FULL RECOMMENDATION
PARTIES : VERVE MARKETING LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00029223 CA-00038618-005-021, 024-045 This is an appeal by Ms Sandra Blakeney (‘the Complainant’) from a number of decisions of an Adjudication Officer (ADJ-00029223; CA-00038618-005 to -045, dated 26 July 2021) under the Organisation of Working Time Act 1997 (‘the Act’). The Adjudication Officer decided that the complaints under the Act were not well-founded. The Complainant’s Notice of Appeal was received by the Court on 3 August 2021. The Court heard the appeal in Dublin (in conjunction with a related appeal under the Terms of Employment (Information) Act 1994) on 14 October 2021 (TE/21/20). The Complainant commenced employment with Verve Marketing Limited (‘the Respondent’) on 13 June 2017 as a Senior Account Manager. She received a contract of employment dated 18 July 2017 and a revised contract on 2 February 2019. She was paid an annual salary of €55,000.00. The Complainant and her colleagues commenced remote working on Friday 13 March 2020. With effect from 30 June 2020, the Complainant was placed on temporary lay-off due to a downturn in the Respondent’s business because of the pandemic. She commenced employment elsewhere in September 2020. The Complainant referred her complaints under the Act to the Workplace Relations Commission on 8 July 2020. The period to which the complaints relate commences on 9 January 2020. The Complainant told the Court that her work pattern changed once she started working from home on 13 March 2020 and that, therefore, her appeal in relation to the Respondent’s alleged non-compliance with section 12 of the Act relates only to the period 9 January 2020 to 12 March 2020 i.e. a period of approximately 3 months. The relevant claims that are, therefore, in scope for the purposes of this appeal bear the following reference numbers: CA-00038618-005 to -014. The Complainant’s Evidence The Complainant told the Court that her normal daily starting time when working for the Respondent was 9.00 am. Her finishing time, however, varied considerably. If in the office, she said she finished typically at 6.00 pm or 6.30 pm. If she had to attend an event for a client, it could be anywhere between 8.00 pm and 10.00 pm as she was required to remain on-site until all vendors had collected their equipment. The Complainant said that she did not get a rest break during the working day on three to four days per week. Once or twice per week she took 15 minutes to get a coffee from the nearby coffee shop. She regularly brought a pre-prepared lunch to work with her which she ate while working at her desk. She said that when she was working at a client’s site she was typically on the go all day without a break. Finally, in direct examination, she told the Court that she had never been paid in advance for annual leave. Under cross-examination, the Complainant accepted that she was required to be flexible with regards to her working hours having regard to the nature of her employment i.e. events management. She said that she accepted that the job necessarily involved attending events in the evenings and occasionally at weekends but that she was also worked her full day from 9.00 am to 6.00 or 6.30 pm. The Respondent’s Solicitor also put it to the Complainant that the Respondent operated a time-off-in-lieu (TOIL) system. The Complainant accepted this was the case but said that it was available only where somebody had worked a weekend. The Complainant was directed to page 23 of the Respondent’s Employee Handbook where the TOIL arrangements are set out and appear to provide that TOIL can be availed of in respect of evening hours worked also. The Respondent’s Solicitor then asked the client if she had attended the gym during lunch breaks while working for the Respondent. The Complainant replied that she had done so regularly when she commenced her employment but in the period in question (January to March 2020) she had only done so once or twice. In response to further questions from the Respondent’s Solicitor, the Complainant confirmed that she had never raised a complaint with the Respondent about the lack of breaks during the working day. She also stated that she had never been told that she couldn’t avail herself of such breaks and was never prevented from taking a break. Evidence of Mr Craig Cusack This witness is currently employed as Business Director with the Respondent. He previously worked at the same level as the Complainant. The witness described the open-plan nature of the Respondent’s office and the various facilities there including two kitchens and coffee docks, multiple water coolers and open-plan loft area where colleagues can congregate and converse. He told the Court that his experience is that standard lunch break time is between 1.00 and 2.00 pm but that breaks and lunch breaks are not rigidly structured in the Respondent’s office as people tend to take their breaks or go for a coffee when it is convenient for them or when they are hungry. He and other colleagues regularly go to the gym at lunch time. He sometimes takes his lunch at his desk but when he does so he reads theDaily Mail. In short, the witness described an arrangement with regard to breaks as one that is unstructured and open. He said it was a case of each employee taking personal responsibility for managing their workflow. He also told the Court that the Respondent facilitated on-site Pilates and gym classes and provided lunches on Fridays to employees. The witness was asked about records of the Complainant’s worked hours that were before the Court. Initially, by his responses he led the Court to believe that the records were solely for the purpose of recording billable hours and that each executive had to achieve a target of 7.5 billable hours per day. This prompted the Court to enquire how many actual hours an executive would have to work to achieve that target to which the witness replied 9 to 9.5 hours. (He subsequently revised his description of the nature of the records opened to the Court when redirected by the Respondent’s Solicitor. At that point he clarified that the records are not solely billable hours but also include time spent by the executive on administrative tasks.) Finally, in direct examination, he told the Court that he had often seen the Complainant go out for lunch with her boyfriend and attend the gym during lunch tine on other occasions. He couldn’t give specific information in relation to how often she may have done so in the period under examination. Under cross-examination, the witness was asked whether as a manager he knew what statutory rest breaks his reports were entitled to. He replied that he didn’t. He was also asked how did he ensure that they got their breaks. He referred to the TOIL scheme. His evidence in this regard contradicted that of the Complainant. According to the witness TOIL could be claimed for evening work as well as weekend work. He also disagreed with the Complainant’s estimate of the amount of time a Senior Events Executive tends to spend on clients’ sites. In his experience, it was far less than had been suggested by the Complainant in her evidence. Submissions The Respondent’s Solicitor accepted that the Respondent does not keep records of breaks taken by employees during the working day. He also accepted that the Respondent doesn’t ordinarily pay employees for periods of annual leave in advance. He told the Court that the nature of the Respondent’s business is free-flowing and ad hoc and the majority of employees are creative in temperament and that if the Respondent were to place strict limits around the timing of rest breaks this would result in a loss of staff. The Complainant’s Solicitor submitted that Mr Cusack’s evidence with regard to his lack of knowledge about his team members’ statutory break entitlements reflects the attitude that prevails in the events industry. However, he said, there is no statutory exemption from the requirements of the Act for this industry. He further submitted that the Respondent’s sophisticated billing system could have been used to maintain records of breaks taken by its employees. Having regard to the Respondent’s failure to record rest breaks, and its consequent disregard for employees’ health and safety, Mr Grogan urged the Court to apply what he termed the Von Colsen and Kaman principles when determing the appropriate level of compensation payable to the Complainant. He also urged the Court to give a direction to the Respondent in relation to compliance into the future. Complaint re Advance Payment for Annual Leave The Complainant gave no evidence of having availed herself of annual leave during the period comprehended by the within claims. It follows, therefore, that this aspect of her appeal is not well-founded and fails. The decision of the Adjudication Officer is upheld. Discussion and Decision regarding Non-Compliance with Section 12 of the Act The Court finds that the Complainant has particularised her complaint regarding the absence for rest breaks during the working day in respect of the period covered by CA-00038618-005 to -014. The Respondent admits that it has not maintained records of the rest breaks taken by the Complainant in the relevant period. In the absence of such records, the Respondent seeks to rely on evidence a colleague of the Complainant’s in relation to the breaks he typically avails himself of and the culture generally in the Respondent’s workplace vis-á-vis daily rest breaks. The witness was not able to give detailed or particularised evidence in relation to the Complainant’s breaks in the period in question. It follows, therefore, in all the circumstances – the Court having found the Complainant’s account of her working patterns to be reliable and credible – that the Respondent has not discharged the burden of proof on it to demonstrate its compliance with section 12 of the Act with regard to the Complaint in the period in question. The appeal, therefore, succeeds. The Court measures the appropriate compensation payable to the Complainant at €1,000.00. The decision of the Adjudication Officer is set aside. The Court so determines.
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