ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00029612

Parties:

Complaint(s):

Date of Adjudication Hearing:  19/02/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure: In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

This complaint from a Cashier/Customer Assistant who worked at a convenience store (the Respondent) for almost one year refers to alleged breaches in his payment of wages and of his entitlements to daily rest breaks and intervals at work breaks.

Summary of Complainant’s Case:

CA-00040077-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

The complaint submitted that after handing in his resignation he did not receive his last week pay until he pursued it for a number of weeks.  He maintained that he had text and WhatsApp the Respondent for the payment but despite commitments he did not receive the payment.  The Complainant also submitted he was taken off the WhatsApp group and he felt this was an attempt by the Respondent to avoid paying him for his final week of work.  The Complainant also attended the workplace to receive payment where the wages were not left for him despite a commitment, he understood he had received from the Respondent. Eventually he received the payment on 29th September 2019, two weeks late, but only after he was required to sign attendance sheets which he maintained he was requited to do under duress.

CA-00040077-002 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

The Complainant submitted that he was required to work on days where he did not receive an 11 hours daily rest break from the previous day.  He maintained this occurred every other week. In these circumstances he would have finished work at 10pm in the evening, or shortly thereafter, and was rostered to attend work the following day at 7am.  This he submitted allowed him only 9 hours rest period between work shifts. The Complainant maintained he would be tired when returning to work without availing of his daily rest break. He did not receive compensatory rest for missing these rest periods.

The Complainant submitted this occurred on 9 occasions in the six months  prior to submitting his complaint to the WRC and provided signed worksheets for these events.

CA-00040077-003 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

The Complainant submitted that during the Covid-19 lockdown when the deli Counter was closed there was only one person in the shop.  This meant he could not take his daily intervals at work for 15 minutes after working 4.5 hours. 

CA-00040077-004 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

The Complainant submitted that he was required to start 10 to 15 minutes work before 7am in the morning and not finish work until about 10 minutes after 10 pm in the evening, but that he was not paid for this working time. He maintained that the shop had to be opened by 7am in the morning which meant opening having to get the shop ready before then. In the evening after 10pm he had to cash up, close the ATM machine, and clean-up which could take 10 to 15 minutes.  He confirmed that whilst he would have signed the time sheets stating he started at 7am and finished at 10pm he understood if he did not do this he would not have been paid. The Complainant maintained that he was not aware of the implications of signing the timesheets as it was never explained to him.

Summary of Respondent’s Case:

CA-00040077-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

The Respondent submitted that the Complainant was paid for his last week of work and this matter should be deemed closed. The Respondent acknowledged there were delays in paying the Complainant and apologised for these unintentional delays.

CA-00040077-002 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

The Respondent advised that the Complainant would have been occasionally rostered for work where he did not receive his 11-hour daily rest break.  It maintained this only occurred on six occasions during the Respondent’s employment and submitted signed time sheets to that effect. The Respondent also submitted that on one occasion, on 4th June 2020, this occurred to accommodate another employee and the Complainant agreed to that.

The Respondent did acknowledge the breeches occurred on the other five occasions. Whilst the Respondent accepted the breaches, it maintained the Complainant never raised them as an issue at the time. The Respondent noted during the summer 2020 they were managing within the Covid-19 restrictions, ahd explained this to staff, and had understood the staff were supportive of the particular circumstances that prevailed at this time.

CA-00040077-003 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

The Respondent submitted signed time sheets which it contended demonstrated that at least two people, if not three were in attendance at all times.  The Respondent denied the Complainant was not provided with the opportunity to take his intervals at work breaks and that the Complainant never raised this as an issue at the time.

CA-00040077-004 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

The Respondent denied that the Complainant was required to work extra time unpaid.  It maintained the shop could be opened and be ready to operate at 7am.  Similarly, it denied the Complainant was required to work after hours in the evening and not get paid.  The Respondent submitted that cashing up normally took place in the evening just before 10pm, and that was the last action required before the shop was closed and the Complainant could leave.

The Respondent acknowledged that the alarm would record the time the shop was closed, and the till records would show the time of cashing up. Following the hearing the Respondent was not in a position to  provide any records regarding the time the alarm was activated as the records are only retained for a limited period, nor did it provide cash reconciliation logs despite being provided with the opportunity to provide same post the hearing.

Findings and Conclusions:

CA-00040077-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
• (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
• (c) in the case of a deduction, the employee has given his prior consent in writing to it.

In this case the Complainant was entitled to be paid on the last day of his employment, and receive that payment in the manner that he was  typically paid, that is at the end of his week in arrears and to his bank account.  It is not contested that the Complainant did not receive his payment of wages in this manner, and it took him a further two weeks before that payment was made. The Complainant stated he needed the money and had to make a number of attempts to be paid. 

I find the Complainant is well founded and I uphold that the Respondent wrongfully deducted a week’s salary from the Complainant for his last week of work and waited for two weeks before properly making that payment.  

CA-00040077-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

In accordance with Section 11 of the Organisation of Working Time Act 1997, an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

In this case the Complainant submitted that on some nine occasions between  3rd June 2020 and 18th August 2020, a period of 12 weeks, he finished work at 10pm and was rostered for and attended work the following morning at 7am.  On these occasions he could not avail of his daily rest periods, or no was he offered compensatory rest for missing these breaks. The Respondent acknowledged this would have occurred.

On that basis I find the complaint is well founded and uphold the complaint that the Complainant was not provided with the opportunity to take an 11 hour daily rest period on 9 occasions.

CA-00040077-003 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

In accordance with Section 12 of the Organisation of Working Time Act 1997, (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).

Having considered the evidence submitted, and where the records provided support that at least two staff attended the workplace at all times when the Complainant was working, I do not uphold that the Complainant was prevented from being allowed take his rest and intervals at work breaks.

I therefore do not find that the Respondent was in breach of Section 12 of the Act.

CA-00040077-004 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

The obligations on the employer in accordance with Section 5 of the Act are set out under complaint 0001 above.

Having considered the evidence I find that when the Complainant was rostered for a 7am start in the morning he was required on average to be in attendance at work approximately 10 minutes before the shop opened to prepare the shop for trade.  He was not paid for this work. Based on the records presented I find in the six months prior to submitting his complaint this occurred on 12 occasions.

I also find that when the Complainant was rostered for a 10pm finish in the evenings he was required on average to be in attendance at work for approximately 10 minutes after the shop ceased trading to make the shop safe when it finished trading. He was not paid for this work. Based on the records presented I find in the six months prior to submitting his complaint this occurred on 30 occasions

I therefore find the Complainant was required to work for approximately 5 hours unpaid, and contrary to Section 5 of the Act, the Respondent unlawfully deducted payment of wages from the Complainant for these hours.  I therefore find the complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00040077-001 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of one week’s wages after the making of any lawful deduction.

CA-00040077-002 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to a contravention under Section 11 of that Act.

In accordance with S27(3) of the Act, as I have found the Respondent in contravention of Section 11 of the Act, I require the employer to comply with the relevant provision and ensure all staff are entitled to their Daily Rest Break and to advice all management, supervisors and staff of this entitlement without delay. I further require the employer to pay the employee compensation of two week’s wages as is just and equitable having regard to all of the circumstances. .

CA-00040077-003 Complaint under section 27 of the Organisation of Working Time Act, 1997                                                            

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to a contravention under Section 12 the Act. As I have not found the Respondent is in breach of the Act in the areas complained of by the Complainant, I decide the complaint is not well founded.

CA-00040077-004 Complaint under section 6 of the Payment of Wages Act, 1991                                                                                      

Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of 6 hours pay after the making of any lawful deduction.

Dated: 26th May, 2021  

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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