ADJUDICATION OFFICER DECISION

TO BE ANONYMISED

Adjudication Reference: ADJ-00043961

Parties:

	Complainant	Respondent
Anonymised Parties	Cleaning Operative	Cleaning Contractors

Representatives

Ian McGowan Smyth HR Ireland

Complaint:

Act	Complaint 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-00054435-002	10/01/2023

Date of Adjudication Hearing: 04/07/2023

Workplace Relations Commission Adjudication Officer: Kara Turner

Procedure:

In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

At the hearing, the complainant represented herself, supported by her son. The respondent was represented by Mr Ian McGowan Smyth of HR Ireland, and he was accompanied by the respondent’s human resources manager, an area manager and a regional manager. I received a submission on behalf of the respondent prior to the hearing. Both parties availed of the opportunity given to submit further information/evidence in relation to this complaint after the hearing. I have taken account of all relevant submissions and evidence in relation to the complaint.

I have decided, of my own volition, to anonymise this decision due to the existence of special circumstances. The factual matrix of this complaint is closely linked to a dispute under the Industrial Relations Act 1969. Publication of the identities of the parties to this complaint would reveal their identities in relation to the industrial relations dispute, which, as a matter of law, was investigated in private.

Background:

The complainant has worked as a cleaning operative with the respondent since October 2021.

The complaint referred against the respondent is in relation to a breach of section 12 of the Organisation of Working Time Act 1997.

Summary of Complainant’s Case:

The complainant submitted that from January 2022, her supervisor would not let her take breaks at work.

Summary of Respondent’s Case:

The respondent was not aware of any issue regarding the complainant not receiving, or not allowed to take, rest breaks.

The respondent ensures breaks are taken.

Employees do not clock out for breaks. The taking of breaks is managed by the supervisor.

Findings and Conclusions:

Sections 41(6) and 41(8) of the Workplace Relations Act 2015 set out the relevant time limits for referral of complaints to the Workplace Relations Commission; a complaint must be presented within 6 months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within 6 months was due to reasonable cause.

This complaint was presented to the Workplace Relations Commission on 10 January 2023. The cognisable period covered by this complaint is the period from 11 July 2022 to 10 January 2023.

The issue is whether the complainant received the breaks to which she was entitled under section 12 of the Organisation of Working Time Act 1997 (the “1997 Act”) during the cognisable period. The complainant’s evidence was that the supervisor would not allow her to take breaks.

Section 12 of the 1997 Act provides as follows:

“ (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).”

The respondent submitted a breakdown of the hours worked by the complainant in the 12-month period prior to referral of the complaint. The respondent maintained that all breaks were given and taken, and further that the complainant had not raised any issue in this regard prior to referring the within complaint to the Workplace Relations Commission.

The evidence before me was that the complainant was paid €11.55 per hour, worked variable daily hours, with shift duration varying from 2 to 6 hours. It is clear from the respondent’s documentation that there were shifts worked by the complainant on certain dates within the cognisable period that attracted an entitlement to a rest break at work. It is not clear from the documentation provided that the complainant received the breaks to which she was entitled.

I further note from the employee handbook that breaks are to be agreed with the supervisor, and that the contract refers to clocking in and out for breaks.

To demonstrate compliance, the respondent is required under section 25(1) of the 1997 Act to keep appropriate records. It is well settled that records under section 25(1) should show the timing and duration of employees’ breaks. The respondent submitted that it is in the process of acquiring a new time and attendance management system which will capture breaks taken.

In circumstances where the respondent does not have a record of the breaks taken, I must conclude that the complainant did not get the breaks to which she was entitled on the occasions she worked a shift exceeding 4.5 hours during the cognisable period.

I find that this complaint of a breach of section 12 of the 1997 Act is well founded. I direct the respondent to pay the complainant compensation of €500, which I consider to be just and equitable having regard to all the circumstances, including the fact that the complainant’s shift hours during the cognisable period did not attract the statutory entitlement to a break on a daily basis.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is well founded, and I direct the respondent to pay the complainant compensation of €500, which I consider to be just and equitable having regard to all the circumstances.

Dated: 6th December 2023

Workplace Relations Commission Adjudication Officer: Kara Turner

Key Words:

Organisation of Working Time Act 1997 – Rest breaks at work – Anonymised decision – Special circumstances