ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044057
Parties:
| Complainant | Respondent |
Parties | Daithi Oduibhir | Thurles Tiles And Timber Floors Ltd |
Representatives | Self Represented | Self Represented |
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-00054611-001 | 22/01/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054611-002 | 22/01/2023 |
Date of Adjudication Hearing: 12/09/2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed. Post Hearing correspondence took place.
Background:
The Complainant was employed from 9/5/2022 to 10/12/2022 He submitted two claims to the WRC on 22/1/2023. The complaint under the Terms of Employment (information) Act related to him not getting written notice of his change in job title and the complaint under the Organisation of Working Time Act related to not receiving breaks while employed. |
Summary of Complainant’s Case:
The Complainant, in evidence, stated he was let go and was not notified in writing why he was let go and there was no indication that he would be left go. He advised he was due to take a week holiday and was asked to work the week when the Respondent knew he was going on holiday. He advised he was hired as Sales Manager and his job involved other duties such as doing deliveries, stock etc and this amounted to 80% of the job functions. He advised he had no written contract and his salary was not reduced. The Complainants specific claim was that he was not notified in writing of changes to his terms and conditions of employment. In relation to breaks he advised he took his breaks at the desk every day and his break was often interrupted by customers and he got no break when the Owner was off two days a week. He advised the breaks were not defined and were ad hoc and he could not sit down and have his break. The Complainant stated he did not have time to go to the bathroom some days. |
Summary of Respondent’s Case:
The Respondent confirmed he did not give the Complainant a written contract. The Respondent confirmed he did not keep records of breaks. The Respondent advised he did not take off two days of every week and only took one day off. He advised the Complainant could take 45 minutes off every day and that he chose to stay in the premises and would be continually talking during his break. He advised the store was not very busy and had about 8 or 10 customers a day and they could take between 5 and 20 mins (approx.) to deal with. He advised he was very flexible with the Complainant to take personal zoom calls and time off for family reasons. He denied that the Complainant did not have the time to go to the bathroom. The Respondent denied the Complainant was hired as Sales Manager and advised that the Complainant applied for a sales person role. The Respondent subsequently advertised a Sales Manager role but this was not filled. He advised the Complainants role was sales, stock, deliveries and meeting customers. The Respondent advised he had issue with the performance and choice of words on one occasion of the Complainant but liked him personally as he was a family man like the Respondent. |
Findings and Conclusions:
Complaint under the Organisation of Working Time Act
The Law
Section 12 of the Act provides:
“12. Rests and intervals at work (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 he 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”.
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 evidence of both parties varied quite significantly on whether breaks were taken. The Respondent stating the Complainant took his breaks and was free to leave the premises and while taking his breaks on the premises he was not interrupted. The Complainant stated he had to remain at his desk and was often interrupted during his break by customers and at least once a week had to cover for the Owner on his day off. There was no set times for breaks and this is not a legal requirement unless set out in a contract of employment or collective agreement. The requirement for breaks is set out in the Act under 12.1 and 12.2 above. The Respondent stated that the store only had about 10 customers a day and the maximum amount of time per customer required was approximately twenty minutes. That’s the equivalent of about two hours. However, both parties agreed other tasks were done by the Complainant so it is impossible to determine how many hours per day the Complainant worked and how much time he had to take breaks. What is not in contention is that the Respondent did not keep records of the Complainants breaks and this is a breach of Section 25 of the Act. It is on this ground that the complaint must succeed but the conflicting evidence about if breaks were taken or not has to be taken into account. I find in favour of the Complainant and award him 900 Euros compensation for breach of his employment rights. In calculating this compensation I have assessed the approximate time the Complainant worked but did not receive a break.
Complaint under the Terms of Employment (information) Act
The Law;
Section 3 of the Act, titled written statement of terms of employment states:
(1) An employer shall, not later than [1 month] 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”
Section 5 of the Act titled notification of changes 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, 4 or 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) the day on which 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. (2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute [other than a registered employment agreement or employment regulation order] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.” It was agreed from the submission and evidence of both Parties that no written contract was provided to the Complainant. On April 20th 2022 the Complainant sent an email to the Respondent applying for the position of “salesperson”. This seems to make his argument that he was hired as a Sales Manager invalid. However, this is not a key issue legally as the Adjudicator is required to consider the Act as written. The relevant wording in Section 5 is as follows
“(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, 4 or 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 the day on which the change takes effect”.
Sections 4 and 6 of the Act do not apply to the Complainant as they deal with employment outside the State and existing contracts at the time of the enactment of the Act.
The legislation, as written, presupposes that particulars of a statement of terms has been given for a breach to take place by not notifying the employee, in writing, of the change to the term within a month. In my assessment of this situation no change of job title occurred and as there was no statement given in the first place, no breach of the Act could result by not giving notice of a change to a non-existing written statement.
The Adjudicator determines that there has been no legal breach of the Act and the complaint is not well founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
With regard to the complaint under the Organisation of Working Time Act 1997 I find in favour of the Complainant and award him 900 Euros compensation. (CA-00054611-001)
With regard to the complaint under the Terms of Employment (Information) Act 1994 I find that there was no breach of the Act and find in favour of the Respondent. CA-00054611-002)
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Dated: 04th October 2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Breaks |