ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046853
Parties:
| Complainant | Respondent |
Parties | Ethan Fifita | Hitian Land Ltd Xian Street Food/ Renao |
Representatives |
| Jackie Brennan Consultant |
Complaint:
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-00056699-001 | 22/04/2023 |
Date of Adjudication Hearing: 03/11/2023 & 01/03/2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
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.
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation and on the first day of the hearing Ms Rosemarie Fifita was also in attendance. Ms Gabriella Akaki employee and Ms Mia Morgan employee gave evidence under affirmation for the respondent and Ms Jackie Brennan was also in attendance for the respondent.
Background:
The complainant submits that he did not get breaks on a number of occasions. |
Summary of Complainant’s Case:
The complainant submitted that he worked for the respondent and that on occasions he did not get breaks.
The complainant gave evidence that his hourly rate was €11.50 and that he commenced employment on 23/09/2022 and his employment ended on 10/04/2023. He said there was a period of time when he worked that he would not get a break. He said he got a contract and there was no mention of breaks in the contract. He said on 08/02/2023 he did not get a break and was working in a different building and did not get a break. On another occasion on 15/02/2023 he asked could he go on a break and was told there was no one to cover for him. On 07/03/2023 he did not get a break and had worked 7 hours on that day.
Under cross examination the complainant said that he was told to go to Mr X if there was a problem and he was the main contact. He said in total there were five days when he did not breaks and they were 07/02/2023, and not 08/02/2023 as he had previously testified to and that he also did not get breaks on 15/02/2023, 07/03/20223, 04/04/2023 and 06/04/2023.
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Summary of Respondent’s Case:
The respondent submitted that the complainant had a contract of employment and knew who to go to if he had a problem. It was submitted that the roster goes out the weekend before and there is no one overall manager and the breaks are self-determining as there are busy times and quiet times.
Evidence of Ms Morgan was that she has been an employee since March 2022 and has worked alongside the complainant and the breaks are not tied to the roster. Her evidence was that she has had a different experience than the employee. She said that she would usually order her food before the next shift and then when the person comes in for the next shift she can take her break.
The evidence of Ms Akaki was that a person puts together the hours for the roster. |
Findings and Conclusions:
The worker submits that he did not receive breaks on 5 occasions namely, 07/02/2023, 15/02/2023, 07/03/20223, 04/04/2023 and 06/04/2023 and the respondent submits that the complainant could have taken his breaks and that on other occasions the complainant received the relevant breaks.
Section 12s sets out .— (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).
25.— (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making. (2)…… (3)…….. (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1)in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
In this case the Respondent was not able to prove compliance and therefore as set out in Medfit Wellness Limited v Ruth Murphy DWT1717 the appeal must succeed. Having considered all the circumstances of the instant complaint I find that the complaint during the cognisable period is well founded and the Respondent should pay to the Complainant a sum of €450 in compensation. |
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 during the cognisable period is well founded and the Respondent should pay to the Complainant a sum of 450 in compensation. |
Dated: 11-06-2024
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Breaks, organisation of working time act, |