Complainant

Respondent

Parties

Paola Alba  Dalivar

Tomasz Oleksy and Lucia Aruizu Villagomez t/a El Grito Mexican Taqueria

Representatives

  Richard Grogan Solicitor

 No Appearance

Act

Complaint/Dispute 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-00045862-001

27/08/2021

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

CA-00045862-002

27/08/2021

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

CA-00045862-003

27/08/2021

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

CA-00045862-004

27/08/2021

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

CA-00045862-005

27/08/2021

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

CA-00045862-006

27/08/2021

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

CA-00045862-007

27/08/2021

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

CA-00045862-008

27/08/2021

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

CA-00045862-009

27/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045862-010

27/08/2021

The complainant worked in the respondent’s restaurant as waiting staff.  She commenced employment on 23 August 2018 and terminated her employment on 31 July 2021.  She worked 35 hours per week and was paid €12 per hour. 

The complainant submitted her complainants to the Workplace Relations Commission on 27 August 2021.  The complaints include allegations of seven breaches of the Organisation of Working Time Act, 1997 and a breach of the Terms of Employment (Information) Act, 1994. 

CA-00045862-001

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant asserts that while she did sign a contract of employment she was never furnished with a copy of the contract.  It is submitted that this is contrary to the provisions of section 3 of the Act, which provides that the employer must provide the employee with a statement in writing containing the specified terms of the employee’s employment.

CA-00045862-002

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant stated she was never paid compensation for working on a Sunday.  In the six months prior to submitting her complaint, the complainant worked 18 Sundays.  No additional payment was made to the complainant. The complainant’s representative cited the decision of the Labour Court in Noonan Services Group Limited v Festeu DWT208.  The Court held that unless the employee is advised in writing that the rate of pay includes a Sunday premium, then the employee is entitled to pursue a claim under section 14 of the Act. 

The complainant claims the respondent has breached section 14 of the Act.

CA-00045862-003

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant worked on four public holidays in the six-month period before she submitted her complaint.  The days worked were 17 March, 05 April, 03 May and 07 June 2021.  She did not receive any extra pay for working on the public holidays, or any other form of compensation.  On three of the days, she worked for 4 hours each and on the fourth day she worked for 5 hours for which she was paid.  The complainant claims that she was due payment for an additional day for each public holiday worked at the rate provided for by section 22 of the Act.  The claim is for payment for 7 hours for each of the four public holidays worked.

CA-00045862-004

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant claims she did not receive her Public Holiday entitlements, as provided in section 21 of the Act, in respect of the public holidays that fell on 17 March, 05 April, 03 May and 07 June 2021.  The complainant claims compensation for the respondent’s breach of section 21 of the Act.

CA-00045862-005

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

In the reference period the complainant claims that on 12 dates she was not given her roster at least 24 hours in advance of her shift.  The complainant claims the respondent breached section 17 of the Act in failing to give her at least 24 hours’ notice of her roster and overtime.  The complainant’s representative cited the decision of the Labour Court in Musgrave Limited v Vasilijevs DWT1825 where the Court held that a worker is entitled to 24 hours’ notice of their start and finishing times to enable them to reconcile their work/life commitments.  The decision in Baskakoviene v Milne Foods Limited ADJ-00030753 was also cited in support of the claim.

CA-00045862-006

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant received a payment of €1364.76 when she left employment.  She was not provided with details of this payment.  She had not received any holidays between September 2020 and June 2021.  The annual leave year runs from 01 April to 31 March.  In the annual leave year ended on 31 March 2021 the complainant had not received her full entitlement to paid leave as provided for in section 19 (3) of the Act.  The complainant claims compensation for the breach of the Act.

CA-00045862-007

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant did not receive any holidays between September 2020 and June 2021.  The complainant left employment on 31 July 2021.  She was not paid in accordance with section 20 (2) of the Act.  The complainant claims compensation for the breach of the Act.

CA-00045862-008

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant never received a rest break unless she worked more than 8 hours and then it was a 30-minute break.  On occasions she worked for more than 8 hours without a break.  The complainant’s representative cited the decision of the Labour Court in The Tribune Printing & Publishing Group v GPMU DWT046 & DWT047 where the Court set out the employers’ obligations in relation to rest breaks, at page 19.  The decision of the European Court of Justice in Commission v United Kingdom C-484-04 was cited, where the Court set out that the obligation is on the employer to ensure that employees receive their appropriate rest and break periods. 

The complainant provided copies of rosters on which it was noted that employees working a 10-hour period would receive two breaks of 20 minutes, which is contrary to the provisions of the Act.

CA-00045862-009

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

This complainant was a duplicate of complaint CA-00045862-05 and was withdrawn by the complainant at the hearing.

CA-00045862-10

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant withdrew this complaint at the hearing.

Legal Submission

It is submitted that section 25 of the Organisation of Working Time Act, 1997, requires an employer to keep at the premises, or place where his or her employee works, and if the employee works at two or more premises or places, the premises or places from which the activities that the employee is employed is employed to carry on are principally directed, such records in such form as may be prescribed as will show whether the provisions of the Act have been complied with in relation to the employee.

The complainant contends that in this case the employer has not produced those records.  It is a matter for the employee to set out matters with sufficient particularity for the employer to be able to address the complaints made by the employee.  It is not a matter for the employee to prove the breaches of the Act.  It is a matter for the employer to have the said records to discharge same.

The complainant accepts that the provisions of section 25 are a criminal sanction only for the breach, but this does not mean that the burden of proof shifts to the employee to prove something, it is a matter which the employer must prove.  It is contended that the complainant has set matters out with sufficient particularity, so that the employer understands the claims.

There was no appearance by or on behalf of the respondents.  The respondents did not attend to contest the complaints submitted by the complainant. 

As I was satisfied that the respondents were on notice of the date time and location of the hearing, I proceeded to hear the complaints in the absence of the respondents.

The complainant gave evidence on oath.  She was a credible witness.  Her evidence was uncontested as the respondents, although on notice, did not attend the hearing.

CA-00045862-001

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complainant stated that she had signed a contract of employment when first employed but she was not given a copy of the contract.  She stated she was never given a written statement of her terms of employment. 

Section 3 of the Act provides as follows:

3.— (1) An employer shall, not later than 2 months 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,

I accept the complainant’s uncontested evidence and I am satisfied that she was not given a statement in writing of her terms of employment at any time during her employment.  I find the respondents were in breach of section 3 of the Act throughout the complainant’s period of employment.  I declare that the complaint is well founded.  In the circumstances I consider it just and equitable to order the respondent to pay the employee compensation of €820, for the breach of section 3 of the Act.

CA-00045862-002

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant was required to work on Sunday.  She stated she worked on 18 Sundays in the six-month period prior to submitting her complainant.  The complainant stated she was paid €12 per hour and that did not vary when she worked on a Sunday.

Section 14 of the Act provides as follows:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs

Based on the complainant’s uncontested evidence I am satisfied that the complainant was not paid an allowance or otherwise compensated for working on a Sunday.  I am also satisfied that the complainant was not advised in writing that her rate of pay included a Sunday premium.  I declare that the complaint of a breach of section 14 of the Act is well founded.

I decide that it is just and equitable in all the circumstances to require the respondents to pay to the complainant compensation at the rate of time plus one third for working on a Sunday.  I am satisfied that the complainant worked on 18 Sundays in the relevant period.  I require the respondents to pay to the complainant compensation of €500.

CA-00045862-003

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence stated that she worked on the Public Holidays that fell on 17 March, 05 April, 03 May and 07 June 2021.  All those public holidays fell within the six-month period prior to the complaint being submitted to the Workplace Relations Commission.  The complainant stated that she did not receive any additional payment for working on the public holidays and was not given extra time off to compensate. 

The complainant claims the respondents have breached section 22 of the Act by failing to pay her an additional day’s pay. 

Section 21 of the Act provides as follows:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 22 of the Act provides:

22.— (1) The rate— (a) at which an employee is paid in respect of a day off under section 21, and (b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

The relevant regulations are contained in S.I. 475 of 1997.  The regulation provides

If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then—

( a ) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,

I am satisfied that the complainant was entitled to be paid an additional day’s pay for each of the four public holidays she worked between March and June 2021.   I declare the complaint of a breach of section 22 of the Act is well founded.  For the breach of section 22 of the Act I decide it is just and equitable to require the respondents to pay the complainant compensation equal to four days pay.  I require the respondents to pay to the complainant compensation of €336.

CA-00045862-004

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence stated that she worked on the Public Holidays that fell on 17 March, 05 April, 03 May and 07 June 2021.  All those public holidays fell within the six-month period prior to the complaint being submitted to the Workplace Relations Commission.  The complainant claims she did not receive her entitlements as provided in section 21 of the Act.

Section 21 of the Act provides:

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Based on the uncontested evidence of the complainant I am satisfied that the complainant did not receive any compensation for working on the public holidays on 17 March, 05 April, 03 May and 07 June 2021.  I declare the complaint under section 21 of the Act is well founded.

The respondents were in breach of section 21 of the Act by requiring the complainant to work on public holidays and not providing her with any form of compensation.  In the circumstances I decide it is just and equitable to require the respondents to pay to the complainant compensation of €500.

CA-00045862-005

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence claimed that on 12 dates she was not given her roster at least 24 hours in advance of her shift.  The complainant claims the respondent breached section 17 of the Act in failing to give her at least 24 hours’ notice of her roster and overtime. 

Section 17 of the Act provides:

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

Based on the complainant’s uncontested evidence I am satisfied that on 12 dates in the relevant period the complainant was not given 24 hours’ notice of the hours she was required to start and finish work.  I note the decision of the Labour Court in Musgrave Limited v Vasilijevs DWT1825 that a worker is entitled to 24 hours’ notice of their start and finishing times to enable them to reconcile their work/life commitments. I declare the complaint of a breach of section 17 of the Act is well founded.  In the circumstances I decide it is just and equitable to require the respondents to pay to the complainant compensation of €500.

CA-00045862-006

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence claimed that in the annual leave year ended on 31 March 2021 she had not received her full entitlement to paid leave as provided for in section 19 (3) of the Act.  The complainant claims compensation for the breach of the Act.

Sections 19(1) and (3) provide as follows:

19.— (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks

The complainant stated that in the leave year 2020/21 she did not receive her annual leave entitlements.  When she left employment, she received the sum of €1,364.76 which sum was not explained.  During her employment she had not received an unbroken period of 2 weeks leave.

Based on the uncontested evidence of the complainant I am satisfied that she did not receive an unbroken period of 2 weeks leave in the leave year 2020/21, which ended on 31 March 2021.  The complaint was submitted on 27 August 2021 which is within the cognizable period.  I declare the complaint of a breach of section 19(3) of the Act is well founded.  I decide it is just and equitable in all the circumstances to require the respondents to pay to the complainant compensation of €500.

CA-00045862-007

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence stated that she did not have the benefit of annual leave between September 2020 and June 2021.  It was submitted that it is a matter for the employer to ensure the employees receive their holidays in the annual leave year, which runs from 01 April to 31 March.  The complainant claims she was not paid at the rate she was entitled to or in advance of taking annual leave.

Section 20(2) of the Act provides:

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

Based on the uncontested evidence of the complainant I am satisfied the respondents were in breach of section 20 of the Act.  I declare the complaint of a breach of section 20 of the Act is well founded.  I decide it is just and equitable on all the circumstances to require the respondents to pay to the complainant compensation of €500.

CA-00045862-008

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

The complainant in her uncontested evidence stated that she never received a rest break unless she worked more than 8 hours and then it was a 30-minute break.  On occasions she worked for more than 8 hours without a break.  Copies of the staff roster were provided with the submission on which it is written “Working 8 hrs 30 mint break – working hrs 10am to 22pm (2 breaks 20 mint.) – working 7 hrs 20 mint break”

Section 12 of the Act provides as follows:

Rests and intervals at work.

12.— (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 complainant’s representative cited the decision of the Labour Court in Tribune Printing & Publishing Group v GMPU DWT046/047 in which the Court set out the employers’ obligations in relation to rest breaks.  The Court made it clear that the employer is under a duty to ensure the employee receives their rest breaks and must have in place proper procedures to ensure that employees can take the appropriate breaks. 

The Organisation of Working Time Act is described as:

AN ACT TO PROVIDE FOR THE IMPLEMENTATION OF DIRECTIVE 93/104/EC OF 23 NOVEMBER 1993 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES CONCERNING CERTAIN ASPECTS OF THE ORGANIZATION OF WORKING TIME, TO MAKE PROVISION OTHERWISE IN RELATION TO THE CONDITIONS OF EMPLOYMENT OF EMPLOYEES AND THE PROTECTION OF THE HEALTH AND SAFETY OF EMPLOYEES, …

The Act makes specific provision for the protection of the health and safety of employees.  It is not acceptable for employers to ignore the health and safety of their employees by failing to provide them with the appropriate rest and break periods as set out in the Act. 

Based on the uncontested evidence of the complainant I am satisfied the respondents did breach the provisions of section 12 of the Act.  I declare the complaint of a breach of section 12 of the Act is well founded.  I decide it is just and equitable in all the circumstances to require the respondents to pay to the complainant compensation of €1000.

CA-00045862-001

Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

I declare that the complaint is well founded.  In the circumstances I consider it just and equitable to order the respondent to pay the employee compensation of €820, for the breach of section 3 of the Act.

CA-00045862-002

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare that the complaint of a breach of section 14 of the Act is well founded.

I decide that it is just and equitable to require the respondents to pay to the complainant compensation at the rate of time plus one third for working on a Sunday.  I am satisfied that the complainant worked on 18 Sundays in the relevant period.  I require the respondents to pay to the complainant compensation of €500.

CA-00045862-003

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint of a breach of section 22 of the Act is well founded. 

In the circumstances I decide it is just and equitable to require the respondents to pay the complainant compensation equal to four days’ pay.  I require the respondents to pay to the complainant compensation of €336.

CA-00045862-004

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint of a breach of section 21 of the Act is well founded.

The respondents were in breach of section 21 of the Act by requiring the complainant to work on public holidays and not providing her with any form of compensation.  In the circumstances I decide it is just and equitable to require the respondents to pay to the complainant compensation of €500.

CA-00045862-005

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint of a breach of section 17 of the Act is well founded.  The respondents were in breach of section 17 of the Act in failing to give the complainant at least 24 hours’ notice of her start and finish times.

In the circumstances I decide it is just and equitable to require the respondents to pay to the complainant compensation of €500.

CA-00045862-006

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint of a breach of section 19(3) of the Act is well founded. 

I decide it is just and equitable in all the circumstances to require the respondents to pay to the complainant compensation of €500.

CA-00045862-007

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

 I declare the complaint of a breach of section 20 of the Act is well founded.

I decide it is just and equitable on all the circumstances to require the respondents to pay to the complainant compensation of €500.

CA-00045862-008

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

I declare the complaint of a breach of section 12 of the Act is well founded. The respondents were in breach of section 12 of the Act in failing to provide the complainant with the appropriate or any breaks during her working hours.

I decide it is just and equitable on all the circumstances to require the respondents to pay to the complainant compensation of €1000.

CA-00045862-009

Complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

This complainant was a duplicate of complaint CA-00045862-05 and was withdrawn by the complainant at the hearing.

CA-00045862-10

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

This complaint was withdrawn at the hearing.

Terms of Employment – Statement in Writing

Sunday Premium

Public Holidays

Notification of Working Times

Annual Leave

Rest Breaks