Complainant

Respondent

Anonymised Parties

A Deli / Bakery Assistant 

A Shop / Bakery 

Representatives

  Self-represented

 Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00051210-001

16/06/2022

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

CA-00051210-007

16/06/2022

The complainant commenced employment with the respondent on the 11/4/2022 as a “Deli/ Bakery Sales Assistant” and was paid at a rate of €11 per hour and worked a different number of hours each week. The complainant’s contract of employment was terminated on the 27/5/2022 on the grounds of performance.  

At the hearing it was agreed between the parties that for the purposes of calculating the complainant’s weekly remuneration figure, taking an average of the wages as set out in 6 pay slips exhibited at the hearing, it was agreed that the complainant’s average weekly remuneration figure was €433.  

The within complaints concern a failure to provide a rest break entitlement, and an alleged failure to provide a written statement of terms of employment.  The respondent refutes both complaints.

On the 16/6/2022, the WRC received a complaint form pursuant to the Terms of Employment Information Act (1994) (as amended), and the Organisation of Working Time Act, 1997. 

CA-00051210-001 - Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 – Section 3

The complainant submitted that the respondent has breached Section 3 of the Terms of Employment (Information) Act, 1994 (the 1994 Act) by failing to provide her with a written statement of her terms of employment.

Evidence of Complainant

The complainant stated that she didn’t receive a statement of her terms and conditions of employment after commencing employment on the 11/4/2022. The complainant stated that she worked an average of 38/39 hours per week.

I put to the complainant the respondent’s submission that she was provided with a written statement of her terms on the 22/4/22 which was placed in her wage packet with her pay slip for that week. The complainant confirmed that she didn’t receive a statement either on the 22/4/22 or at any time thereafter. The first time she received a copy of the written statement was through receipt of the respondent’s submission from the WRC.

The complainant confirmed that she could not recall signing a contract of employment or statement of written terms. She further confirmed that she was not referred to an employee handbook during her employment.

CA-00051210-007 – Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997

Evidence of Complainant

The complainant stated that she worked her shift on the 25/5/22 from 11:00 to 5:00 pm and did not get a rest break during this shift. She confirmed that she had a position in the deli and sometimes worked in the bakery. Normally the rest break rota was displayed on the back of the bakery door, and she stated that normally she would get a break during her shift. However, the complainant said that on the 25/5/22 there was no break allocated for her on the rota and she did not receive a break. The complainant confirmed that there was an electronic clocking system to record working time and stated that occasionally she forgot to clock out.

CA-00051210-001 - Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 – Section 3

The respondent denies the allegation made under Section 3 of the Terms of Employment (Information) Act, 1994 (the 1994 Act) and submits that the complainant was provided with a written statement of her terms and conditions of employment on the 22/4/222.

Evidence of Mr A, Owner of the Respondent Shop

Mr A stated that the complainant was provided with a written statement of her terms and conditions of employment which was placed in an envelope with her first wage packet, and a pay slip on the 22/4/222.  Mr A confirmed that he did not have a signed copy of receipt by the complainant of her written statement, as he does not require employees to sign for receipt of same. He conceded that he did not provide the complainant with further terms of employment and stated this was an oversight on his behalf. He further stated that the complainant was provided with a summary of her core terms and conditions on the 22/4/222, which was opened at the hearing.   

CA-00051210-007 – Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997

Evidence of Mr A, Owner of the Respondent Shop

Mr A stated that a rest breaks roster was displayed on a daily basis at 6.30 am by the manager on duty. If an employee was working from 11:00 to 5:00 pm he stated that they would be entitled to a 15  minute break. He stated that he couldn’t confirm whether the complainant took her break on the 25/5/22.

I put to Mr A whether he had any evidence in the form of records to demonstrate that the complainant was allocated a break on the 25/5/22.  Mr A confirmed that he didn’t have a rest break roster or any other record to demonstrate that the complainant was allocated a break on the 25/5/22.

CA-00051210-001 - Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 – Section 3

Section 3(1) and (1A) of the 1994 Act provides in the relevant part as follows:

3.(1) An employer shall, not later than 1 month after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—……

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:……

Section 7(2) (d) of the 1994 Act provides:

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

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, 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.”

In this case the complaint form was received by the WRC on the 16/6/2022. Accordingly, I find based on the statutory time limit set out in section 41(6) of the Workplace Relations Act 2015 that the cognisable period relevant to this complaint is confined to a six-month period preceding the date of referral of the complaint, running from the 17/12/2021 until 16/6/2022. I find that the date of the alleged contravention relevant to this complaint, falls within this cognisable period.  

Section 3(1) and (1A) of the 1994 Act requires an employer to provide an employee with a written statement of the particulars of certain core terms of the employee’s employment not later than 5 days and in respect of further terms not later than 1 month after commencement of the employee’s employment.

The respondent submits stated that a written statement in the form of a summary of the terms of employment was provided to the complainant on the 22/4/222 in her wage packet. The complainant denies that she received a statement on the 22/4/222 or on any subsequent date. I note that a written statement of terms opened at the hearing is entitled “Terms of Employment”, which is not signed or dated by or on behalf of the respondent. I note that the respondent did not provide any supporting documentary evidence to corroborate his assertion in this regard. I further note that Mr A conceded in his evidence that he did not provide the complainant with a written statement of further terms of employment within one month of her commencing employment, as required per Section 3(1).

I prefer the complainant’s evidence on the basis that I found her evidence to be clear and credible, and due to the absence of supporting documentary evidence to support the respondent’s submission. Even if I was to accept Mr A’s evidence, I note that the written statement was not provided within 5 days of the complainant commencing employment and does not comply with the provisions of Section 3 of the 1994 Act as it was unsigned and undated.

I am satisfied based on the evidence of the complainant that the respondent did not provide her with a written statement relating to core terms of her employment, within 5 days of commencing employment on the 11/4/2022 nor were further written terms provided to the complainant within one month of this date. Mr A’s admission that he failed to provide a further written statement of all terms of employment, to the complainant, supports this finding regarding a breach of Section 3(1).

Accordingly, I find that the respondent has breached Section 3(1) and 3(1A) of the 1994 Act.  I am further satisfied that the complainant was disadvantaged due to the respondent’s failure to provide her with any terms of employment, in particular the relevant dismissal procedure, given that the complainant’s employment was terminated without notice on the grounds of performance on the 27/5/2022.

In addition to various remedies dealing with the provision/content of a written statement, Section 7(2)(d) of the 1994 Act provides that an Adjudication Officer may make an order of compensation “as the adjudication officer considers just and equitable having regard to all of the circumstances………, but not exceeding 4 weeks’ remuneration”.

Noting that the maximum compensation that can be awarded is capped at 4 weeks remuneration and considering the circumstances of this case,I direct the respondent to pay the complainant €1300, being equivalent to three weeks remuneration by way of compensation which I consider just and equitable in the circumstances of this case. I declare this complaint to be well founded.

CA-00051210-007 – Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997

This complaint concerns an allegation by the complainant that she did not receive her statutory entitlement to a rest break while working on the 25/5/22 pursuant to the provisions of section 12 Organisation of Working Time Act, 1997 (the 1997 Act).  I find that the date of contravention to which this complaint relates, namely the 25/5/22, falls within the cognisable period which runs from the 17/12/2021 until 16/6/2022.  

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 maintained that a rest break roster was exhibited on a daily basis by the manager on duty at 6.30 am. Mr A confirmed that he does not have any documentary evidence in the form of a rest break roster or any other evidence to demonstrate that the complainant was allocated and received a rest break on the 25/5/22, nor could he confirm same by way of oral testimony.

I note from the complainant’s evidence that an electronic clocking system was in place to record working time and a rest break roster was displayed in the shop on a daily basis. I further note that the complainant stated that normally she did receive her entitlement to a rest break while working her shifts.

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.  Mr A conceded that he was unable to produce the rest break roster for the 25/5/22, furthermore no witness on behalf of the respondent could confirm that the complainant received a rest break on the 25/5/22.

In circumstances where the respondent does not have a record of the breaks taken on the 25/5/22, and based on the complainant’s evidence, I am satisfied that the complainant did not receive a rest break to which she was entitled on the 25/5/22, when 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 €100, which I consider to be just and equitable having regard to all the circumstances.  

CA-00051210-001 - Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994

For the reasons set out above I find this complaint is well founded. I direct the respondent to pay the complainant €1300, being equivalent to three weeks remuneration by way of compensation, which I consider just and equitable in the circumstances of this case.

CA-00051210-007 – Complaint pursuant to Section 27 of the Organisation of Working Time Act, 1997

For the reasons set out above I find this complaint is well founded. I direct the respondent to pay the complainant compensation of €100, which I consider to be just and equitable having regard to all the circumstances.

Terms of employment / rest breaks / records of rest breaks