Complainant

Respondent

Parties

Andrea  Baldacchino

C&C  Retail Limited t/a Gino’s Gelato.

Representatives

  Self-Represented

Anna Rosa Raso ESA Consultants

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-00050616-002

13/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00050616-003

13/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051656-001

12/07/2022

The Complainant is of Italian heritage and commenced his first job in Ireland with the Respondent on 14 September 2021 as a gelato maker. His rate of pay was €440 gross; €422 net, for a 40-hour week.   He received a letter of dismissal  from the Respondent on 5 January 2022 where it stated, amongst other things, “Your employment shall be terminated effective 12-1-22.” The Complainant submits that: (1)  he did not proper breaks in line with section 12 of the Organisation of Working Time Act (the 1997 Act); (2) He did not receive his statutory minimum notice under the Minimum Notice and Terms of Employment Act 1973 (the 1973 Act); and (3) he did not receive a copy of his terms of employment as outlined under section 3 of the Terms of Employment (information) Act 1994 (the 1994 Act).

The Respondent denies all claims. The Respondent submitted a preliminary objection on  time limitation  with respect to  complaint CA-00051656 (1994 Act. ) The Respondent submits that the date of termination of employment was 5 January 2022 whereas this latter  complaint was submitted on the 12 July 2022, 6 months, and 6 days after the termination of his employment. The Complainant exhibited a copy of  the original complaint form which showed that he had included the complaint under the 1994 Act, and he does not understand why it was not included by the Workplace Relations Commission (WRC) with his original complaints from 13 May 2022.

CA-00050616-002: Work Breaks.

The Complainant gave evidence under affirmation. He relied on clocking-in records to show that he had not been facilitated in taking his 30-minute break after six hours work. His complaint was submitted on 13 May 2022 therefore the cognisable period was from 12 November 2021. Based on this time scale, the Complainant identified four days within that period when he did not get a work break as stipulated in section 12 of the 1997 Act.

CA-00050616-003: Minimum Notice:

The Complainant stated that he did not get his minimum notice under the 1973 Act but did accept that he had been paid a week’s pay  in lieu of notice.

CA-00051656-001: Terms of Employment.

The Complainant stated  that he did not receive a copy of the terms of employment. On the copy that was exhibited by the Respondent, he noted that that it was not signed by him and furthermore there was a fundamental error  regarding his rate of pay.   

Ms. Majella Caffola, Operations and HR Director for the Respondent, gave evidence under affirmation.

CA-00050616-002: Work Breaks.

The witness said that the position of gelato maker can be classed as an artisan skill. The witness said that the gelato maker usually dictates his/her own breaks, given the nature of the work and therefore if the Complainant did not avail of his breaks, it was not the fault of the Respondent.

CA-00051656-001: Terms of Employment.

The witness said it was her responsibility to ensure that all the employees were supplied with the statutory documentation, and she sent the Complainant’s terms and conditions, with another document, to the outlet where the Complainant worked. She accepted that she could not testify to the fact that the Complainant had seen the document, which was exhibited.

CA-00050616-003: Minimum Notice:

The Respondent refers to section 7(1) of the Act wherein it states:

“Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

The Respondent submits that the Complainant received his minimum notice of one week and payment in lieu of that notice on 5 January 2022.

CA-00050616-002: Work Breaks.

Section 12 of the Organisation of Working Time Act, as amended (the 1997 Act) deals  with  rests and intervals at work, where it provides:

(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).

I am satisfied that as a food outlet, the Respondent does not come under the exemption for shop workers (S.I. 57 of 1998) and therefore 30 mins rest per shift satisfies the legislation. The Respondent witness described how the Complainant would, in essence, control his own breaks but the Complainant gave cogent evidence that this was not the case at his employment and his breaks were not facilitated due to the outlet being busy or other tasks he might have to perform. In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004- [2004] E.L.R. 222), the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks: “Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.” I am satisfied, based on the Complainant’s evidence that he was denied at least 4 breaks in the cognisable period under the 1997 Act,  between 12 November 2021 and 5 January 2022.

Section 27(3) of the 1997 Act gives direction to the Adjudication Officer on how complaints under  the act may be dealt with:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Adherence to Art. 7 of the EU  Working Time Directive, from which the Act derives, is a  paramount principle when protecting the  the health and welfare of employees. Therefore, there must  be a deterrent factor in a  compensatory sum. I also note that here was a recorded pattern of denial of breaks prior to the cognisable period under the Act. This will not be taken into account when calculating compensation,  but I cannot ignore the fact that the 4 days in question do not seem to be isolated incidents.   I find that compensation of €440, the equivalent of one  week’s salary, is just and equitable having regard to all the circumstances.

CA-00050616-003: Minimum Notice:

section 7(1) of the Minimum Notice and Terms of Employment Act 1973 states:

“Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

After hearing the evidence and submissions on this issue I am satisfied that the Respondent complied with the Act and the Complainant received proper notice and payment of week’s wages. I therefore find that the complaint was not well founded.

CA-00051656-001: Terms of Employment.

Preliminary objection – Complaint out of time:

The Respondent submitted that the Complainant was dismissed on 5 January 2022 and this complaint was submitted to the WRC on 12 July 2022, six days over the time limit. The Complainant submitted documentary evidence to show that he had submitted the complaint to the WRC on 13 May 2022 with the other complaints, but that it failed to appear on subsequent documentation.

The Unfair Dismissals Act refers at section 2 where it defines the date of dismissal in the following terms: -

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment [Acts 1973 to 2005].

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;

It has been long established that the date of dismissal is recognised as being the date on which notice of the termination of employment expired, or where notice is not given, the date on which notice, if given, would have expired. Documentary evidence submitted shows that the notice letter of 5 January 2002 stated, “Your employment shall be terminated effective 12-1-22.” I am satisfied that even if the complaint was originally  submitted on 12 July 22 it was within the six-month limit by one day, notwithstanding the credible evidence of the Complainant that he submitted the complaint originally on 13 May 2022. I decide, therefore, that the complaint was properly submitted.

Substantive Issue:

The Terms of Employment (Information) Act, 1994 requires that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C  shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

The Complainant submits that he never received a statement of his terms, nor received a contract, from the Respondent during the period he was employed. The Respondent witness stated that she sent the terms for him to the outlet to be signed but she accepted that she could not testify that he actually received the terms. Fundamentally, I note that the terms had not been signed. I therefore find that  evidence of the Complainant to be convincing and I conclude that  the complaint was well founded.  It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The Complainant described how this was his first job in Ireland and that he was unfamiliar with his employment rights. I conclude that the impact of not receiving his terms under such circumstances was an aggravating factor that should be reflective in the compensatory sum. I direct  the Respondent to pay the Complainant a compensatory sum of €880, the equivalent of two weeks  remuneration, for a breach of the legislation.

CA-00050616-002: Work Breaks.

For the reasons outlined above, I decide the complaint was well founded and I direct they Respondent to pay the Complainant the compensatory sum of €440.00.

CA-00050616-003: Minimum Notice:

For the reasons outlined above, I decide the complaint was not well founded.

CA-00051656-001: Terms of Employment.

For the reasons outlined above, I decide the complaint was well founded and I direct the Respondent to pay the Complainant the compensatory sum of €880

Organisation of Working Time Act 1997, work breaks, Minimum Notice and Terms of Employment Act 1994, Terms of Employment (Information) Act 1994.