SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
NUTWEAVE LTD T/A BOMBAY PANTRY
(REPRESENTED BY PARAMOUNT HR)
- AND -
(REPRESENTED BY AMORYS SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appealing Against A Rights Commissioner's Decision r-139806-wt-13/JT
2. A Rights Commissioner hearing took place on the 23 April, 2014, and a Decision was issued on the 16 September, 2014.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 23 October, 2014, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 8th April, 2015.
This is an appeal by Dinesh Kumar (hereafter the Claimant ) against the decision of a Rights Commissioner in his claim against his former employer, Nutweave Limited t/a Bombay Pantry (hereafter the Respondent), under the Organisation of Working Time Act 1997 (the Act). The claim relates to an alleged failure of the Respondent to afford the Claimant breaks in accordance with s.12 of the Act.
The claim was taken before the Rights Commissioner in conjunction with a claim under s. 20(1) of the Industrial Relations Act 1969 and both matters were heard together. A single “recommendation” issued. The Rights Commissioner did not expressly make a decision on the claim under the Act in terms required by s.27(2) of the Act. However the Court assumes that what the Rights Commissioner erroneously referred to as his ‘recommendation’was intended to constitute his decision.
Period covered by the claim
The claim was presented to the Rights Commissioner in November 2013. Consequently the period cognisable for the purposes of the case is between April 2013 and November 2013.
Position of the Parties
It was the Claimant evidence that he did not obtain breaks during the time in issue. He told the Court that he prepared food which he consumed while continuing to work. He said that he rarely received more than 5 minutes break.
Evidence on behalf of the Respondent was given by Mr Ray McGuinness who was the Claimant’s manager during the material time. He told the Court that the Claimant was employed at this time as a curry chef. He alternated in that position with another chef. According to Mr Mc Guinness, employees of the Respondent, including the Claimant, generally started work at 3pm. They then worked up to 10pm or 10.30 pm depending on the day of the week. Normally a meal was prepared around 4pm and all employees took a break together at around 4.30pm. The premises in which the Claimant was employed is a take- out restaurant and it remained open during that period. If a customer called to the premises they would have to be attended to. This could involve an interruption in the break. The Court was told by Mr McGuinness that if the Claimant’s break was interrupted he would obtain a compensatory break at the end of his shift.
The Respondent accepted that during the period cognisable by the within claim it did not maintain records of breaks in accordance with s.25 of the Act.
Section 12 of the Act, the application of which is in issue in this case, provides as follows: -
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).
For the purposes of the Act a break is a period which the worker knows in advance will be uninterrupted, which is not working time and which he or she can use as he or she pleases (see dicta to that effect of Peter Gibson LJ inGallagher v Alpha Catering services t/a Alpha Flight Services I.R.L.R.102).
The expression “working time” is defined by s.2(1) of the Act as follows: -
working time” means any time that the employee is—
- (a) at his or her place of work or at his or her employer's disposal, and
(b) carrying on or performing the activities or duties of his or her work,
- (a) at his or her place of work or at his or her employer's disposal, and
The provisions of s.25 of the Act are also relevant in considering this claim. That section provides: -
- .—(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 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) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
(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 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.
- The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (S.I. 473 of 2001) prescribes the form in which records are to be maintained for the purpose of subsection (1) of that section.
It is accepted by the Respondent that it did not keep records in the statutory form during the period cognisable in this case. Consequently, by operation of subsection (4) of s.25 the Respondent bears the burden of proving compliance with s.12 of the Act in the period with which the Court is concerned.
Taking the evidence tendered on behalf of the Respondent at its height the following facts emerge: -
•The Claimant commenced work at 3pm each afternoon. He had a break at or about 4.30pm. He then continued working until 10pm or 10.30 pm.
•During his break he was required to resume his duties if a customer called to the restaurant and required service.
•He received a further break at the end of his shift
It is also clear that during the period that purported to be a break at 4.30pm the Claimant was at the Respondent’s disposal and could be required to resume his duties if so required. That could not amount to a break within the statutory meaning ascribed to that term.
For the reasons set out herein the Court is satisfied that the within claim is well-founded. Accordingly, the decision of the Rights Commissioner cannot stand and the Claimant is entitled to succeed in his appeal.
The Court considers that the appropriate mode of redress is an award of compensation. The Court measures the amount of compensation that is fair and equitable in all the circumstances at €2,000. The Claimant is awarded compensation in that amount.
The decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.
Signed on behalf of the Labour Court
27th April 2015______________________
Enquiries concerning this Determination should be addressed to Helen Tobin, Court Secretary.