Complainant

Respondent

Parties

Siu Pek  Ip

Funfair Amusement Milan Gaming Ltd

Representatives

 Not represented

 Peninsula Group Limited

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-00050661-001

17/05/2022

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

CA-00050661-002

17/05/2022

The complainant was employed as a Cashier with the respondent from August 2004. She resigned from the employment on 17th May 2022. On the same day, she sent two complaints to the Workplace Relations Commission under the Organisation of Working Time Act 1997. The complaints are that she did not receive breaks and that she was not paid appropriately for public holidays.

The complainant gave evidence that she was not afforded breaks as there was only one staff member working on each shift. She also gave evidence that she was not paid appropriately for public holidays.

Under cross-examination, the respondent’s representative went through attendance records and wage slips included in their submission and which were made available to the complainant in advance of the hearing. The complainant was questioned on the weekly records over the period which showed that she had signed for breaks. The respondent also questioned the complainant on individual wage slips which showed payments for the bank holidays in question.

The complainant confirmed that she had signed for breaks although maintained that she did this under duress. The complainant confirmed that she did get payments for public holidays although she claims that there was a reduction in her normal hours of work around the May public holiday. The respondent questioned why no complaints were made during her employment if she was under duress to sign for breaks. Similarly in relation to public holidays, if she felt she was not receiving the appropriate public holiday pay, the respondent questioned why this issue was not raised with management during her employment. The complainant stated she was dependent on the job, and she could only safely raise issues after she had left.

The respondent representative drew attention to the contract of employment which made specific reference to contacting management if breaks were not granted or could not be taken. 

The respondent raised the preliminary issue that as the complaint form was received by the Workplace Relations Commission on 17th May 2022 that the cognisable period for any complaints were only up to six months prior to that date.

The respondent representative gave an outline of the records contained in their submission which included pay slips for the seven public holidays and the breaks signed for, over this period. The respondent representative stated that the hours worked leading up to the May public holiday were the hours worked by the complainant.

Ms Foley gave evidence on behalf of the respondent that she was not aware of any duress to sign for breaks. She confirmed that no issues were raised on breaks or public holidays during the employment.

The Workplace Relations Act 2015 under Section 41 (6) states;

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.

Subsection (8) states;

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I find that I cannot entertain complaints going back beyond the six-month period. Therefore, the cognisable period is from 17th May 2022 back to 18th November 2021. This period is the cognisable period for the complaint under section 12 and section 21 (which covers seven public holidays).

Complaint under Section 12 of Organisation of Working Time Act 1997

Section 12 sets out the entitlement to rest 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).

There is conflicting evidence on whether the complainant was afforded breaks. The respondent presented evidence that breaks were signed for. The complainant maintained that she was under duress to sign for these. The complainant made a general allegation of duress. This issue was not addressed in the complaint form or in any submission to the WRC and arose under cross examination. The respondent provided records and a witness who gave evidence that the complainant was not under duress to sign for breaks.

In the recent Labour Court Decision of PMc Painting Contractors Ltd v Patriycja Kwidzinska DWT 224 a similar issue arose and even though no records were available from the employer, there was still an onus on the employee to present the specific occasions when breaches of the Act occurred.

Although there is a conflict of evidence, I prefer the respondent’s evidence, and the documents presented at least on their face confirm that breaks were granted as per section 12 of the Act.

I find the complaint not well founded.

Complaint under Section 21 of the Organisation of Working Time Act 1997

Section 21 sets out entitlements in respect of public holidays:

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay.

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant has provided no specific evidence as to the public holidays on which she alleges there was an underpayment. From the payslips provided by the respondent, there is evidence of additional eight-hour payments classified as ‘public holiday pay’ made at the time of the seven public holidays. The complainant confirmed under cross examination that she received these payments although she specifically referenced a reduction in the normal hours of work around the May public holiday. The payslip for May refers to a public holiday payment. The respondent asserted that the working hours for that week were accurate.

As there is documentary evidence in the form of payslips that payments were made for public holidays, this shifts the onus on the complainant to substantiate the specific breaches, in line with the Labour Court case of PMc Painting Contractors. The complainant has not provided sufficient evidence to substantiate the claim that there was a breach of section 21 of the Act.

I find the complaint under section 21 of the Act not well founded.

CA-00050661-001- I find the complaint under Section 12 not well founded.

CA-00050661-002- I find the complaint under Section 21 not well founded.

Breaks, Public Holidays