DWT219

1.Appeal of Adjudication Officer's Decision No.ADJ-0026842 CA-00034035-002

BACKGROUND:

2.An Adjudication Officer hearing took place on 8 October, 2020 and a Decision was issued on 3 November, 2020. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 2 December 2020 in accordance with section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 23 June, 2021. The following is the Determination of the Court:-


DETERMINATION:

This is an appeal by Top Cap against an Adjudication Officer’s Decision ADJ-00026842 given under the Organisation of Working Time Act ,1997 (the Act) in a claim by Jean Gillespie that she did not receive breaks in accordance with section 12 of the Act. The Adjudication Officer found that the claim was well founded and awarded compensation of €11,180.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Jean Gillespie is referred to as the Complainant and Top Cap are referred to as the Respondent.

Background

The Complainant was employed as an Office Manager with the Respondent from the 1st November 2016 until her dismissal on the 4^thDecember 2019. The parties knew each other prior to the commencement of the employment relationship. The Complainant initially worked from home and then moved into an office space that the Respondent rented. The office space was about 5km from the Complainant’s home. The complaint was lodged with the WRC on the 28^thJanuary 2020. The cognisable period for the purpose of the Act is 29^thJuly 2019 to the date her employment ceased 4^thDecember 2019. The Court also noted that the Complainant was on certified sick leave from the 19^thNovember 2019 to the end of her employment.

Complainant’s case.

It was the Complainant’s case that she did not receive breaks in accordance with section 12 of the Act. While the Respondent had provided text messages indicating that she had gone to the shop to get her lunch, or collect her child at lunch time, this did not demonstrate that she had received her proper entitlement to lunch breaks. The Respondent is obliged under section 25 of the Act to keep records showing compliance with the Act. The Respondent had not provided any records demonstrating that the Complainant had received the appropriate breaks.

Respondent’s case

The Respondent submitted that the appropriate reference period for this claim is 29^thJuly 2019 to the 28^thJanuary 2020. The Respondent also submitted that the Complainant did get lunch breaks and while they did not have formal records to support that contention, they drew the Court attention to a number of text messages from the Complainant during the cognisable period where she indicates that she is taking a break.

The Law

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 insubsection (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 undersubsection (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 insubsection (1)or(2).

Records.

25.— (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2)……

(3)……..

(4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Discussion

As set out in Section 25 (4) of the Act, where an employer fails to keep records in respect of his compliance with the Act the onus of proving compliance lies with the employer. In this case the Respondent was not able to prove compliance and therefore the appeal must fail.

Determination

The Court determines that the appeal fails, and that the Respondent should pay to the Complainant a sum of €3,000 in compensation for the breaches during the cognisable period as set out above. The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
19 July, 2021	Deputy Chairman