Complainant

Respondent

Parties

Mark Alcock

Knights Tower Trading Limited trading as Knightsbrook Hotel Spa and Golf Resort

Representatives

  Self-Represented

Lorna Madden B.L. instructed by Peter Mounsey of Murphy Lynam Solicitors

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-00060338-001

01/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00060338-002

01/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00060338-003

01/12/2023

The Complainant commenced employment with the Respondent in September 2019 as a Sous Chef and was promoted to Head Chef in June 2022. As Head Chef he earned €70,000 per annum. On the 3rd October 2023 the Complainant handed in a letter of resignation and his employment ended on the 12th November 2023. 

The Complainant referred a complaint to the WRC on the 1st December 2023 wherein he claimed that the Respondent breached sections 11, 13 and 15 of the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”). The Respondent denied the complaints in their entirety and submitted that the 1997 Act does not apply to the Complainant in circumstances where the Complainant had complete control over his working hours.

The Complainant was not represented and made his own case. He relied on the narrative as outlined in the WRC Complaint Form and the written submissions dated the 28th February 2024 and the  updated submissions dated the 13th May 2024 and supplemental documentary evidence. The Complainant gave oral evidence in support of his case and the evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent had full legal representation at the hearing.  The Respondent provided me with a written submission dated the 24th October 2024 together with a book of documentation. I have additionally heard from witnesses for the Respondent. The Respondent’s witnesses were cross-examined by the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties at the hearing.

Preliminary Issue

By way of preliminary issue the Respondent’s Representative submitted that the 1997 Act does not apply to the Complainant in circumstances where the Complainant had complete control over his working hours. The Respondent relied on section 3(2)(c) of the 1997 Act and on the cases of A Manager v. A Night Club ADJ-00021252 and IBM Ireland v. Michelle Svoboda DWT0818.

In evidence the Respondent’s Managing Director stated that the Complainant, as Head Chef and department head, had a responsibility in so far as the rostering of staff in the kitchen was concerned to ensure compliance with the 1997 Act, but that it was the General Manager’s responsibility to monitor the Complainant’s working time and that on a weekly basis the General Manager would have seen what hours were and were not actually being worked by the Complainant.

Under cross-examination the Managing Director again stated that it was the General Manager’s responsibility to monitor the Complainant’s working time.

By way of re-examination the Respondent’s Representative asked the Managing Director what she meant by monitor and she responded by stating that the General Manager had access to rosters, including the Complainant’s roster, that he would sign off on all rostering for each department including the kitchen and that the hours each week for all employees including the Complainant would be sent to him and he would approve or disapprove the hours.  When asked what the purpose was for the General Manager getting the hours worked at the end of the week she stated that the purpose was to approve overtime and to see whether the hours set out on the roster were the actual hours worked. The Managing Director stated that the Complainant would not have been approved for overtime.  In response to a further question regarding monitoring of hours she stated that the General Manager’s role was to monitor the Complainant’s hours and that he would have seen what hours were and were not being worked.

The Complainant gave evidence that while he was responsible for the rostering of all staff in the kitchen including himself the needs of the business dictated the hours he worked more than himself. When it was put to the Complainant that his contract provided for a 39 hour working week he denied that he could simply leave the hotel after eight hours if there was a large number of guests and five functions ongoing as his department would have not achieved its objectives for that day and it would not have been viable for his team or the Respondent.

Section 3(2)(c) of the 1997 Act provides as follows:

3.Non-application of Act or provisions thereof

(2)

Subject to subsection (4), Part II shall not apply to—

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

Section 3(2)(c) of the 1997 Act was considered by the Labour Court in M & J Gleeson & Company v. Robert Maloney DWT 1395 wherein the Court determined that “[b]ased on the evidence provided the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders which was the main function of the business” and therefore the complainant’s employment was not the type envisaged by section 3(2)(c) of the 1997 Act.

Further, in Erac Ireland Limited v. Eddie Murphy DWT 1583 the Labour Court found that the complainant was employed to work hours as determined by the business needs of the respondent and consequently was not a person in control of his own working hours.

Taking into consideration the provisions of section 3(2)(c) and case law referred to above and the evidence of the parties I do not find that the evidence proffered by Respondent in support of the argument that the Complainant had full control over his hours and that he could have worked less than 39 hours per week to be credible. I do not accept that the Complainant was a person the duration of whose working time was determined by himself and find that the business needs of the Respondent determined the hours worked by him. I therefore find that Part II of the 1997 Act applies to the Complainant’s employment with the Respondent.

Substantive Issues

Cognisable Period

Whilst the Complainant stated in correspondence to the WRC that he was seeking an extension of the time period for the referral of his complaints he confirmed at the outside of the hearing that he was no longer pursuing that application.

The within complaints were referred to the Director General of the WRC on the 1st December 2023. Having regard to the time limits for the referral of a complaint of a contravention of sections 11, 13 and 15 of the 1997 Act, as set out in section 41 of the Workplace Relations Act 2015, the cognisable period in respect of the within complaints is the period from the 2nd June 2023 to the 1st December 2023 bearing in mind that it was confirmed at the outset of the hearing that the Complainant’s employment ended on the 12th November 2023.

CA-00060338-001 – Daily Rest Period and CA-00060338-003 – Weekly Rest Period

The Law

Section 11 of the 1997 provides as follows:

Daily rest period

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Section 13 of the 1997 Act provides as follows:

Weekly rest period

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

The right to rest breaks is derived from an EU Directive, Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (the “Working Time Directive”).

In the Labour Court case of Sandra Cooneys Home Care Ltd v. Deirdre Morgan DWT1914, the Court noted that the appellant did not receive rest periods in accordance with the 1997 Act and noted that “… employers are obligated to ensure that the prescribed periods of rest are actually taken”.

In HSE National Ambulance Service v. O'Connor DWT 84/2014, the Labour Court said that the entitlement to a rest period was “a fundamental right in EU law and any departure from it must be justified in the context of the individual breach”.

As per the Court of Justice of the European Union (“CJEU”) in Case C-477/21 IH v. MAV-START ECLI:EU:C:2023:140 at paras 37-39 the right to daily rest periods and weekly rest periods are autonomous rights which pursue different objectives and “[c]onsequently, workers must be guaranteed the actual enjoyment of each of those rights.”

Award

Section 27(3) of the 1997 Act provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded.

As referred to above the right to rest breaks is a right derived from an EU Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the CJEU made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions (the “Von Colson Principles”).

Findings and Conclusions:

The Complainant gave credible evidence that on a number of occasions within the cognisable period he was not afforded his daily and/or weekly rest periods.

Employers are obliged by the Directive to ensure that the prescribed periods of rest are actually taken. I did not have the benefit of hearing from the General Manager whose responsibility it was to monitor the Complainant’s working time and I am not satisfied that the documentation produced by the Respondent establishes compliance with the 1997 Act.

Taking into consideration the evidence of the parties and the documentation submitted to the WRC I am satisfied that on a number of occasions it was not possible for the Complainant to avail of breaks and that the details of those occasion were apparent to the Respondent given that it was the Managing Director’s evidence that the General Manager monitored the Complainant’s working time on a weekly basis.  

I am satisfied that the minimum daily rest period prescribed by section 11 of the 1997 Act and the minimum weekly rest period prescribed by section 13 of the 1997 Act were disregarded and therefore I find the complaints are well-founded.

I note that the right to rest breaks is derived from the Working Time Directive and the Von Colson Principles apply. Pursuant to section 27(3) of the 1997 Act I order the Respondent to pay the Complainant compensation in the amount of €5,833.33 (one months’ pay) for the breach of section 11 of the 1997 Act and €5,833.33 (one months’ pay) for the breach of section 13 of the 1997 Act.  These awards are just and equitable having regard to all the circumstances.

CA-00060338-002 – Weekly Working Hours

The Law

Section 15 of the 1997 Act provides:

Weekly working hours.

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act

The Labour Court in the case of IBM Ireland v. Michelle Svoboda DWT0818stated in relation to the above cited section that:

“It is noteworthy that the section provides that an employer shall not ‘permit’ an employee to work in excess of 48 hours per week.  The obligation created by the Act is, therefore, directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours.  It further appears from the language of the Section that it imposes a form of strict liability (it does not provide that an employer may not knowingly permit). This construction of the Section is consistent with the object pursued by Directive 93/104/EC, which the Act transposed into Irish law.  That objective, as stated in Article 1 of the Directive, is to lay down minimum safety and health requirements for the protection of those at work.”

It was also noted by the Labour Court in Kepak Convenience Foods Unlimited Company v. Grainne O’Hara DWT1820:

The operative words in section 15(1) of the Act are that the employer shall not “permit” an employer to work in excess of 48 hours in the relevant statutory time period.”

Therefore, there is a strict onus on an employer to ensure that the provisions of section 15 of the 1997 Act are complied with.

Award:

Section 27(3) of the 1997 Act provides that compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration, may be awarded. The maximum number of weekly hours is derived from the Working Time Directive and the Von Colson Principles apply.

Findings and Conclusions:

It is common case that the Complainant’s contractual working week was 39 hours. The Complainant’s evidence was that he not only routinely and frequently worked in excess of 39 hours per week but also the 48 hours as set out in section 15 of the 1997 Act, usually by a significant period.

I did not have the benefit of hearing from the General Manager whose responsibility it was to monitor the Complainant’s working time and I am not satisfied that the documentation produced by the Respondent establishes compliance with the 1997 Act.

I found the Complainant to be a credible witness and I am satisfied on the basis of the evidence presented at the hearing before the WRC that a working week of on average of in excess of 48 hours per week was a reality for the Complainant and this was in breach of section 15 of the 1997 Act.

In determining the appropriate redress I am guided by the decision of the Labour Court case of Ana Lacramioara Manciu v. Stablefield Limited DWT1924 wherein the Court stated that:

“…having determined that the Respondent was in contravention of the Act the Court is obliged to take account of the loss incurred by the Complainant… The Court is not satisfied that recompense by a simple formulaic application of an hourly rate to the difference between the maximum of 48 hours per week permitted by the Act and the actual hours worked is appropriate, as the Act provides that such hours should not be worked in the first place.

The Court determines that payment of compensation to the Complainant for what the Court is satisfied was a conscious breach of the Complainant’s rights under s. 15 of the Act is the most appropriate means of dealing with this matter. The Act, see above, requires the Court to have regard to what level of compensation is just and equitable, subject to a limit of two years’ pay. The ECJ, as it then was, set out in Von Colson v Kamann (1984) ECR 1891, that sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive, they must reflect the gravity of the breaches and should act as disincentives against future infractions.

This Court noted in Edward James Feeney v Milagros Baquiran (2004) 15 E.L.R 304 that the provisions of this Act and the Directive on which it is based are health and safety imperatives. Therefore, breaches of employees’ rights have potentially far-reaching consequences.”

I note that the maximum number of weekly hours is derived from the Working Time Directive and the Von Colson Principles apply. Having regarded to the foregoing and pursuant to section 27(3) of the 1997 Act, I order the Respondent to pay the Complainant compensation in the amount of €23,333.33 (four months’ pay) for the breach of section 15 of the 1997 Act. This award is just and equitable having regard to all the circumstances.

CA-00060338-001 – Weekly Rest Period

For the reasons set out above, I find the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €5,833.33 for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.

CA-00060338-001 – Weekly Working Hours

For the reasons set out above, I find the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €23,333.33 for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.

A-00060338-003 – Daily Rest Period

For the reasons set out above, I find the complaint is well founded. I order the Respondent to pay the Complainant compensation in the amount of €5,833.33 for the breach of the Complainant’s statutory rights. This award is just and equitable having regard to all the circumstances.

The total award of compensation is €34,999,99.