topic.

The Complainant confirmed that he had reapplied for work at the business in December 2020 and had not heard anything back.

The Respondent operates a group of Supermarkets. The Respondent representative outlined that the complainant had commenced work in one store on December 5, 2019 and had transferred to another shop in March 2020. He had since resigned, having worked two weeks’ notice on October 1, 2020. He was paid €10.23 per hour. The Respondent was unaware that the complainant had lodged his claim with the WRC, whilst still actively employed.

The Respondent representative told the hearing that they were disappointed that the complainant had sought mediation, but this had not been made available.

The Respondent representative exhibited the contract of Employment, which pertained to the complainant, the staff handbook, policies on rest breaks, Grievance and Disciplinary procedures.

The Respondent outlined that the business was faced with an unforeseeable event in Summer 2020, where both Senior Bakers were not available.  One through relocation and one through resignation. The Complainant was requested to take the lead at the bakery. The Business changed to “par baked products “at that point.

Break time allowed and encouraged were provided for in a document referred to as:

Break Entitlements, signed by the complainant on 5 December 2019.

 This provided for a 20-minute short break and a 1hr break daily. The Respondent exhibited the

 “Detailed clocking report “2 March 2020 to 1 October 2020.

The Complainant did not raise any issue about losing his break time. In August 2020, the Store Manager addressed the complainant informally on not availing of his break times. He sought an explanation. The Complainant informed the Store Manager that he was under pressure, causing him to work through his break times. The Complainant was instructed to take breaks. When the situation remained unchanged, and the complainant was noted to have missed some breaks, the Human Resource Manager, Ms A engaged with the complainant and repeated the message that breaks were to be taken. The Respondent had cause to write to the Complainant in a hand delivered, follow up   letter dated 14 September 2020.

The letter cited dates of 7, 9, 11 and 12 September 2020, where breaks were not taken.

“I am hereby issuing you a caution in writing to ensure you understand the seriousness of your failure in taking breaks …… You are obliged to advise a Manager if you are finding difficulty in taking your breaks….”

The Complainant resigned his position on 17 September 2020. He had not activated the grievance procedure at that point. In addition, while the respondent was perplexed by the complainant’s failure to take breaks, they had not imitated the formal disciplinary procedure.

Evidence of Ms A, Human Resource Manager

Ms A outlined that the Business operated spot checks on compliance with statutory breaks. This information was sourced from a spread sheet of records. There were 4 Confectioners and 3 Assistants.

The Business was faced with annual leave over August 2020 and the Business brought in external support to cover absences at senior level.

Ms A met with the complainant informally on 7 September in response to his non-compliance with breaks. She was assured that the complainant would take his breaks. When there was no visible improvement, she wrote to him dated 14 September 2020 to re-enforce the need to take these breaks. The Complainant told Ms A that he would continue to work through his breaks. She felt that he wasn’t listening to her. Ms A disputed telling the complainant that she didn’t want him to work in the company. She confirmed that the caution referred to in the letter did not emerge from a Disciplinary action towards the complainant. The business just wanted him to take his breaks. The Complainant was pre-occupied with issues surrounding over time

There was no specific roster for breaks and breaks were to be taken between 10 am to 12 pm and 12pm to 1pm.

In conclusion, the respondent re-affirmed that the employer had gone to significant cost to install a time keeping system which is “an objective, reliable and accessible system enabling the duration of working time worked each day by each worker to be measured “C-55/18 CCOO v Deutsche Bank SAE, ECJ.

The Respondent had informed the complainant of his right to rest breaks and had acted reasonably in seeking him to comply with these statutory requirements.

The Respondent submitted that it was unreasonable to expect the Business to “Baby Sit “the complainant in a “Nanny State “environment, where the complainant had clearly ignored the instructions of several managers. It was unreasonable to expect the Business to pay the complainant for breaks which he had deliberately forfeited.

This is a claim for rest breaks in accordance with Section 12 of the Organisation of Working Time Act, 1997.

I have listened carefully to both parties and have considered the evidence adduced. In addition, both parties made written submissions. I have considered all.

It is also important for me to state that as a Shop worker the Complainant is covered by Organisation of Working time (Breaks for Shop Employees) Regulations 1998(SI 57/1998)

Section 12 of the Act provides that:

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).

In Tribune Printing and Publishing Group V Graphical Print and Media Union DWT 6/2004, the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks, in upholding a decision on contravention of S. 11 and 12 of the Act, the Court held that:

“Merely 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 “

I was struck by both party’s acceptance that a culture of availing of rest periods was present in this Business during the complainants 10 months of employment. I was struck by a disturbance in that pattern during July, August and early September 2020. I am also aware that this was a period during the National Pandemic which has placed Supermarkets in the category of an essential service. I accept that the complainant approached his unexpected elevation to the lead position in the Bakery in good faith.

However, he was ill equipped to lead the bakery and he soon became overwhelmed in the role. The Complainant admitted that he did take breaks on some occasions and he confirmed that his Team availed of their breaks.

I note that break time was not specifically aligned to a sequencing but was availed of by all at the Business. I accept that break time was monitored through the electronic “clock in and out system “records of which highlighted that breaks were not availed of by the complainant.

During the hearing the complainant confirmed that his claim was not about compensation, but to get the Business to reverse saying that he did not want to work. He had taken the “caution “extremely personally and felt unfairly treated, given the level of responsibility he had taken for the business.

I noted that the complainant had experienced a parallel difficulty on a contract issue and was offered the attendance of a colleague or family to assist in resolution. The Respondent confirmed that they didn’t think about offering this to encourage the complainant to take his breaks.

A careful analysis of Appendix 4 of the Respondents detailed clocking report confirms a variance in the break pattern of the complainant during dates in July, August and September which appear to have stabilised in the weeks prior to his leaving employment.

Section 12 of the Act implements article 4 of the Directive on Working Time and provides for an entitlement by employees to a rest break. Breaks provided at the end of a working day do not satisfy these requirements.

The question in this case asks whether the complainant was provided with his breaks in accordance with Section 12 of the Act?

This is an unusual case as the complainant has not submitted that he asked for and was denied breaks. His case rests on his inability to avail of the breaks as a contravention of the law. He has qualified this since by a certain distance from the reported breaches in favour of his complaint amounting to a response to being accused of not wanting to work by the Human Resource Manager.  From my perspective, these are vastly separate circumstances and any interpersonal difficulty is best dealt in the first instance through the company internal procedures.

My jurisdiction rests solely on the reported breach of Section 12 of the Act. The Complainant has not made a complaint of Penalisation under the Act.

The question of rest periods both weekly and daily were addressed by the Court of Justice of EU in a very interesting case of C-484/08, Commission v United Kingdom, which held that an Employer needs to be at least more pro-active in ensuring compliance with EU Directive on rest periods.

As the Advocate General rightly observed in point 67 of her Opinion, and as the

Commission furthermore conceded during the hearing, compliance with the

obligations set out by Directive 93/104 should not, as a general rule, extend to

requiring the employer to force his workers to claim the rest periods due to them.

The employer's responsibility concerning observance of the rest periods provided for

by that directive cannot be without limits.

The CJEU found that the United Kingdom and Northern Ireland had failed to adopt measures necessary to implement the rights of the workers to daily and weekly rest periods.

The obligation, therefore within the Act is to create an atmosphere within the employment in which the minimum rest periods are effectively observed.

In the instant case, the complainant was concerned that the respondent may have imposed working conditions on him which were incompatible with such an atmosphere. I noted that his contract or job description did not alter on his assuming the new locum role. I accept that he did not have enough experience for the role. I accept that the respondent modified work systems to cater for these challenges. This was in response to the complainants call for help. This was reasonable .

I am satisfied that the complainant availed of rest periods during his tenure at locum senior baker at the respondent business. I am also clear that he did not chase the break times he missed through the grievance procedure.

He was, however notified of his break entitlement on commencement of employment. He was provided with an opportunity to take those breaks and provided with a rest area. He did not volunteer to forfeit breaks. He just got lost in a changing work pattern.

Ironically the rest periods are designed to allow for a complete break away from the line and the complainant would have benefitted from this rest.

Employees cannot be forced to take breaks, but they are to be positively enabled to do so.

I find that the Respondent took active steps and complied with the provisions of Section 12 of the Act. It was the complainants unexpected challenge of working at a higher authority that caused him to lose his way on rest periods. The Respondent had identified the break times and these times were available with identifiable facilities for him to take rest. I appreciate that the complainant was averse to leave the line unattended, but he confirmed at hearing that both senior Bakers had availed of their breaks. He was also aware of his Break Entitlements from his consent on the  Induction documentation.

I would make a final comment that the notification of sanction to the complainant was not a term of best practice. I would have preferred to see an attempt at joint corrective action in the first instance.

However, based on the circumstances highlighted before me, I find that the complaint is not well founded. I have not identified a breach of Section 12 of the Act.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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 Section 12 of that Act.

I have found the claim of contravention of section 12 of the Act to be not well founded .

Rest Periods