ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00008747
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sous Chef | A Public House |
Complaint(s):
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-00011093-005 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00011093-006 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00011093-007 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00011093-008 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 |
CA-00011093-009 | 02/05/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 |
CA-00011093-010 | 02/05/2017 |
Date of Adjudication Hearing: 31/08/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The Complainant, a Sous Chef, commenced employment with the Respondent, a Public House, on 21st October 2015. He is still an employee and his weekly gross pay is €670.00. A Complaint Form was received by the WRC on 2 May 2017.
1) CA-00011093-005- Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant stated that he never got the breaks he was entitled to under the Act. He stated that he started work at 12.00 hrs and worked to 21.00 hrs during the week and on Saturdays from 10.00 hrs to 21.00 hrs, without breaks. He had never been issued with a written contract and was not aware that he had to work 44 hours per week as implied by his employer.
Summary of Respondent’s Case:
The Respondent denies the allegation and stated that breaks were given but were not recorded. An employee Handbook was introduced in April 2016 which detailed the requirements for breaks. The Respondent stated that if the Complainant had a difficulty about breaks he should have raised a grievance on the issue. The Respondent's head Chef stated in evidence that it was up to the Complainant to take his own breaks when he was the senior person on duty in the kitchen, which was the majority of the time.
Findings and Conclusions:
Section 12 of the Act states:
- — (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).
There is a distinct conflict of evidence in relation to this matter. Without records it is virtually impossible for the Respondent to prove that breaks were given. In my view it would seem that the taking of breaks was haphazard, with breaks being taken sometimes but not all the time. What is clear is that the Respondent did not ensure breaks were taken as required under the Act.
On the balance of probabilities I find that the Respondent has breached Section 12 of the Organisation of Working Time Act, though it is impossible to quantify the breach.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I order the Respondent to pay the Complainant €500 compensation for the breach of this Act within six weeks of the date below.
2) CA-00011093-006 Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant alleges that he did not receive his public holiday entitlements. The Complainant submitted that when there was a public holiday he was required to work but he was given an extra day off the following week or if he was off on the public holiday he was still required to work his normal weekly hours therefore negating the benefit of the public holiday.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant was always given a paid day off on the public holiday or a paid day off within the month or an extra day's annual leave. The respondent supplied documentary evidence to support this position.
Findings and Conclusions:
Section 21 of the Act states:
- — (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.
(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
The Complainant's claim is somewhat contradictory and the Respondent has evidence to support his position.
On the balance of probabilities I find that the Complainant did receive his due entitlements under the Act.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint fails.
3) Complaint CA-00011093-007 Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant alleges that he was never issued with a written contract of employment despite numerous requests for same.
Summary of Respondent’s Case:
The Respondent does not dispute this claim.
Findings and Conclusions:
Section 3 of the Act states:
- — (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,
The Respondent does not deny this allegation and so the complaint is upheld.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent breached Section 3 of this Act.
I order the Respondent to pay the Complainant €400 compensation within six weeks of the date below.
4) CA-00011093-008 Terms of Employment (Information) Act, 1997.
Summary of Complainant’s Case:
The Complainant stated that he was not notified of a change to his terms of employment.
The Complainant alleges that in July 2016 he got a pay increase but there was nothing given to him in writing to confirm the increase. The Complainant alleges that he was paid in cash and asked for a payslip which was never provided.
In addition the Complainant stated that he was told at this time that his contract was that he work a minimum of 43/44 hours per week which came as a surprise to him. When he asked to see his contract his employer realised that no contract had been issued.
Summary of Respondent’s Case:
The Respondent stated that when the Complainant was given a pay increase it was done properly and he was provided with payslips.
The Respondent did not deny that the Complainant had not been issued with a contract of employment but that his hours were to be 43/44 per week.
Findings and Conclusions:
Section 5 of the Act states:
- — (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—
( a) 1 month after the change takes effect, or
( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
When the Complainant was never issued with a written contract of employment then disagreements about conditions of employment are inevitable, particularly when changes or perceived changes take place. The failure lies with the Respondent not issuing a written contract in the first place.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the Respondent has breached Section 5 of the Act.
I order the Respondent to pay the Complainant €200 compensation within six weeks of the date below.
5) CA-00011093-009 Regulation 18 of the European Communities (Road Transport) (Organisation of working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.
Summary of Complainant’s Case:
The Complainant alleges that the Respondent is not keeping statutory employment records.
Summary of Respondent’s Case:
The respondent submitted that all staff were requested to fill in a form in April 2016 with their details on it. The Respondent submitted that holidays are recorded on an annual leave planner and rosters, that hours worked are recorded on rosters and by payroll and from May 2017 all breaks are recorded.
Findings and Conclusions:
Section 3 of S.I. 36 of 2012 lays out the Scope of the Regulation as follows:
This Regulation applies to:
(a) mobile workers who are employed by or who do work for one or more undertakings established in a Member State, and
(b) self-employed drivers,
participating in road transport activities to which either the Council Regulation or the AETR applies.
This Regulation does not apply to the Complainant.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complainant is not covered by this Regulation and therefore the complaint fails.
6) CA-00011093-010 Section 13 of the Industrial Relations Act, 1969.
Summary of Complainant’s Case:
The Complainant submitted that on 27th April 2017 he was addressed by the owner of the Public House in a very aggressive tone and felt intimidated by this, he thought he was going to lose his job. The Complainant told his immediate manager but nothing was done about the matter. The Complainant said he felt like no one cared about him or his mental health. The issue has caused him much distress and he is now suffering from high blood, high stress levels and sleepless nights.
Summary of Respondent’s Case:
The Respondent's manager stated that he remembered the day in question and it was evidence that the Complainant had become very agitated when told that a Health inspector was coming. The manager denied that he had raised his voice, although he agreed the discussion did become heated. The manager also stated that this was the first time that he had had cross words with the Complainant in their 18 month long working relationship.
Findings and Conclusions:
I believe there was an argument between the Complainant and the manager on the day in question however one argument does not amount to bullying.
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that a mediation process be put in place so the two protagonists can find a way to put this matter behind them and to ensure a healthier working relationship for the future.
Key Words:
Breaks, Public Holidays, Contract of Employment, |
Dated: 16.11.17
Workplace Relations Commission Adjudication Officer: Roger McGrath