Complainant

Respondent

Parties

Ishal Singh

Back to Front Hospitality Limited

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-00060955-001

11/01/2024

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

CA-00060955-003

11/01/2024

The respondent has a contract to run the restaurants in Brown Thomas in Dublin and Cork.  On November 16th 2023, the complainant commenced employment as an executive chef in the Grafton Street premises.  He was dismissed just over seven weeks later, on January 8th 2024.  He has submitted complaints under the Organisation of Working Time Act 1997, regarding excessive working hours and breaks during the working day.

CA-00060955-001:  Section 15 of the Organisation of Working Time Act – Excessive Hours

On the form he submitted to the WRC, the complainant said that, in addition to the 40 hours per week that he was contractually required to work, he had to put in extra hours to perform daily tasks related to hygiene and food preparation.  He had to open and close the kitchen and his roster encompassed over nine hours a day for a five- or six-day week.  He said that he would generally be at work for two or three hours after the normal operating hours of the restaurants.

In the seven weeks that he worked for the respondent, the complainant claims that he worked around 50 hours every week.  He said that the business was short of staff and in addition to his job as an executive chef, with all the administrative work associated with that position, he had to cook and manage the “pass” in one of the restaurants in the department store.   He said that he also had to move stock from the store to the restaurant. 

Coming up to the busy shopping period around Christmas 2023, the complainant said that he was asked by his manager to work six days a week, which he did for four weeks.

CA-00060955-003:  Section 12 of the Organisation of Working Time Act – Breaks at Work

On the form he submitted to the WRC, the complainant said that he often didn’t take breaks due to the shortage of staff and daily deadlines.   He said that on most days, he would start at 8.00am and wouldn’t take a break until the food service was finished at 16.30 or 17.30, if at all.  He said that he had to do administrative work on his breaks.

CA-00060955-001:  Section 15 of the Organisation of Working Time Act – Excessive Hours

At the hearing, Mr Gavin said that the complainant was employed as an executive chef, which is the most senior kitchen manager in the company.  The complainant was the scheduling manager and had final sign off on all schedules, recruitment and planning for the kitchen operations which he was employed to manage.  He had all necessary resources available to him to complete his duties within his contracted and rostered hours.

Mr Gavin said that the executive chef currently in the role successfully carries out the duties of the role within the contracted hours.  The documentation that the complainant has provided to the WRC shows the finishing times of other employees in line with their scheduled times.  The company’s aim is that employees will not be required to work more than eight hours per day and Mr Gavin said that it is not in the interest of the Company for employees to work excessive hours.

Mr Gavin said that Christmas is a very busy time in Brown Thomas and he said that he asked the complainant to work an extra day in December 2023 / January 2024.  At the hearing, he accepted that the complainant worked a six-day week for four weeks at year-end.  Mr Gavin said that the complainant was paid an extra day’s pay for each week that he worked an extra day.

CA-00060955-003:  Section 12 of the Organisation of Working Time Act – Breaks at Work

It is the respondent’s case that the complainant was the scheduling manager, with responsibility for ensuring that he and his staff received their breaks in line with s.12 of the Organisation of Working Time Act.  Before the complainant started working with the respondent and, since his termination, the management of breaks and working hours has not been an issue.

The Respondent accepts that the Christmas period was a busy with extended opening hours; however, five additional chefs were employed for this period, doubling the existing workforce.

CA-00060955-001:  Section 15 of the Organisation of Working Time Act – Excessive Hours

Section 15 of the OWT Act provides that,

An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed

(a)     4 months, or

(b)    6 months[.]

I understand that the reference period for employees in the hospitality sector is four months.  The complainant worked for the respondent for just under eight weeks.  The complainant was not working with the respondent for long enough to establish that there was a breach of s.15 of the Act in respect of his working hours. 

For many employees, the first weeks in a job are often busy, as they become familiar with the business.  This is particularly the case for a senior manager, who has to get to grips with every aspect of the operation.  Added to this, Christmas time in the retail sector is generally busy, and many employees are expected to work longer hours in December.  I note that the complainant agreed to work six days a week for four weeks and that he was paid for working the extra hours.

CA-00060955-003:  Section 12 of the Organisation of Working Time Act – Breaks at Work

The contract of employment which the complainant submitted in advance of the hearing provides that he was entitled to a break of 15 minutes after four hours and 30 minutes if he was required to work more than six hours.  As an executive chef, the complainant was responsible for ensuring that he and the staff who reported to him got their breaks.  In their submission at the hearing, the respondent provided a printout of the scheduling application (“App”) used for staff to clock in and out and to take their breaks.  The complainant was expected to manage his day and to ensure that he took the breaks to which he was entitled.   He provided no evidence that, in the eight weeks of his employment, he complained to the directors that he couldn’t take his breaks.  At the hearing, Mr Gavin said that another chef complained because the complainant wouldn’t allow her to take a break.

As the most senior manager in the unit where he worked, the complainant was responsible to ensure that he and his colleagues got their breaks.  During his employment, he never complained about not getting breaks and he made no effort to address the problem.  If he didn’t take his breaks, that was a decision he reached of his own accord, and no one in the respondent’s company prevented him from taking his breaks.  He was never admonished for taking a break.  Taking all of this into consideration, it is my view that the complainant’s claim that his employer was in contravention of s.12 of the Organisation of Working Time Act cannot succeed.

CA-00060955-001:  Section 15 of the Organisation of Working Time Act – Excessive Hours

The complainant was employed by the respondent for less than four months and he cannot establish that he worked in excess of 48 hours over an average of four months.  For this reason I decide that this complaint is not well founded.

CA-00060955-003:  Section 12 of the Organisation of Working Time Act – Breaks at Work

For the reasons I have set out above, I decide that this complaint is not well founded.

Maximum working hours, breaks at work