ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016951
Mandate Trade Union
Arthur Cox Solicitors
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
Date of Adjudication Hearing: 26/11/2018
Workplace Relations Commission Adjudication Officer: Marie Flynn
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant works as Relief Staff in a retail bookmakers on a weekly salary of €259 for a 24 hour week.
The Complainant has submitted a complaint to the WRC alleging that the Respondent has breached the provisions of Section 12 of the Organisation of Working Time Act in relation to their entitlement to statutory rest breaks.
Preliminary Issue – Correct Respondent
Summary of Respondent’s Case:
The Respondent submits that the Respondent named on the complaint referral form was not the Complainant’s actual employer. The Respondent requested that the complaint referral form be amended to reflect the correct name of the Complainant’s employer.
Summary of Complainant’s Case:
The Complainant was accompanied at the hearing by their trade union representative who did not object to the Respondent’s request to change the Respondent named on the complaint referral form to the Complainant’s actual employer.
Findings and Conclusions:
I must first decide whether the Respondent named on the complaint referral form can be changed to the correct name of the Complainant’s employer.
In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.
Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.
In County Louth VEC –V- Equality Tribunal  IEHC 370, the High Court found that:
“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”
I note that it is the Respondent who has sought the change of name. I further note that there is no dispute about whether the complaint is properly before the WRC and that the correct Respondent has submitted to the jurisdiction of the WRC. I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name as requested.
Accordingly, I am prepared to accede to the Respondent’s application to amend the name of the employer on the complaint referral form.
Substantive Issue – Complaint under Organisation of Working Time Act
Summary of Complainant’s Case:
The Complainant submits that:
The Complainant has not received their statutory break entitlements throughout the course of their employment.
The Complainant has made the Respondent aware that they are not receiving their correct breaks and at no point has the Respondent addressed the issue or indeed put in place any measures which would ensure that the Complainant can avail of the rest breaks to which they are legally entitled.
The Respondent has a legislatively prescribed duty to ensure that the Complainant is afforded their correct break entitlements and that they as an employer are operating within the confines of the Organisation of Working Time Act. It is not appropriate for the Respondent to attempt to put the onus on the Complainant to take their breaks.
The Respondent does not have a clocking facility in operation in their stores, nor does the Respondent have any documentation to prove that the Complainant has taken rest breaks. There is an onus on the Respondent to provide such evidence and without this, there is no way in which the Respondent can refute the assertions of the Complainant.
The Respondent makes no reference to break entitlements in their staff handbook or indeed through any signage in store. It would appear strange for the Respondent to assert in their submission that staff are actively encouraged to take breaks yet make no reference to this encouragement by way of correspondence or indeed inclusion in their staff handbook
The Respondent makes reference to the Electronic Point of Sale (EPOS) system, the purpose of which is to record sales. They also submit that by logging in and out daily on this system, this provides an accurate record of work carried out versus time not working. The Complainant wholly refutes this argument. The Respondent operates busy retail betting outlets. The Complainant spends a huge amount of their time dealing with customers which cannot be captured by the EPOS system. The Complainant is constantly at the disposal of their employer for the full duration of their working day.
The Respondent in the past has absurdly suggested that by providing canteen facilities they are somehow demonstrating that the Complainant is in receipt of rest breaks. The notion that providing tea and coffee somehow discharges them of their duty to ensure rest breaks are both provided and recorded is wholly misguided.
The Respondent has wholly failed to discharge their duty to provide rest breaks and put in place proper procedures to ensure that they are taken.
When considering a similar case in Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 6/2004) the Labour Court held that an employer had not only an obligation to ensure that their employees received rest breaks but that; "...stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty".
The Respondent may seek to rely upon the judgement Stasaitis v Noonan Services Group Ltd120141 E. l. R. 17. It is the Complainant’s contention that it is absurd to attempt to draw comparisons to the present case and that of Stasaitis. Working in a security hut monitoring traffic is wholly different to working in a demanding retail environment and dealing with the public as front facing staff. Unlike in Stasaitis, there are no levels of inactivity whereby the Complainant can decide to avail of a break nor do they have the luxury of shutting the door to customers.
Summary of Respondent’s Case:
The Respondent submits that:
The Complainant has received their rest break entitlements under the Organisation of Working Time Act 1997.
The Respondent’s position has at all times been, and continues to be, in full compliance with its obligations under the Act.
The Respondent has implemented a series of policies, missed break recording technology and training in order to ensure that it can demonstrate that its employees receive proper rest breaks in accordance with the Act. This multifaceted approach involved significant development time and commitment of resources in order for its implementation to progress through several stages.
The Respondent has formulated several iterations of a formal rest breaks policy.
The first version of the Policy was issued to all of the Respondent’s employees on 1st May 2018. This version of the Policy outlined employees’ entitlements under the Act and described the rest breaks process as follows:
“The Shop Manager in each shop is required to ensure that all employees are afforded the opportunity to take a break. Every effort must be made by the Shop Manager or Deputy Manager to ensure that each employee is afforded the opportunity to take rest breaks during their shift.
Where a break is missed, the Shop Manager or most senior person on shift is responsible for ensuring that employees are provided with an opportunity to take a break as soon as possible after they have missed their break.
If for whatever reason, it is not possible to take a rest break during a shift, the Shop Manager is responsible for recording any missed breaks. This report will be shared with District Managers on a daily basis to ensure compliance.
Missing a break should be the exception rather than the rule.”
On 27 July 2018, the Respondent emphasised its policy by issuing a further update of the Policy to employees. This clarified the rest breaks process further by emphasising the importance of proper time recording through the addition of the following paragraph:
“Working shifts are recorded through an employee’s log in and log out of the EPOS system. The EPOS system supports payroll calculations. When an employee reports for work they must log in to the EPOS system and when they are finishing the shift you must log out of EPOS.”
On 21 September 2018, the Respondent again reiterated to employees the processes and procedures to be followed and a further improved version of the Policy was issued to all of the Respondent’s employees. Once again, the Policy outlined employees’ entitlements under the Act under “Section 2” of the Policy and clarified the following:
“It is the responsibility of each Shop Manager to ensure that all employees take their rest break entitlements. In turn, the District Manager is required to ensure that each Shop Manager takes the Shop Manager’s rest break entitlements….
…You as an employee must log in to the EPOS system when starting your working day and you must log out of the EPOS system when you end your working day. This is critical to recording the commencement and the end of an employee’s shift. You do not need to clock out and clock in again for the purposes of your rest breaks….
…All employees must take the rest breaks set out in Section 2.
…If a Shop Manager fails, without reasonable excuse, to ensure that the employees in their shop are receiving their rest break entitlements (or the District Manager fails to ensure that a Shop Manager is receiving the Shop Manager’s rest break entitlements), this may result in the initiation of the disciplinary process.
It cannot be overstated that every effort must be made by the Shop Manager or Deputy Manager or other appropriate designated person to ensure that each employee takes the rest breaks they are entitled to during their shift.
If you as an employee are unable to take any of your rest breaks to which you are entitled, you must notify your Shop Manager (or if you are the Shop Manager, you must notify the District Manager) of your missed rest break and the reason why you were unable to take that rest break by completing and returning the form at Schedule 1 to this policy. This must be completed on the same day as the break which is missed.
Where a break is missed and the Shop Manager or most senior person on shift is made aware of same by receipt a completed copy of the form at Schedule 1 to this policy, those persons must ensure that the employee in question is provided with an opportunity to take his or her rest break as soon as possible after they have missed their break, and if at all possible during the same shift.
If for whatever reason, it is not possible to take a rest break during the same shift, the employee must receive an equivalent break in lieu during the following day’s shift.
The Shop Manager must compile a report of any missed rest breaks and this report will be shared with District Managers on a daily basis to ensure compliance.
Missed breaks should not occur except for in the most exceptional circumstances and even then, a break in lieu must be provided without delay.”
It is submitted that the iterative and evolving nature of the Policy highlights the degree of commitment the Respondent is giving to the issue of rest breaks.
The Respondent has long employed EPOS software for the purposes of calculating payroll. The Respondent’s employees were already familiar with this technology. The Respondent informed employees that they must log in and log out at the beginning and end of every shift.
From late April onwards, the Respondent began to roll out the ability to log a “missed break” on a district-by-district basis through its XXX application.At the point of this roll-out, each Claimant received a version of the guide to recording missed breaks and a copy of the Policy. Employees were reminded of the importance of taking their rest breaks and were notified that missed breaks must be logged.
In addition to staff communications and the Policy, the Respondent has also offered, and is in the process of offering, training to employees on their entitlements to rest breaks. This training was made mandatory for those at manager and deputy manager level to ensure they were aware that they must direct staff to take their rest break entitlements and lead by example on this issue. The training was available to staff at all levels, and was completed by five staff members for whom it was not mandatory.
Submissions in relation to Section 12 of the Act
It is the Respondent’s case that the Complainant received their rest break entitlements under Section 12 of the Act. As detailed above, the Respondent has made extensive efforts to ensure that the Respondent can demonstrate same.
The Respondent operates its retail stores (betting shops) so that each Shop Manager is responsible for preparing the rosters and ensuring that all employees take their rest breaks in accordance with Section 12 of the Act. Shop Managers are also authorised to bring in relief staff where required to ensure that staff on duty can avail of breaks.
The Respondent’s District Managers are required to ensure that each Shop Manager takes their rest breaks in accordance with Section 12 of the Act.
The Respondent recognises that employees’ needs differ and in that regard, employees adapt and take their breaks in a manner that suits their own needs. For example, employees’ rest break habits include having lunch off-site, meeting other employees for lunch, buying lunch and bringing it back to the shop, and preparing lunch/dinner in the kitchen where provided.
The nature of the business and industry that the Respondent’s retail shops operate within involves a large element of variability and accordingly requires a large element of flexibility. The factors which drive this include the peaks and troughs in the racing season and the times at which major races are scheduled. As a result, the Respondent’s retail stores can experience different peak hours and different peak days throughout the year. This is another reason why the scheduling of specific breaks in rosters is not desirable and further necessitates the Respondent’s system whereby Shop Managers are responsible for ensuring that employees take their rest break entitlements. Notwithstanding the above, during periods of particularly high activity (for example Cheltenham, the Grand National etc.) staff numbers are increased to ensure sufficient opportunities for rest breaks are maintained.
The Respondent’s implementation of the EPOS / XXX technology enables full compliance with the Act, as it requires employees to record the details of their working hours and to report the details of any missed rest breaks so that shop managers can require them to take another rest break as soon as possible thereafter. If an employee reports that they have missed a break, the typical compensatory measures would be for that employee to take equivalent time off in lieu.
Submissions in relation to Regulation 5 of the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001
The Respondent has invested significant time and resources into developing a solution to better demonstrate its compliance with Section 12 of the Act.
In respect of the recording of rest breaks, the Respondent complies with the exemption from section 25(2) of the Act set out in Regulation 5 of the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 (S.I. No. 473 of 2001).
The Respondent complies with each condition of the exemption as prescribed in Regulation 5 of the Exemption Regulations, specifically:
· The Respondent operates “electronic recordkeeping facilities” (in accordance with Regulation 5(a)(i)) as it has informed employees that they must log on and log off of the EPOS software at the beginning and the end of the day respectively;
· The Respondent has notified each employee in writing of their rest break entitlements under sections 11, 12 and 13 of the Act (in accordance with Regulation 5(a)(iii));
· The Respondent has implemented procedures by which employees may log missed rest breaks (in accordance with Regulation 5(a)(iv));
· The Respondent has kept a record of notifying the employees of such matters (in accordance with Regulation 5(a)(v)); and
· The Respondent keeps a record of each of these logged missed break (in accordance with Regulation 5(a)(v)).
· The Respondent has communicated such matters in writing through the Policy.
· The Respondent has further complied with these procedures which it has put in place. It has acted on each of the Claimant’s logged missed breaks without fail. The Respondent has thus ensured that its employees received their rest break entitlements under Section 12 of the Act.
The Respondent anticipates the Complainant may rely on the Labour Court determination in Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 46/2004). In this case the court held that an employer was under a duty to ensure that employees received their rest breaks and that:
“stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.”
The Respondent submits that this case is wholly distinguishable from the facts of the present claims in a number of crucial respects, specifically:
· The Respondent has not stated that the Complainant could take their rest breaks but rather that the Complainant must take their rest breaks;
· The Respondent does not merely state what should occur. The Respondent has instead developed and implemented robust procedures to ensure the Complainant receive their rest breaks, including a clear mechanism by which any missed rest break can be identified and remedied; and
· The Respondent explicitly instructed managers to ensure that the breaks were taken.
The Respondent relies on the High Court judgment of Mr Justice Kearns in Stasaitis v Noonan Services Group Ltd  E.L.R. 173. While the Stasaitis case dealt with the general exemptions, the judgment is still relevant. The relevant facts in Stasaitis related to a security guard who was employed to monitor traffic in and out of a warehouse facility. He worked eight hour shifts and during those shifts he was not permitted to leave the security hut. The employer did not schedule specific breaks over the course of each shift but left it to the complainant to take rest breaks during periods of inactivity. The employer provided kitchen facilities within the security hut.
Mr Stasaitis initially brought his case before the Rights Commissioner who rejected his claim. Mr Stasaitis appealed to the Labour Court which determined as follows:
“The Court notes that the claimant worked for the respondent for three years during which time he made no complaint in relation to the matter now before the Court. The Court is satisfied as a matter of probability that the claimant was told that he could take breaks during periods of inactivity during the course of his shift. The court is further satisfied that the presence of cooking facilities in the security hut must have made it clear to the claimant (if he was ever in any doubt) that he could avail of breaks while at work. It is not denied that the claimant did in fact take breaks…
Based on the above facts, Kearns J had no difficulty with the concept of the employee determining when he would take his rest break. The High Court did not stipulate the need for the employer to set the break times. Neither does the Act prescribe that specific break times must be set. In the circumstances of that claim Kearns J held the requirement to provide compensatory rest periods (equivalent to the rest breaks in the present instance) had been complied with.
As cited in Stasaitis, the UK Court of Appeal in Hughes v. Corps. of Commissionaires Management Ltd (No. 2) EWCA Civ 1061 CA stated that a rest break:
“must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation...”
In Gallagher and others v Alpha Catering Services Limited  EWCA Civ 1559 the UK Court of Appeal held as follows:
“The worker is entitled under [UK] Regulation 12(1) to a rest break if his working time exceeds six hours, and he must know at the start of a rest break that it is such. To my mind a rest break is an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases.”
The Respondent submits that the principles set down by the High Court in Stasaitis and by the UK Court of Appeal in Hughes and Gallagher are met in that its employees have always been able to take their rest breaks, have been reminded of their entitlements to their rest breaks, have been directed as to how to report any missed rest breaks and that Shop Managers are responsible for ensuring that employees take their rest breaks.
Employees have always:
· been uninterrupted on such breaks; and
· could use the break time as they pleased (i.e. are free to leave the store or remain in store using the break facilities).
In this regard, the Respondent provides kitchen/canteen facilities in its stores for its employees to use for breaks. While the specifics vary, most stores have a separate kitchen/dining area equipped with refrigerator, grill, toaster, microwave and kettle. The Respondent funds the provision of tea, coffee, sugar, milk and sundries by way of a weekly petty cash fund in each store.
Findings and Conclusions:
The complaint referral form was received by the WRC on 21st September 2018. The cognisable period of the complaint is therefore the six-month period from 22nd March 2018 to 21st September 2018 inclusive.
Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks 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).
(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 issue at the heart of this referral is whether the Complainant received the breaks to which they are entitled under Section 12 of the Act. The Complainant alleges that they did not receive such breaks.
To demonstrate that they did get their breaks, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:
“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 and, where applicable, the Activities of Doctors in Training Regulations 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.”
In the herein case, the Respondent is relying on the provisions of the Regulation 5 of the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 to provide them with an exemption from their record keeping obligations under Section 25(1) of the Organisation of Working Time Act.
Regulation 5 states:
(1) For the purposes of these Regulations and subject to paragraph (2), the following classes of employer are exempt, by virtue of section 25(2), from the obligation to keep records of rest breaks—
(a) employers who have electronic record-keeping facilities such as flexi-time or clocking-in facilities, and
(b) employers who have manual as opposed to electronic record-keeping facilities and who are required to keep records in accordance with Regulation 4.
(2) The exemption under paragraph (1) shall only apply to an employer if he or she complies with the following conditions—
(a) the employer notifies in writing each employee of the rest periods and breaks referred to in sections 11, 12 and 13 or, in case of the non-application of one or more of those sections (by virtue of regulations referred to in section 4(3), a collective agreement or a registered employment agreement referred to in section 4(5), or an employment regulation order referred to in section 4(6)) of the terms of such regulations, collective agreement, registered employment agreement or employment regulation order and, in particular, of the requirement contained in section 6(1),
(b) the employer puts in place, and notifies in writing each employee of procedures whereby an employee may notify in writing the employer of any rest period or break referred to in sections 11, 12 and 13 of the Act to which such employee is entitled and was not able to avail himself or herself of on a particular occasion and the reason for not availing of such rest period or break,
(c) the employer keeps—
(i) a record of having notified each employee of the matters provided for in paragraph (a),
(ii) a record of having notified each employee of the procedures provided for in paragraph (b), and
(iii) records of all notifications made to him or her by each employee in accordance with those procedures.
(3) A notification made to an employer by an employee under paragraph 2(b) shall be made within 1 week of the day on which the rest period referred to in that paragraph became due to, but was not availed of by, the employee. Where such notification is duly made the employer, having regard to the circumstances pertaining to the work of the employee and to the employee's health and safety interests, shall, as soon as possible, make available to the employee such rest period or break as is equivalent to the rest period or break which had been due to, but had not been availed of by, the employee. Failure by an employee to avail of such equivalent rest period or break offered by an employer shall not constitute a breach on the part of the employer under the Act or these Regulations.
As the Respondent is asserting a right to an exemption from keeping records as set out in Regulation 5 of the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001, my task is to determine if this exemption applies.
In order for an employer to secure an exemption under Regulation 5, they must satisfy a number of criteria.
The first criteria to be satisfied is the requirement to “have electronic record-keeping facilities such as flexi-time or clocking in facilities”.
The Respondent has cited the High Court case Stasaitas v Noonan Services Group Ltd  ELR 173as an authority for the proposition that the Act does not require breaks to be specified in all circumstances. However, the Complainant in that case was a security guard and, therefore, works in an industry which under the Organisation of Working Time (General Exemptions) Regulations, 1998 is exempt from the requirements of Section 12 of the Act. It is my view that the precedent quoted is not relevant in the herein case.
I note the Respondent’s contention that it has always complied with its obligations under Section 12 of the Act.
In order for the Respondent to demonstrate compliance with Section 12 they are required under Section 25(1) to keep appropriate records unless exempted by the 2001 Regulations to do so.
It is well settled that appropriate records under Section 25(1) should show the timing and duration of employees’ breaks.
It follows, therefore, that if the electronic record-keeping facilities referred to under Regulation 5 are to be relied on for the purposes of an exemption, then they must be capable of providing a record not only of employees start and finish times but also of the time and duration of their breaks.
I note the Respondent’s submission that they have long employed EPOS software for the purposes of calculating payroll. In evidence, the Respondent submitted that they had informed employees that they must log in and log out at the beginning and end of each shift. However, it is clear from the evidence adduced, that the EPOS system was not primarily designed to manage time and attendance and does not provide the functionality to record the time and duration of employees’ breaks.
Accordingly, I find that the Respondent does not satisfy the first criteria of Regulation 5 and, therefore, cannot rely on the Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 to provide an exemption from the requirements of Section 25(1) of the Act to keep records of breaks.
I further note the Respondent’s submission that it has introduced a Rest Break Policy in compliance with the requirement under Regulation 5(2) to notify each employee of their entitlement to breaks and the putting in place of a missed break policy.
The Respondent relies on its Rest Break Policy to differentiate this case from the Labour Court case Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 46/2004) where the Labour Court determined that:
“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks. Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.”
The first hurdle to be overcome is the requirement to show that there is an electronic system in place which is capable of recording rest breaks. I am not satisfied that the EPOS system delivers this capability.
In light of my finding that the Respondent does not satisfy the first criteria of Regulation 5, I am of the opinion that the existence of a Rest Break Policy cannot be persuasive in arguing the case for an exemption under the Regulations.
Taking all of the above into consideration, I have reached the conclusion that the Respondent does not keep appropriate records to show that employees are getting the breaks to which they are entitled under Section 12 of the Act.
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 this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €650.
Workplace Relations Commission Adjudication Officer: Marie Flynn
Hourly rest breaks