Complainant

Respondent

Parties

Tristan  Shiels

Magic Hammer Events Ltd.

Representatives

  Self

Kevin Sherry Dermot G. O'Dovovan

Act

Complaint/Dispute 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-00036065-001

08/05/2020

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

CA-00036065-002

08/05/2020

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

CA-00036065-003

08/05/2020

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

CA-00036065-005

08/05/2020

The complainant worked as a photographer for the respondent who operates a “Santa’s Grotto Experience”.  He commenced employment on 22/11/2019 and ended on 23/12/2009.  He was paid €12 per hour.  The complainant submitted a number of complaints to the Workplace Relations Commission on 08/05/2020.  Two of the complaints were withdrawn by the complainant at the hearing:  CA-00036065-003 and CA-00036065-007.

The complainant is a photographer and commenced employment with the respondent on 22/11/2019 and was based at one of the respondent’s Santa’s Grotto Experience venues.

CA-00036065-001:  The complainant did not receive a contract of employment and did not receive any details in relation to his terms and conditions of employment.

CA-00036065-002:  The complainant was paid €12 per hour and did not receive any additional payment for working on a Sunday.  Sundays were the busiest days and he did not have any opportunity to negotiate additional payment for Sunday working.

CA-00036065-005:  The complainant did not get any breaks during the last three days of his employment.  This arose as another photographer left and he could not leave the “Grotto” area.  As a photographer he had to do additional duties in the sales area and assist in ensuring that the Grotto area was presentable for the next visit.  These visits took place on a seven-minute cycle and therefore there was no opportunity to take any breaks.  He mentioned this to his line manager, but it remained unchained.  There was a lot of heat in the area and no food of any substance was provided.  When he finished his employment on 23/12/2019 he was unwell during the Christmas period due to the lack of nourishment and stress.

The respondent operates a “Santa’s Grotto Experience” at various locations throughout Ireland.    The complainant was interviewed for the role in October 2019 and was subsequently offered the role of “Photographer/Photo Sales”.  This role was a short term, seasonal role and Sunday and week-end work were an integral part of the role.  Details of the role were formally issued to the complainant by e mail on 31/10/2019.  This e mail contained a link to a document which contained details of the terms and conditions and it make it clear that if the complainant should “print this email or otherwise save it to refer back to for any questions relation to your rate, payroll instructions and training information.”  This e mail made it clear that “if you have any questions at all before accepting this offer, please contact us directly at XXX”. [ mobile phone number].

CA-00036065-001:  The complainant confirmed his acceptance of the employment terms as of 31/10/2019.  The document contained within the e mail set out the hourly rate and the conditions of employment.  The complainant did not raise any issue or grievance in relation to his terms and conditions as set out prior to our during his terms of employment.

CA-00036065-002:  The complainant employed as a short-term casual employee.  The complainant’s hours were not fixed and at all times he was aware that Sunday working was a requirement.  At no stage did the complainant raise any query in relation to having to work Sunday hours.  The requirement to work on Sunday was taken into consideration in calculating the complainant’s remuneration which was set at €12 per hour.

CA-00036065-005:  The complainant was one of two photographers working at the respondent’s Grotto site.  The second photographer left at short notice.  The complainant indicated that he wished to avail of any and all the additional hours that were available.  The respondent had other photographers available in other locations who could have provided support at the complainant’s location.  The complainant’s request for additional hours was facilitated and therefore it was not necessary to engage the services of an additional photographer. The complainant was rostered for the additional shifts.  The respondent acknowledges that the event was busy, but it provided all staff with breaks throughout the day in accordance with Section 12 of the Organisation of Working Time Act, 1977.  Toilet facilitates were also available.  All staff working at the Grotto were allowed bring in refreshments.  The respondent also provided adequate supplies of drinking water and coffee and food provisions.  All staff were aware that they took their breaks when the opportunity arose.

CA-00036065-003 and CA-00036065-007:  Both of these complaints were withdrawn at the hearing.

CA-00036065-001:  The complainant submits that he did not receive a contract of employment any details in relation to his terms and conditions of employment.  The respondent submitted evidence of an e mail sent to the complainant with a link to the terms and conditions in relation to his employment.  Under cross examination the complainant confirmed that he did not use this link to review these terms and condition before accepting the post. He also confirmed that he did not raise any formal grievance in relation to any of his terms and conditions.

I am satisfied that the respondent provided details of the terms and conditions in relation to the role of photographer/photo sales to the complainant.  Some of these were also outlined at interview stage.  I note that the complainant did not raise any grievance in relation to his terms and conditions.  I accept that the respondent made the process of raising any queries and/or clarifications very clear in its e mail with the offer of employment made on 31/10/2019.

Based on the evidence provided I find that this complaint is not well founded.

CA-00036065-002:  The complainant was paid €12 per hour and submits did not receive any additional payment for working on a Sunday. He did not have any opportunity to negotiate additional payment for Sunday working.  The respondent is clear that the rate of pay of €12 per hour took into consideration the fact that the complainant would be required to work on a Sunday. 

The Law:

The Organisation of Working Time Act, 1977, in relevant part, states:

“14.-(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 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”.

I am satisfied that the complainant was at all times aware that the requirement to work on a Sunday was an integral part of his role with the respondent.  In his evidence he confirmed that Sunday was one of the busiest days at the Grotto.  The complainant also confirmed that he never raised an issue with the respondent in relation to Sunday pay.  I also note that he did not review his terms and conditions document prior to accepting the offer.  I accept the respondent’s submission that the hourly rate included a Sunday premium.  In that contact there is no legal obligation on the respondent to pay any additional Sunday premium.

CA-00036065-005:  The complainant submits that the manager “failed to find another team member to work on photography”.  He was then “tasked with remaining in the Grotto for the full day, with no breaks, no access to toilet facilities, no lunch.”  The respondent submits that they agreed to the complainant’s request to be given any additional shifts which arose when another photographer left the site. The respondent’s manager in evidence outlined the process for ensuring that there were adequate supplies of water and refreshments. The manager specifically outlined that that she encouraged a team approach to ensure that families had a positive experience in the Grotto.  All staff were aware of their entitlement to take breaks and were encouraged to do so when the opportunity arose.  She confirmed that no employee was ever denied a toilet break. She regularly enquired with staff if there were any issues and she assisted in the Grotto from time to time so as to ensure that it ran smoothly.  The manage confirmed that the complainant did raise an issue with her in relation to difficulties in taking his breaks.  She accepted that this arose because the Grotto was busy and that the complainant was now taking on some additional duties arising form the departure of the second photographer.  In her evidence the manager also confirmed that there were no complaints from any other employee in relation to breaks.  Many of these employees, including the second photographer, are returning for another season.

The Law:

The relevant extract from the Act is as follows:

“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)

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 those records shall be retained by the employer for at least 3 years from the date of their making.

(2) …

(3) …

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act …. 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.”

All workers are entitled to have breaks while they are at work.  The Organisation of Working Time Act, 1977 sets out employees statutory minimum entitlements for the working week, annual leave, night work, breaks and rest periods.  In general, a worker is entitled to a 15-minute break when you have worked 4.5 hours.  If a worker works more than 6 hours they are entitled to a 30-minute break, which can include the first 15-minute break.

The respondent provided a copy of the applicable roster to the hearing. However, no records were provided in relation to what breaks available to the complainant.  Mr A, a director with the respondent outlined that each Grotto experience took on average seven minutes and outlined that the photographer was not required for the first three minutes of this experience and this period would allow for breaks to be taken.

The complainant submitted that the issue of breaks took place over a period of three days; 21st -23rd December 2019.  His employment finished on 23/12/2019.  I find that the respondent has not provided evidence that the complainant was able to avail of his breaks on those dates.  The respondent accepts that work days at the event were busy.  I do not accept the respondent’s position that it is up to each employee to take their breaks whenever they could.  It is clear that there were days when it was difficult for the complainant to take any breaks that were available to him under the periods specified in the legislation. 

As the respondent did not facilitate the complainant with breaks and for failing to produce any records in relation to these matters this favours the complainant.  I therefore find that the respondent was in breach of the Organisation of Working Time Act

The period actually worked by the complainant was very short, the award of compensation is in part a deterrent to future breaches by the respondent and to encourage them to put appropriate measures in place. 

The compensation for these breaches of the Organisation of Working Time Act is €200.  If the complainant had worked longer than one-month period the award of compensation in relation to this complaint would be more substantial.

CA-00036065-001: I find that this complaint is not well founded.

CA-00036065-002: I find that this complaint is not well founded.

CA-00036065-005: I find that this complaint is well founded, and I award the complainant the sum of €200.

Terms and conditions of employment.  Sunday pay.  Work breaks.