Complainant

Respondent

Anonymised Parties

Director of Sales

A Hotel

Representatives

James McEvoy, Employee Consultant

Ciaran Loughran, IBEC

Act

Complaint 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-00035204-001

12/03/2020

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

CA-00035204-002

12/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035204-003

12/03/2020

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

CA-00035204-004

12/03/2020

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

CA-00035204-005

12/03/2020

The complainant was employed by the respondent as Director of Sales on the 24th of September 2019 and he resigned from his employment on the 9th of January 2020. He received an annual salary of €60,000. He is claiming that he did not receive a contract of employment in accordance with the Terms of Employment (Information Act) 1994, that he did not receive Sunday premium pay and rest period and breaks in accordance with the Organisation of Working Time Act 1997 and he is claiming overtime payments under the Payment of Wages Act, 1991.

The Complainant said that he commenced employment with the Respondent on 24th September 2019, in the role of Director of Sales, reporting directly to the General Manger. He said he worked in a start-up situation. He is an experienced professional with over 30 years experience in Sales; he had no particular difficulties in executing his responsibilities, however a difficult relationship developed with the GM, there was no clear direction and there was an expectation to work excessive hour, without compensation and he resigned from the employment on the 9th January 2020.

The complainant said he was not provided with the core terms of employment and neither was he provided with a written statement of the main terms and conditions of employment as required by the legislation. He said during his employment he made several requests for his contract of employment, but he never received one. 

The complainant said he regularly worked more than 40 hours per week. He said he worked more than 10 hours per day, but he only got paid for the 8 1/2 hours. He said that the Respondent was obliged to keep records of the starting and finishing time but did not do so. Initially there was a copy book to log in and out and then a clock in system was introduced. He said he used intermittently but he was not required to use it.  He submitted photos to support his claim that he worked long hours on the 23rd October 2019 and from the 18th to the 20th of November 2019.  He is seeking payment of overtime in respect of these hours. He is claiming 10 hours overtime per week for 15 weeks.

The complainant said that during his period of employment he worked five Sundays for which she received no premium pay or time in lieu. He said he was required to attend work on Sunday the 6th of October before the hotel opened and he was told by the general manager that he would get time in lieu. On The 17th of November he had to entertain clients, on the 1st December he had to fly to Newcastle on company business and on the 8th and 15th of December both Sundays he attended work and he did not get any premium pay for these days.

The Complainant is also claiming that he did not receive breaks periods in accordance with the Organisation of Working Time Act 1997.

The Complainant commenced employment with the Respondent hotel on 24 September, as a Director of Sales and received a yearly salary of €60,000. The claimant’s role was crucial for the start-up hotel and was one of the most senior roles. As part of the senior management team and the due nature of the role he had the autonomy to set his own start and finish times. The claimant reported to the General Manager and to the management company.

Claims under the Terms of Employment (Information) Act, 1994.

CA-00035204-001

The respondent denies the claim under the Terms of Employment (Information) Act, 1994 that the Complainant did not receive a written contract/statement of terms before or during the course of his employment.

Section 3(1) of the Act states that ‘’An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing […]’’.

 The Complainant started employment with the respondent on 24 September 2019. An email, containing an offer letter and contract was issued by email to him on 29 October 2019. The Complainant was requested in the email to return a signed copy which he never did.

It was submitted that it is the Respondent’s position that it complied with section 3(1) of the Act as a signed copy of the contract by the Respondent was given to the Complainant within the required 2 month timeframe.

 CA-00035204-002

The Respondent refutes the claim under the Terms of Employment (Information) Act, 1994 that the Complainant did not receive details of the five core terms of his employment.

 Section 3(1A) of the Act states:

‘’Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week.”

The Complainant was recruited through an external recruitment agency. It was submitted that on the 9 September, the Respondent sent an offer of employment letter on the Complainant’s behalf to the recruitment agent. The Complainant signed the offer letter dated the 9th September on the same day and the signed copy was returned to the Respondent via the recruitment agency.

The offer letter set out the full name of the employer, the Complainant’s first name, the principal place of business, the salary and the number of hours reasonably expected to work on weekly basis. The Respondent acknowledges that the letter failed to mention the full name of the Complainant and the daily hours reasonably expected to work. It was submitted that the Respondent contends that the omittance of the Complainant’s full name was as a result of a clerical error.

In addition, the Respondent contends that due to a clerical error the letter failed to outline the daily working hours. This, however, was rectified in the employment contract.

It was submitted that the Respondent’s position is that in the majority it did comply with 3(1A) of the Terms of Employment (Information) Act, 1994.

Claim under the Payment of Wages Act: CA-00035204-003

The Respondent refutes the claim under the Payment of Wages Act and submitted that no unlawful deduction of wages has occurred in the Complainant’s renumeration as stated in the contract. At no point has the Complainant received a salary below his contractual salary which is clear from the written contract of employment and he was paid fully in line with his entitlements.

The Respondent submitted that the Complainant has failed to particularise on his claim form the date on which he claims alleged breaches of the Act occurred. In his complaint form he states:  ‘’There was one occasion on which I commenced work at 9.00am and finished at 3.20am, the following day. ‘’The Complainant’s submissions, in support of his complaints, does not provide specific details of the complaint.

The Respondent believes that the only date during which they could presume the Complainant was working from 9am to 3.20am the following day would be a date in December (2nd or 3rd) during which the Complainant attended a conference in Newcastle as part of his duties. The conference consisted of several talks and networking followed by a dinner and a drinks reception.

The Respondent submitted that the OWTA defines working time as "any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

 b) carrying on or performing the activities or duties of his or her work,

The Respondent stated that at no point was the Complainant instructed by his employers to stay for the drinks reception. It was the Complainant’s own choice, and it is the Respondents position that following dinner, he was not at the respondent’s disposal nor was he performing the activities or duties of his work. That time spent by the claimant at the reception was purely of a social nature and could not be considered working time.

Furthermore, the Complainant travelled home on Wednesday 4 December, got paid for the full day and was not required to report to work until the following day.

The Complainant has provided screenshots from 18 November, 19 November and 20 November as evidence he had to work long hours on those dates.  The Respondent rejects this contention. The International Hotel Group which owns the Respondent Hotel had a familiarisation trip for their key accounts in Dublin that week and the directors organised events for the guests.

The Respondent’s hotel assisted with local knowledge, recommendations, and attractions. Any events that were attended by the Complainant and other colleagues were at the invitation of the International Hotel Group were entirely voluntary and unknown to the Respondent.  It is the respondent’s position that there was no requirement him to attend the events 18-20 November and these events could not be classed as working time.

Without prejudice to the above, even if those hours could be deemed as working time, the Complainant’s contract states that ‘’The Company may require you to perform a reasonable amount of work out with your normal hours of work, depending on the needs of the business. You are not entitled to receive additional payment for this work.’’ The wording of the contract is clear that no additional payment would be due for reasonable number of hours performed outside of normal working hours.

The Respondent rejects the Complainant’s claim for overtime of 2 hours per day because he claims he regularly worked more than the agreed 40 hour per weeks. It was submitted that the Complainant must clarify the exact reference period, dates, times etc. so that the Respondent can re-check its records.

The respondent had a time and attendance system in place which the claimant used on occasion to record his start and finish times. Due to the nature of the Complainant’s role the start times varied, but the available records show that the start times usually fell between 8 and 9 am. and based on the available records he usually finished work between 17.00 and 18.00.

Furthermore, it was submitted that the complainant’s contract of employment states ‘’The Company may require you to perform a reasonable amount of work out with your normal hours of work, depending on the needs of the business. You are not entitled to receive additional payment for this work.’’ Due tothe nature of the role and the fact the hotel was in its start-up phase occasionaladditional hours were envisaged. The contract, however, was clear that the need toperform additional duties outside of working hours was taken into account whensetting the rate. It is therefore the respondent’s position that the Complainant alwaysreceived remuneration in line with his contract of employment and that no unlawfuldeduction occurred.

Claim under the Organisation of Working Time Act

Regarding the two claims under the Organisation of Working Time Act, 1997 (OWTA), the Respondent denies that there has been any breach of the legislation.

CA-00035204-004  Sunday Work

The Complainant is claiming apremium for hours worked on Sundays.

Section 14 of the OWTA states: “(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 Respondent submitted that it is only where the need to work a Sunday is not taken into account when determining an employee’s rate of pay would an employee be entitled to compensation as outlined in point (a) to (d) of the aforementioned section of the OWTA. The Respondent said that in a copy of the Complainant’s terms and conditions of employment provided to him, it was outlined that:

’’Your annual salary takes account of the fact that you may be required to work on a Sunday for which you will not receive any additionalpayment.’’.

The Respondent’s submitted that the contract clause clearly outlines that the need to work Sundays was taken into account when determining the rate of pay and is in line with section 14 (1) of the Act and therefore, no additional compensation is due.

In the case of Sofia Kolesnik and Natalia Alfimova v Trinity Leisure Holdings LimitedTrading as Trinity City Hotel [2019] IEHC 654 the High Court allowed the employers appeal, revising the Labour Court’s decision and dismissing the appellants Sunday work claim. The HC ruled that the Labour Court was incorrect in finding that no evidence was adduced about the Sunday premium by reason of the fact the contract of employment was adduced in evidence and provided an express provision that the rate of pay provided for the need to work Sundays. The contract contained the following clause ‘’includes your Sunday Premium based on you getting every Sunday off (i.e. you worktwo Sundays out of three)’’. The High Court noted that ‘’ the language used in the contracts is plain English and cannot be clearer’’.  In addition, the Labour Court misinterpreted the 1997 Act by creating an employer duty “to explain by way of a breakdown any statementto the effect that an hourly rate takes into account the obligation to work on a Sunday”. 

Mr Justice Binchy states that : “While a statement in contract that the rate of pay takes account of the requirement to work on Sundays may not always be conclusive, if an employee wishes to assert that the rate of pay does not do so, then, in my opinion, he/she must advance some credible evidence to rebut the express provision of the employment contract or at least so as to shift the onus of proof in the matter to the employer although he or she will have to overcome the parole evidence rule.”

He goes on to say that: “…an employee advancing a claim under Section 14 (1) of the Act must lead some evidence to explain why he/she claims that what is stated in the contract is not correct..”

It is submitted that the Complainant in this case has not adduced any evidence to rebut the express provision of the employment contract. In this case, there is a clear and unequivocal statement in the contract of employment that a need to work a Sunday is incorporated into the rate of pay. In the circumstances, the complaint must fail.

 CA-00035204-005 Breaks

 The Complainant alleged that the respondent was in breach of the OWT Act it was not always possible for him to take his breaks.

The Act at point 3(2)(c) states ‘’ Subject to subsection (4), Part II shall not apply to-

(c) a person the duration of whose working time (saving any minimum period of such time thatis stipulated by the employer) is determined by himself or herself, whether or not provision forthe making of such determination by that person is made by his or her contract of employment.

The Respondent submitted that part II the 1997 Act and S.I. No. 473 of 2001 does not apply to the Complainant as he had the autonomy to set his own start and finish time and managed his own breaks.

Although the claimant’s contract outlined ‘’ Your normal hours of work are 40 hours per week, 8 hours per day/shift and are those necessary to carry out your duties as a Director of Sales and would be expected to be worked across 5 days over every 7.’’

As a director of sales, the Complainant was free to determine his daily start and finish times, which he often did. In addition, the contract also outlined that ‘’ You are entitled to take rest breaks and should ensure that these are factored into your working day, these are inclusive in your pay’’.

 It was submitted that as the director of sales, the Complainant was responsible for interstate and brand sales initiatives, maintaining a willing sales culture and developing strategic plans plus other duties. The role required flexibility which was explained clearly to the Complainant during the interview and was evident in his job description.

 Another integral part of the role was willingness to travel, presenting to perspective partner organisations, meeting, and entertaining clients and attending events and conferences. The Complainant did not have set ‘’day to day’’ tasks and had the flexibility and autonomy to work his timetable around the prospective clients and his other responsibilities.

It is the Respondent’s contention that the Complainant was under a duty to ensure that (i) the hours he rostered himself to work, and actually worked, were in compliance with the 1997 Act, and (ii) he took breaks in accordance with the 1997 Act during his workday. The Respondent was therefore under no obligation to record the rest breaks pursuant to section 3(2)(c) of the Organisation of Working Time Act,1997.

Without prejudice to the above it is the Respondent’s position is that the Complainant has failed to particularise on his claim form the dates on which he claims alleged breaches of the 1997 Act, or file submissions in support of his complaints, and the Respondent is thereby prejudiced in its defence of these complaints.

 The Labour Court in ISS Limited v Zhivko Mitsov (and 3 others), DWT1159, held that the evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. The Labour Court stated in this case that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet. The Labour Court stated that this had been pointed out by Lord Devlin in Bratty v Attorney General for NorthernIreland [1963] A.C. 386 is satisfied where the evidence adduced is sufficient to “suggesta reasonable possibility.”

The legal burden will then shift to the Respondent to prove on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant, if the respondent fails to discharge that burden the claim will succeed. It is the Respondent’s position that the Complainant in the current case has failed to satisfy the evidential burden.

Furthermore, the Respondent has also procedures in place to ensure that employees received proper breaks during the workday. The Complainant was advised in his contract that his rest arrangements will be given in line with the OWTA. In addition, the contract outlined ‘’ You are entitled to take rest breaks and should ensure that these are factored intoyour working day, these are inclusive in your pay.’’ clearly showing that the onus was on the Complainant to ensure rest breaks were taken.

The Respondent had a time and attendance system to support company procedures in place for implementing and monitoring the organisations legislative requirements in respect of the Organisation of Working Time Act, 1997. In addition, during a management meeting on 5 December that the Complainant attended, where the operations manager highlighted the importance of using the system to record breaks. Should the Complainant have had any issue with inability to take breaks he could have raised it with the operations manager.

Furthermore, if the Complainant was not in a position to take a break, an alternative break could have been taken. The Complainant’s contract outlined ‘’ Where you do not get an opportunity to take your break(s), you will be entitled to avail of compensatory rest in an adjacenttimeframe but must use these up within the same working week.’’

The Respondent was never advised by the Complainant that he was unable to or prevented from taking breaks, and accordingly the respondent was unaware of any difficulty in this regard.

CA-00035204-001 Terms of Employment (Information) Act 1994

The Complainant said that he did not get a contract of employment. The Respondent states that his contract of employment was emailed to him on the 29th October 2019.

Section 3— (1) provides:  “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, …….”

I note the contract was drawn up and issued by the management company by email with a cover letter to the Complainant on the 29th October 2019. I note that the GM said in evidence that she received her contract from the management company around the same time and that the Complainant confirmed to her that he had received the contract. I also note from the evidence of the Employee Relations Manager that he understood from the Complainant that he had a copy of the contract. I am satisfied therefore that the contract was issued by email was received by the Complainant.

I find that this complaint is not well founded.

CA-00035204-002 Terms of Employment (Information) Act 1994.

The Complainant claims that the Respondent failed to provide him with the core terms of employment within 5 working days in accordance with the terms of the Act. The Respondent’s case is that the Complainant was given an offer letter dated the 9th September 2019 which set out the details of his employment and mostly complied with S 3(1A). The omission of the Complainant’s surname and the daily working hours was due to a clerical error and this was corrected in the contract of employment 

Section 3(1A) provides: “Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee ’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000:

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week.

 (1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.”

I note that the offer letter of the 9th September 2019 was signed and dated by the Complainant. I am satisfied therefore that the Complainant received this letter. I am also satisfied that the letter contains most of the information which the Respondent is obliged to provide to the Complainant pursuant to S. 3(1A). I am also satisfied that the omission of the Complainant’s full name and the daily working hours was due to a clerical error and S.3(1B) applies.

I find therefore that this complaint is not well founded.

CA-00035204-003 Payment of Wages Act 1991

The Complainant is claiming that he worked more than 40 hours most weeks during his employment and was not paid overtime. He is claiming that he is owed 10 hours overtime payments per week for 15 weeks.  He also said that he had to work late on a number of specific dates in November and December. The Respondent denies that the Complainant is entitled to overtime.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee…)

I note that the time attendance sheets produced in evidence by the Respondent shows that the Complainant either worked from 8am to 5pm or 9am to 6pm and there is no indication from these records that he worked an extra 2 hours every day. I also note that the Complainant’s contract of employment provided that he may have to do work outside the normal hours depending on the needs of the business for which he would not be entitled to an additional payment.

In relation to the claim for overtime for a conference in Newcastle on the 2nd and 3rd December, I note that the Complainant attended a drinks reception following the conference dinner. I am satisfied that he has no claim for overtime in respect of attending a social event as there was no requirement by the employer for him to attend this event.

I also note that the claim for overtime for attending events from the 18th to the 20th of November arose from an invitation from the Respondent’s International Hotel Company to these events, which the Complainant accepted. The Respondent’s evidence is that they did not require the Complainant to attend any of these events. I am not satisfied that the Complainant has established any entitlement to overtime for attending these events.

I find therefore that the claim for overtime payments in respect of the above is not well founded.

CA-00035204-004  Organisation of Working Time Act 1997

The Complainant said that he was not paid a premium for working on 5 Sundays and given time in lieu for other 2 Sundays. The Respondent said that the Complainant is not entitled to additional compensation for working on Sundays as his contract provides for working on Sundays and this fact was taken into account when determining his rate of pay.

Section 14 of the OWTA states: “(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 Respondent submitted that it is only where the need to work a Sunday is not taken into account when determining an employee’s rate of pay would an employee be entitled to compensation as outlined in point (a) to (d) of the aforementioned section of the OWTA. The respondent said that in a copy of the Complainant’s terms and conditions of Employment provided to him, it was outlined that

’’Your annual salary takes account of the fact that you may be required to work on a Sunday for which you will not receive any additionalpayment.’’.

 It is the respondent’s position that the contract clause clearly outlines that the need to work Sundays and it was taken into account when determining the rate of pay and is in line with section 14 (1) of the Act and therefore, no additional compensation is due. I was referred to the High Court judgement in the case of Sofia Kolesnik and Natalia Alfimova v Trinity Leisure Holdings LimitedTrading as Trinity City Hotel [2019] IEHC 654. The HC overturned the Labour Courts decision and held that the rate of pay included the Sunday premium and stated that “the language used in the contracts is plain English and cannot be more clear”

The matter I must consider is whether Sunday work was taken into account when the Respondent was determining the Complainant’s salary.

I note that the contract of employment provides under hours of work the following:

’’Your annual salary takes account of the fact that you may be required to work on a Sunday for which you will not receive any additionalpayment.’’.

The contract clearly sets out that there was no entitlement to additional payments for Sunday work.  I am satisfied therefore that the Complainant was not entitled to a payment in accordance with Section 14 of the Act 

I find that this complaint is not well founded.

 CA-00035204-005 Breaks - Organisation of Working Time Act 1997

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).

(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).

The Complainant is claiming a breach of the Act in relation to breaks. He said it was not always possible to take breaks.  

The Respondent submitted that the Complainant as sales director was in a senior role and had autonomy to set his start and finish time, manage his break times, and had the flexibility and autonomy to set and work his daily timetable and responsibilities. Therefore, the Respondent was not required to record the rest breaks pursuant to section 3(2)(c) of the Organisation of Working Time Act,1997 and S.I. 473/2001.

Section 25(1) OWTA provides for the employer to record and retain records of breaks subject to exemptions contained in SI 473/2001 which provides:

Exemption from section 25(1).

 5.(1) “For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks -

(a)   employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities,”

I note that the Respondent had an electronic clock in and out system which included the recording of breaks. The Complainant said that he only used it intermittently as he was not required to do so. 

I note that the contract of employment under hours of work provided that his rest would be in line with the OWTA and stated: “You are entitled to take rest breaks and should ensure that these are factored into your working day, these are inclusive in your pay’’.

I note that the Complainant attended a management meeting on the 5th December and the importance of using the electronic clock for recording breaks was emphasised. I am satisfied that the Complainant occupied a senior role in the company reporting to the GM and with autonomy to organise his work and it was up to him to factor in breaks into his working day, record his breaks and to bring it to the attention of the GM if he was not getting his breaks.

The Complainant did not put forward any dates when he did not get the breaks other than claiming compensation for 3 breaks per week by 15 weeks. The Respondent submitted that the Complainant was seen regularly taking his breaks with 2 colleagues.

I was referred to the Labour Court case in ISS Limited v Zhivko Mitsov (and 3 others), DWT1159 where it was held in a complaint in relation to S. 12 of the OWTA that the onus was first on the Complainant to put forward some evidence of non-compliance before the evidential burden shifts to the respondent.  

“the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility””

In the circumstances, I am satisfied that the Complainant has failed to discharge the burden of proof or to put forward any evidence to support his complaint that he did not get breaks. 

Therefore, I find for all of the above reasons that this complaint is not well founded.

CA-00035204-001 Terms of Employment (Information) Act 1994

I find that this complaint pursuant to S. 3(1) is not well founded.

CA-00035204-002 Terms of Employment (Information) Act 1994

I find that this complaint pursuant to S. 3(1A) is not well founded.

CA-00035204-003 Payment of Wages Act 1991

I find that this complaint pursuant to S. 5(1) is not well founded.

CA-00035204-004 Sunday Premium Organisation of Working Time Act 1997

I find that this complaint pursuant to S. 14 is not well founded.

CA-00035204-005 Breaks Organisation of Working Time Act 1997

I find that this complaint pursuant to S. 12 is not well founded.

Terms of Employment (Information) Act 1994, Contract of Employment S.3(1) and 3(1A) -  Payment of Wages Act 1991, Overtime - Sunday Premium Organisation of Working Time Act 1997, Sunday Premium and Breaks S. 12 and S. 14.