ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005761
Complaints:
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-00008028-001 | 07/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00008028-002 | 07/11/2016 |
Date of Adjudication Hearing: 05/10/2017
Workplace Relations Commission Adjudication Officer: John Walsh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, and under section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant is employed as a Line Manager with the Respondent. He commenced employment on the 3rd November 2008. He is paid a monthly salary of €2,800 gross. He alleges that the Respondent failed to provide him with daily rest periods of at least 11 hours per day contrary to section 11 of the 1997 Act. He also alleges that the Respondent failed to provide him with rest breaks contrary to section 12 of the 1997 Act. He filed the complaint with the WRC on the 7th November 2016. |
Summary of Complainant’s Case:
Complaint 1: CA-00008028-001 in relation to alleged breaches of section 11 of the 1997 Act The Complainant’s representative outlined the following submission: The Respondent failed to provide the Complainant with daily rest periods of at least 11 hours contrary to section 11 of the 1997. The Complainant’s reference period is the 6 months prior to him lodging his complaint and would therefore run from 7th May 2016 to 7th November 2016, in ordinary circumstances but due to his absence from August 2016 to date the period from the 7th May 2016 to 18th August 2016 is the appropriate period in relation to this claim. There were 14 breaches of the 11-hour rule as set out in records submitted at the hearing. This is entirely contrary to the submission set out by the Respondent. Complaint 2: CA-00008028-002 in relation to alleged breaches of section 12 of the 1997 Act The two most commonly cited provisions of section 12 are sections 12(1) and 12(2) 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). There is a view expressed by some employers and their representatives that this means that after four and half hours the employee must receive a 15 minute break and a further one and half hours a further 15 minute break. This is not the position. If an employer after 4 hours and 30 minutes provides the employee with a 15 minute break then after a further one hour and 30 minutes the employer must provide the employee with a 30 minute break. If however the employer after 4 hours and 30 minutes provides the employee with a 30 minute break this complies with the provisions of subsection (1) and subsection (2). The employee can then work for a further period of 4 hours and 30 minutes before the employer must provide the employee with a further 30 minute break. The Respondent, in their Handbook at pages 19 and 25, set out their own policy on rest and breaks, but have blatantly and unashamedly failed to adhere to either in this instant case. The Respondent have raised the argument that it is a matter for the employee to take their own breaks, this is not the position. The law required the employer to ensure that the rest intervals at work are not only scheduled and that those rights are in some policy or other documentation but that those rights are actually observed. The Respondent has not such records at all. The Complainant would typically commence work at 7am, 8am or 12pm. When he started at 7 or 8 in the morning, in any given week he would not get a break until 1 or 2pm at least twice a week. When he started at 12 he would not get a break until 5pm at the earliest. |
Summary of Respondent’s Case:
Complaint 1: CA-00008028-001 in relation to alleged breaches of section 11 of the 1997 Act The Respondent’s representative outlined the following submission: The Complainant is a Line Manager with the organisation. He is fully aware of the obligations relating to section 11 of the 1997 Act. If he failed to take daily rest periods he should have been aware as a manager that he was breaching the act and he should have brought the matter to the attention of the organisation. The Respondent strongly refutes the Complainant’s allegation that he “would frequently be required to stay beyond his finish time”. The Complainant has set shift times for which he is required to attend work and which have been developed in line with the provisions of the Organisation Working Time Act. The Respondent would argue that there was no expectation or “requirement” on the Respondent’s behalf for the Complainant to work beyond his rostered hours. Furthermore, the Complainant’s position that he frequently “complained” to members of management and HR are completely unfounded as the first time the Respondent became aware that the Complainant had any concerns regarding his working hours was by letter of the 14 September 2016, after his current absence commenced. In this letter the Complainant made serious allegations that he attributed his absence to “inadequate rest periods and break periods I have received”, without providing any exact dates, times or details of the alleged incidents. Nevertheless the Respondent scheduled numerous meetings with the Complainant in an attempt to understand his claims better and try to facilitate his return to work, however, the Complainant refused to engage with the company and referred the matter to his legal representative and the WRC. Complaint 2: CA-00008028-002 in relation to alleged breaches of section 12 of the 1997 Act Due to the nature of the business it is not feasible for senior management to roster break times. Instead the line management team decide the break and lunch times among themselves and for their team members at their discretion on a daily basis. Therefore, all member of the management team are clearly aware of their daily rest breaks entitlements and are expected to avail of these or notify senior management in circumstances where they were unable to do so. Notwithstanding that the Complainant clearly understood his break entitlements as stated in his claim form, all employees are notified in writing of their rest break entitlements to breaks via the company handbook. The Complainant signed to confirm his receipt of same in October 2012. The rest break policy clearly stipulates who to contact if an individual is unable to avail of his/her rest break entitlements, citing “if you are unsure about any aspect of roster or if you believe you have not received an entitlement please speak to your Personnel Manager”. As a member of the management team with significant autonomy around taking rest breaks, it is reasonable to expect that the Complainant would have brought any purported failure to receive breaks to the attention of his own manager or the Personnel Manager while he was at work. Had he done so he would have been advised to take compensatory rest in accordance with the provision of the Organisation of Working Time Act 1997. The fact that the Complainant took responsibility for insuring this own team members avail of their rest breaks, it would be reasonable to conclude that he would be aware of the obligation to take rest break himself as required by the law. |
Findings and Conclusions:
Complaint 1: CA-00008028-001 in relation to alleged breaches of section 11 of the 1997 Act Based on the evidence presented at the hearing I find as follows: It is clear from the evidence presented and the documents provided by the Complainant that the Respondent failed to provide the Complainant daily rest periods of at least 11 hours contrary to section 11 of the Organisation of Working Time Act 1997. The Respondent should have a mechanism in place to ensure that any breaches of this section are monitored and remedied. The Respondent failed to monitor these breaches. Complaint 2: CA-00008028-002 in relation to alleged breaches of section 12 of the 1997 Act The Respondent failed to keep any records to monitor compliance of section 12 of the Act in relation to the Complaint. The Respondent should have a mechanism in place to ensure that any breaches of this section are monitored and remedied.
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Decision:
Section 27(3) of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of that Act.
Complaint 1: CA-00008028-001 in relation to alleged breaches of section 11 of the 1997 Act Based on the evidence presented at the hearing, I find that the complaint is well founded. The Respondent breached section 11 of the Act in relation to the complainant. I order the Respondent to pay to the Complainant €1,000 for breaches of section 11 of the Act. This sum must be paid within six weeks of the date of this decision. Complaint 2: CA-00008028-002 in relation to alleged breaches of section 12 of the 1997 Act Based on the evidence presented at the hearing, I find that the complaint is well founded. The Respondent breached section 12 of the Act in relation to the complainant. I order the Respondent to pay to the Complainant €1,000 for breaches of section 12 of the Act. This sum must be paid within six weeks of the date of this decision. |
Dated: 16/11/2017
Workplace Relations Commission Adjudication Officer: John Walsh