Complainant

Respondent

Anonymised Parties

A complainant

A transport company

Representatives

self 

  Brendan McCarthy,

Stratis Consulting

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-00036068-001

08/05/2020

The complainant was employed in the control room of the respondent transport company and was paid a salary of €42,000 p.a. for a 38-hour week.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered  to hold remote hearings.

The complaint relates to the hours of work and breaks given during the period 26 August 2019 and January 2020.  The complainant submitted that he was not afforded any breaks to which he was entitled during this period.

The respondent accepted that they did not maintain the correct records for the period up to December 2019.  The respondent indicated that the WRC conducted an inspection and issued a Contravention Notice to the employer. The respondent indicated that all areas were compliant save for the administration and office areas.

The respondent submitted that it cannot prove that the complainant did not receive his full break entitlement during the period complained of as no records were kept. However, it noted that when it interviewed other controllers (who were not identified nor present at the hearing), there was an indication that the complainant took some breaks.

The respondent indicated that during the period in question, no break times were specifically rostered but denied that no breaks were taken by the complainant.  The respondent also submitted that it is not credible that someone would work for that period of time without ever taking any break.

As the complainant’s submission was made on 8 May 2020 and the legislation permits me to consider the 6-month period prior to the submission date.  In this regard Section 41(6) of the Workplace Relations Act 2015 states that “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”  Accordingly, I conclude that I am only permitted to consider the period from 9 November 2019 to January 2020 in relation to this complaint.

Section 12 of the Organisation of Working time Act, 1997 states 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).

The complainant’s contention is that this Section was not adhered to and the respondent has not produced any evidence to refute that contention. In addition, the fact that the respondent admitted that there were no rostered breaks during the period lends credibility to the argument that the complainant did not receive all the rests and intervals to which he was entitled.  Therefore, I find that this complaint is well founded.

Arising from my findings and conclusions in relation to this matter, my decision is to award the complainant the amount of €1000 compensation, which I consider to be just and equitable in all the circumstances.

Organisation of Woking time, rostered breaks, lack of documentation