ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044040

Parties:

	Complainant	Respondent
Anonymised Parties	A Beverage Manager	A Pub & Restaurant

Representatives

Self-Represented

Mr J Bolger ESA Consultants

Complaints:

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-00054528-003	17/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00054528-004	17/01/2023

Date of Adjudication Hearing: 30/08/2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994 andsection 27 of the Organisation of Working Time Act, 1997 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.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.

Following discussions, it was agreed that the Adjudication would be anonymised in view of the small nature of the industry and commercial sensitivities involved.

Background

The issues in contention concerned rest periods and daily work hours under the Organisation of Working Time Act,1997. A supplementary complaint relating to the interpretation of the Terms of Employment under the Terms of Employment (Information) Act, 1994 was also considered.

The Complainant was employed from the 9th of June 2022 to the 31st August 2022 as a Beverage Manager at a Complainant stated rate of pay of €865 per week.

1: Requested inclusion of Additional Complaints:

1:1 The Complainant requested to include additional complaints at date of Hearing.

These were

A Complaint under Section 14 of the Organisation of Working Time Act,1997 regrading alleged failure to provide a Sunday premium.
A Complaint under Section 11 of the Organisation of Working time Act,1997 regrading alleged failure of the Respondent to provide Minimum Rest periods.
A Complaint under Section 3 of the Employment (Miscellaneous Provisions) Act,2018 regarding an alleged failure to provide the Complainant with proper details of the Hours of Work “reasonably expected”

The Complainant maintained that he had notified the WRC on the 26th July 2023 of these additional complaints which he had not included in his original WRC Complaint form as a result of a “Clerical Error”.

The Complainant maintained that the Respondent was fully aware of these additional complaints as they had been raised at the WRC Mediation process earlier that month.

The Respondent Representative Mr Bolger of ESA Consultants stated in reply that the Respondent was present at the Hearing to answer the notified Complaints as set out in the WRC invitation correspondence.

He was not prepared to agree to the inclusion of supplemental complaints. He pointed out that, even if the WRC Mediation date of the 14th August 2023 or the earlier date of the 26th July 2023 were accepted as “ hypothetical notification dates” the additional Complaints were completely “Out of Time” being clearly submitted well in excess of Six Months from the alleged dates of contravention of the Legislation – Section 41 (6) of the Organisation of Working Time Act,2015 refers.

1:2 Adjudication Decision

It was noted that the Complainant was not professionally represented by either a Trade Union or a Legal firm.

However, the Time Limits argument had to carry weight. The Complainant did not appear to be aware that he could have requested a further six-month extension of time under Section 41(8) of the Workplace relations Act ,2015. No request for an extension was received.

Accordingly, the Time Limits argument from the Respondent was accepted. The Supplementary complaints were not considered or Adjudicated upon.

2: Dispute of Evidence / Working time records made /not made available to the Complainant.

A heated exchange took place over the alleged non provision of Working Time records by the Respondent. It appeared that this was largely due to the Records being Password protected. The Respondent, under Oath, testified that he had made numerous efforts to provide the necessary Passwords to the Complainant. He alleged that, due to the Complainant having numerous addresses, the delivery of the Password was frustrated.

The Adjudicator, having reviewed the Parties evidence at the time of the Hearing was satisfied that the Complainant had adequate information and was not handicapped by a lack of evidence.

3: Summary of Complainant’s Case:

3:1 Section 27 and Section11 of the Organisation of Working Time Act, 1997 - CA-00054528-003

The Complainant gave an oral testimony which was supported by a written submission.

Contrary to Section 11, on the 28th August 2022 he finished his work at 02:25 hrs and resumed work, under Employer pressure, at 11:00 hrs later the same day. This was clearly a Breach of the Act. This breach was a continuation of alleged earlier breaches of other working time Sections of the Act by the Respondent. His representations to the Respondent regarding the ongoing situation had led to his employment being terminated by the Employer.

3:2 Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00054528-004

The Complainant alleged that his Contract and Terms of Employment were unnecessarily ambiguous by stating “The company expects you to work the hours that are allocated to you”.

Section 1(A)(e) of the Act requires that an employer inform an employee, in his Terms and Conditions, of the number of hours that an employee is “Reasonably expected to work” on a daily and weekly basis.

This was clearly missing from his contract and the Respondent employer was guilty of a breach of the Act.

4: Summary of Respondent’s Case:

The Respondent gave an oral testimony supported by a written submission. Mr Bolger of ESA Consultants was the chief spokesperson.

4:1 Sections 27 and Section11 of the Organisation of Working Time Act, 1997 - CA-00054528-003

The Respondent pointed out that the Complainant was the Manager of the Premises on the night in question, 27th/28th August 2022. He had complete control, subject to overall Commercial policy of the Respondent Company, over the opening/closing Hours.

Records, supplied, indicated that Floor/Waiting staff had clocked out shortly after 23:00 hrs. Even allowing for some staff flexibility regarding private drinks/personal meals after the closure of the Premises there could be no rational explanation as to why the Complainant remained on the premises until 02.25 hrs. He had never come up with a suitable explanation for this.

This was also asked in cross examination from Mr Bolger to the Complainant. The answers were vague.

In the period of his work from 27th June to the 28th August 2022 records exhibited indicated that he had worked 301.22 hours -an average of 30.122 hours per week.

4:2 Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00054528-004

The Respondent in rebuttal maintained that the Contract of Employment stated that as a Manager the Complainant had to do the Hours required for his Responsibilities. These were clearly “reasonable” if not actually stated to be such. In addition, he was in large part in control of his own hours and when taken in conjunction with the Employee Handbook there could not be seen to be any “unreasonable” breach of the 1994 Act.

If there was a breach, which was denied, it was purely technical and most minor.

5: Findings and Conclusions:

5:1 Sections 27 and Section 11 of the Organisation of Working Time Act, 1997 - CA-00054528-003

The Records exhibited indicated that the Employment was in compliance with the Organisation of Working Time Actt,1998. It was noteworthy, although outside of the strict jurisdiction of this Adjudication, that a Workplace inspection had taken place earlier in the year at the Complainant’s request and nothing untoward was discovered.

The rationale for the “late stay” on the 27/28th August was never satisfactorily explained.

Accordingly on the balance of probabilities, taking the oral Testimony of both parties into account and the written records exhibited, the complaint has to be seen as Not Well Founded.

5:2 Section 7 of the Terms of Employment (Information) Act, 1994 - CA-00054528-004

Having studied the Contract of Employment, the Terms and Conditions and the Employee Handbook the issue of the Hours of Work of the Manager (largely self-directed) were not ambiguous even if not technically stated.

The Complaint has to be deemed as Not Well Founded.

6: Decision:

Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994 and section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

6:1 CA-00054528-003 - Organisation of Working Time Act, 1997

The Complaint is deemed to be Not Well Founded and fails.

6:2 CA-00054528-004 - Terms of Employment (Information) Act, 1994

The Complaint is deemed to be Not Well Founded and fails.

Dated: 1st December 2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Working Time Act,1997; Terms of Employment Information Act,1994