ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00053109

Parties:

	Complainant	Respondent
Parties	María Beatriz Sanz Martínez	Eyre Street S B H Limited Eyre Square Townhouse

Representatives

Self Represented

Hugh Hegarty BL instructed by Peninsula Business Services Ireland

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00064965-001	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00064965-002	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00064965-003	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00064965-005	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00064965-006	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00064965-007	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00064965-008	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00064965-009	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064965-010	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064965-011	24/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064965-012	24/07/2024

Date of Adjudication Hearing: 11/06/2025

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

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 for a period of 3 years until she resigned in November 2024 and submitted 11 complaints under a variety of Acts after her employment ended. The Complainant went on sick leave in July 2024 and did not return to work. She was employed initially as a Barista in 2021 and then became a Receptionist in May 2023 and she alleged she was an Accommodation Manager.

Summary of Complainant’s Case:

The Complainant submitted the following complaints;

Specific Complaint CA-00064965-001

The Complainant alleged she did not receive the minimum wage.

Specific Complaint CA-00064965-002

The Complainant alleged she worked three Sundays in the past 6 months, one Sunday was a 24 hour shift (31st March 2024) and she received no premium compensation for any of these

Specific Complaint CA-00064965-003

The Complainant alleged she was routinely paid less than the amount due to her. For instance I worked 64 hours, 24 of those hours were night shift and I got paid €467.38 (net).. Under the Payment of Wages Acts, my employer failed to pay me for the night hours. While my employer may allege that the Complainant was "on call" she alleged that once you are at your employer's place of work and not in your own home, these hours are considered work for which you should be dully remunerated. She was seeking the last six months pay for all night hours at a premium for unsocial hours.

Specific Complaint CA-00064965-005

The Complainant was on sick leave, the last pay she received into her account from my employer was €336.57 (net), (19.07.2024, week 29 SSP SP, as stated on the bank statement).

Specific Complaint CA-00064965-006

The Complainant alleged she did not get a daily rest period of 11 hours when she often worked 4pm - 4pm (24hr shift. The rota says CLOSE but the Complainant was present on the premises. The Complainant alleged she was not given the opportunity to take a 15 minute break after 4 hours and 30 minutes or a 30 minutes break after 6 hours (which could have included the earlier break).

Specific Complaint CA-00064965-007

The Complainant alleged she did not get scheduled breaks, Foie example she worked 36 consecutive hours 31.03.2024 to 01.04.2044. When she asked her employer about breaks she said she was free to go whenever she wanted but because she was the only person on the premises this was virtually impossible as she was responsible for the safety of the guests and the premises. There are facilities there to make tea, coffee etc. The Complainant stated she would of course go out, for example, she would order her lunch and go out to pick it up this would be approximately 10 minutes until her return where she would eat her lunch at the reception desk.

Specific Complaint CA-00064965-008

As per the Organisation of Working Time Act Section 15 confirms that you cannot work over 48 hours, average, per week in a four month period, to date in 2024 she stated she has worked 1428 hours, average to date is 54.9 hours.

Specific Complaint CA-00064965-009

The Complainant frequently worked 24 hours to include night hours, please see rota includes 24hr shifts every week for example, the week of 10th June 2024.

Specific Complaint CA-00064965-010

The Complainant did not receive a statement in writing with the terms & conditions of her employment. She was given 2 sheets of paper one outlining the reception tasks and the other one has general duties.

Specific Complaint CA-00064965-011

The Complainant was never notified of any changes in the terms and conditions of her employment. She was informally made aware of some changes for example, her employer approached her about working the same hours but over four days. This was communicated to her verbally she never received this in writing.

Specific Complaint CA-00064965-012

The Complainant was not given an up-to-date Contract of Employment that correctly identifies her working as a Receptionist in the Eyre Square Townhouse with the change of her pay and conditions, under the Terms of Employment Information Act, 1994 as amended.

Summary of Respondent’s Case:

The Complainant has made multiple claims under National Minimum Wage Act, 2000, Organisation of Working Time Act, 2000, Payment of Wages Act, 1991, Sick Leave Act, 2022 and the Terms of Employment (Information) Act, 1994. It is the respondent's position that the claims are not well founded. The relationship between the Complainant and the Respondent was professional, amicable, and based on a mutual understanding. The arrangement regarding the nature and hours of work was beneficial to both parties. The Complainant required both income and ample time to study, while the Respondent needed a presence on the premises. Given the small scale of the business, the role did not involve extensive duties. The respondent maintains the Complainant agreed, was consulted and negotiated all the aspects of the role.

The Respondent has operated under the names Revive Café since 2000 and Eyre Square Townhouse B & B since 2017. It is a small business, and the accommodation provider situated in Galway City Cenfre.

The Complainant commenced employment with the Respondent in October 2021, initially as a Junior Chef, and subsequently as a Barista and Waitress in Revive Café. Terms and conditions of employment were provided at that time. However, in or around May 2023, due to financial pressures, the Respondent made the decision to close the Café and initiated a redundancy process in consultation with the employees. As part of this process, the Complainant was offered an alternative position at the Eyre Square Townhouse as a Receptionist. The change in position, including duties,pay, hours, and expectations, was fully discussed with the Complainant as part of the offer of continued employment and the transition from the Café to the Townhouse.

At that time, specifically around the message dated 20/04/2024, discussions were ongoing regarding the nature of the position and the associated remuneration. Ms. Beatrice was on holiday with her family in Spain during this period, and much of the communication occurred via WhatsApp messages. The role was described as having a rate per shift, which included a reduced rate for hours worked after 8:00 p.m., and later 9:00 p.m., when check-in times were extended. Her payslips for holidays in August, after the initial training period, confirm to her that she was paid at the rate of €13.25 per hour.

At the time, the Complainant discussed and agreed with the respondent that the duties of the townhouse reception operated on a shift-based system, consisting of two shifts: 8:00 a.m. to 4:00 p.m., and 4:00 p.m. to close. The Complainant was informed that, for the 4:00 p.m. to close shift, once check-in duties were completed, she was not required to remain on the premises. However, she was expected to take the phone and be effectively on call during the remainder of the shift. Due to the small scale of the business, the phone was generally inactive during these hours. If a call was received regarding a booking inquiry, staff were instructed to ask the caller to phone back between 9:00 a.m. and 5:p.m.

It is vital to note that the respondent operates a small business. The bed and breakfast in question is a modest establishment with only 15 bedrooms. Due to the limited scale of operations, there is insufficient business activity to warrant the employment of a full-time receptionist or night porter. To address this, the respondent implemented a practical system whereby guests arriving after 8:00 p.m. were sent a text message containing the front door code along with self-check-in instructions.

It was discussed and agreed with the Complainant at the commencement of her employment that reception duties outside of the core check-in period — generally between 3 p.m. and 8:00 p.m. were typically quiet. During the period after 8:00 p.m., the Complainant was advised that she was free to engage in personal activities, provided that she remained contactable and retained possession of the work phone to address any in-house guest-related issues that might arise.

This arrangement was deliberately structured to permit the employee on the 4:00 p.m. to close shift to leave the premises and pursue personal activities, with the understanding that any required intervention would be minimal.

However, despite this, the Complainant consistently chose to remain on premises at the reception desk and when questioned about this she stated to the respondent that she liked the peace and quite and the reception desk was a suitable place to study.

Accordingly, although not required to remain on site, the Complainant frequently opted to do so voluntarily, utilising the quiet time to focus on her studies.

Furthermore, the established practice at the townhouse was that guests requesting a late check-in were provided in advance with a secure door code and comprehensive written instructions enabling them to access their room independently. While Ms. Beatrice, due to her preference for remaining at the reception desk to study, often chose to check in guests personally, all other staff members consistently implemented the self-check-in system as standard practice to access the room.

The Complainant approached the respondent in or around the end of June 2024. The nature of the conversation was that the Complainant was looking for a pay rise. The discussion between the parties was that while a pay rise was not possible, it could be arranged that the Complainant could work 4 days a week without a reduction in pay

The Complainant stated she was having financial difficulties and indicated that she would look for another employment and sought help from the respondent in relation to letters and references. It was part of the discussion with the Complainant that it was difficult to seek another position as it was extremely difficult to find another position that would be as flexible and allow her to prioritise her studies while working.

The respondent stated that the nature of the relationship was amicable and friendly, and that the Complainant all through her employment was amenable to the work and the hours and was very capable of raising issues and did on a few occasions and those issues were resolved.

The Complainant sent in a sick cert on or around the start of July 2024, and did not return to work,

The Complainant made complaints to the WRC on or about the 24th July 2024.

The Complainant resigned on 30th November 2024

LEGAL POSITION.

Working Time

It is the position of the Respondent that the bulk of the claims taken by the Complainant relate to and will come down to the determination of the Adjudication officer as to whether or not the time spent by the Complainant on the site of the respondent sleeping constitute 'Working Time' withing the meaning of both the Organisation of Working Time Act, 1997 (OWTA) and Directive 2003/88/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning certain aspects of the organisation of working time ("the Directive"

It is the respondents position that the hours spent on site and sleeping do not constitute "working time" and 'rest period' with the meaning of OWTA and the directive.

The Directive203/88 sets out the definition of working time in Article 2(1) and 2(2):

For the purposes of this Directive, the following definitions shall apply:

1. 'working time ' means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

2. 'rest period' means any period which is not working time;

The OWTA set out the definitions of the same as follows:

"rest period" means any time that is not working time;

"working time" means any time that the employee is—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work, and "work" shall be construed accordingly.

It is the position of the respondent that the requirement under the OWTA the employee is either at the place of work or the employers disposal and performing the activities or duties of his or her work. It is the respondents submission that the Complainant while sleeping was not performing the activities or duties of their work. This is a view that has been endorsed by the Court of Justice of the European Union (formally the ECJ) in Case C-580/19 1 , where at paragraphs 29-31 state:

In the second place, it should be noted that Article 2(1) of Directive 2003/88 defines the concept of 'working time ' as any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice. Under Article 2(2) of that directive, the term 'rest period' means any period which is not working time.

It follows that the two concepts, which were defined in the same way in Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) which was succeeded by Directive 2003/88, are mutually exclusive. A worker 's time on stand-by periods must therefore be classified as either 'working time' or a 'rest period 'for the purpose of applying Directive 2003/88, since the directive does not provide for any intermediate category Judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C-344/19, paragraph 29 and the caselaw cited).

And further at paragraph’s 38 - 39 ECJ set out the relevant test to be applied in determining whether standby time constitutes working time

It follows from the elements set out in paragraphs 34 to 37 of this judgment and also from the need, recalled in paragraph 28 of this judgment, to interpret Article 2(1) of Directive 2003/88 in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union, that the concept of ' working time ' within the meaning of Directive 2003/88 covers the entirety of periods of standby time, including those according to a stand-by system, during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests.

Conversely, where the constraints imposed on a worker during a specific period ofstand-by time do not reach such a level of intensity and allow him or her to manage his or her own time, and to pursue his or her own interests without major constraints, only the time linked to the provision ofwork actually carried out during that period constitutes 'working time 'for the purposes of applying Directive 2003/88 (judgment of today, Radiotelevizija Slovenija (Period of stand-by time in a remote location), C-344/19, paragraph 38 and the case-law cited).

It is clear the Decisions of the ECJ in C580/19 and C-344/19 that in order to determine whether a period of stand by time is working time, or a rest period, only the constraints imposed on the worker, should be taken into consideration. It is the position ofthe respondent that the Complainant was free during the period of after the required "check in" to whatever time they choose to retire for the night and through the night was their time, to do with as they wished,

Further the ECJ in C-344/19 states that

I C-580/19, REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgericht Darmstadt (Administrative Court of Darmstadt, Germany),

Furthermore, the Court underlines that it is for the national courts to carry out an overall assessment of all the facts of the case in order to determine whether a period of stand-by time according to a stand-by system must be classified as

'working time '

The judgment of the Grand Chamber continues by stating

As regards remuneration of periods of stand-by time which, conversely, cannot be classified as 'working time ', Directive 2003/88 does not preclude payment of a sum intended to compensate workers for the inconvenience caused them.

finally, the ECJ stated.

...the Court observes that the fact that a period of stand-by time which cannot be classified as 'working time ' must be regarded as a 'rest period

It is the position of the respondent that when the test is applied and the facts assessed, it must be determined by the Adjudicator that the constraints imposed on the worker were both infrequent and mild. The Complainant was free to engage in whatever activity they chose after 8:00 pm

CA-00064965-001

National Minimum Wage Act, 2000.

The Complainant is alleging that they were paid less that the national minimum rate of pay. Specifically, the Complainant is alleging that when she began working in 2021, they were paid €11.00 per hour; then makes reference to the week 27 payslip.

The National Minimum Wage Act, 2000 at section 14 states:

Subject to sections 15, 1 7, 18 and 41, an employee shall be remunerated by his or her employer in respect of the employee 's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay.]

In response to the first part of the specific complaint the minimum wage in 2021 was €10.20 per hour, the Complainant was paid well above the rate applicable at the time. In 2023 the Complainants rate of pay was increased through consultation and agreement to €13.25 per hour. At all times throughout the Complainants employment the Complainants rate of pay have been well above the national minimum wage.

In relation to the second part of the claim, week 27, it is the respondent's position that the Complainant was paid €530.00, for work completed between the 24th — 30th June 2025. During that period the Complainant worked Two 8:00am — 4:00pm shifts and three 4pm- close shifts. For this the Complainant was paid as follows,

For the 2 8-4 shifts

For the 3 4-8am shifts 2 x 8 hours = 16h x €13.25 - €212.00

(8am-4pm)

3 x 4 hours = 12h x €13.25 - €159.00

(4:00 pm — 8:00 pm)

3 x 12h on call allowance €158.76

Total €529.76

The Respondent submits that the Complainant has been paid well above the minimum Wage in relation to the hours worked. As previously stated, it the position of the respondent that the hours the Complainant was on site but not working do not constitute "working time" within the meaning of the OWTA and the Directive.

The Complainant throughout their employment and specifically at the time of starting in 2021 and for week 27 of 2025 the Complainant was paid at a rate of €13.25 which is we above the national minimum wage.

The Respondent sought a determination from the Adjudicator that the claim is not well founded and the clamant was paid over the national minimum wage.

CA-00064965-002

Organisation of Working Time Act, 1997

The claim is that the Complainant was not compensated for working on as Sunday. The relevant provision of the Organisation of Working Time Act, 1997 is section 14(1) which states:

An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(d) by a combination of Ovo or more of the means referred to in the preceding paragraphs.

It is the position of the respondent that the Complainant was paid a composite rate. The company handbook issued to the Complainant states in the section Sunday Working as follows:

Sunday Working and Hours over 48 per week

The hourly rate of pay/salary is inclusive of any Sunday premium. If your work hours exceed 48 hours in a week, you will be compensated at your regular hourly rate. Any excess hours worked will result in a reduction of hours in the following week, subject to mutual agreement.

The Complainant was paid well in excess of the national minimum wage and part of the increased rate of pay was in compensation for the fact of her having to work on Sundays. It is our position that the Complainant was well paid and compensated for Sunday work in line with section 14(1) of the Organisation of Working Time Act. It should also be noted that the Complainant worked three Sundays during the claim period. Of these, two Sundays were worked at the Complainant's own request in order to accommodate her

study and exam commitments and holiday leave and the third Sunday was worked to provide cover for another staff member who was on annual leave. As had been agreed, the Complainant did not ordinarily work weekends, which was a significant and favourable accommodation given that she was employed in the hospitality sector, where weekend work is typically expected. The two other members of staff worked every weekend.

The Respondent sought a determination from the Adjudicator that the claim is not well founded, and the Complainant was paid a composite rate for working on Sunday.

CA-00064965-003

Payment of Wages Act, 1991

This claim has been taken under the Payment of Wages Act and the claim according to the Workplace Relations Complaint form is on the 5th July 2024 the Complainant was paid less than the amount due to her. Specifically, she claims that she was paid €467.38, the Complainant alleges that she worked over 64 hours

38. The Payment of Wages Act , 1991 at s.5(6)(b) states below:

(6) Where -

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant is claiming that on the 5th July 2024 the amount of €304.08 was unlawfully deducted from the Complainant's wages. In the Complainant's submission to the WRC they make it clear they are referring to pay for night work, and reference this amount as the unlawful deduction from wages.

As previously stated, it is the position of the respondent as set out in paragraphs 18-24 of this submission the Complainant was not working within the definition of the either the OWTA or the Directive.

It is the respondent's position that for the week in question, the Complainant was paid €13.25 per hour for every hour worked and compensated with a hourly allowance for the on-call time.

The respondent contends that no deduction has been made and the claim is not well founded.

CA-00064965-005

Sick Leave Act 2022

This claim relates to an allegation that the Complainant was not paid statutory sick pay, Section 5 of the Act states:

5. (1) Subject to this Act, an employee shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a "statutory sick leave day "), be entitled to statutory sick leave.

(2) An employee shall be entitled to up to and including 3 statutory sick leave days in a year, or such number of statutory sick leave days as may stand specified from time to time by order of the Minister under section 6.

It is the position of the Complainant is that in relation to the sick pay that they did receive sick pay and are referring to the receipt of a payslip. The Complainant admits that subsequently they have received the payslip. And the Complainant further states the bank statement clearly refers to the payment as SSP or statutory sick pay.

It is the respondents position that the Complainant was paid sick pay in accordance with section 5 of the Act and the claim is not well founded.

CA-00064965-006

Organisation of Working Time Act, 1997

The Complainant is alleging that they did not get their daily rest periods. The Complainant is specifically referencing a 4pm — close and the 8am - 4pm shift.

The OWTA at section 11 is as follows:

ll.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of24 hours during which he or she works for his or her employer.

It is the respondent's submission that this claim relates directly to the previous submission as set out above that the time spent by the Complainant after 8pm and before 8am, are on call hours and do not constitute working time within the meaning of the OWTA and the Directive.

The hours spent by the Complainant between 8pm and gam with a very few exceptions, the complaint was not carrying out or performing the duties of their work. Their time as the ECJ declared not working time and therefore must be considered to be a rest period.

The Complainant frequently made scheduling requests to extend her weekends. Specifically, she would ask to work the Friday morning shift, finishing at 4 p.m., and then begin her Monday shift in the evening at 4 p.m. These preferences were taken into account and often influenced the scheduling of her shifts for the remainder of the week.

Additionally, the Complainant expressed a preference for working back-to-back shifts—for example, working an evening shift followed by a day shift—so that she could then benefit from a 24-hour break before her next scheduled shift. These requests were communicated both verbally, as the parties spoke daily, and via wHtten messages.

CA-00064965-007

Organisation of Working Time Act, 1997

The Complainant is alleging that they did not get breaks and specifically in their submission states they are refencing to scheduled breaks. By the Complainant's own admission in their submission they were instructed by the respondent to take breaks whenever they want.

12.—(1) An employer shall not require an employee to work for 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).

Section 12 (1) is clear in the wording and the language used that an employer shall not require an employee to work . . .. it is the submission of the respondent that the Complainant was not required to work. The Complainant submission makes it clear that the Complainant was completely allowed to take breaks.

Additionally, it is the submission of the respondent that the Complainant did regularly and take breaks. As was outlined in background the reception area of the B & B was predominantly quiet, outside of the usual check-in times. During the quiet time the Complainant was free to take breaks such was the easy going and matriarchal nature of the business.

CA-00064965-008

Organisation of Working Time Act, 1997

The Complainant is alleging they worked more than the permitted number of hours within the 7-day period. Specifically, the Complainant is alleging they worked an average of 54.9 hours within the four-week period.

Section 15 of the OWTA states:

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,

(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.

The respondent submits that this claim relates to the above submissions as they pertain to what constitutes working time. The Respondent submits that the within the definition as set out in the Directive and the Act, the hours the Complainant spent on call and sleeping do not constitute working time within the definition. The Complainant while needing to be available and close by was only required to bring the phone. The time was the Complainants to do with as they saw fit, as the ECJ set out in t eh above cases the determination on working time is binary, that is to say it is working time and if it is not working time, it is a rest period.

The position of the respondent is the requirement to satisfy the test in relation to determination of working time is not met by the Complainant as they were free to pursue their own interests.

CA-00064965-009

Organisation of Working Time Act, 1997

This claim refers to working excessive night hours. The Complainant is alleging

16.—(1) In this section

"night time" means the period between midnight and 7 a.m. on the following day;

"night work" means work carried out during night time;

"night worker " means an employee—

(a) who normally works at least 3 hours of This or her daily working time during night time,

and

(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. OF the total number of hours worked by him or her during that year.

(2) Without prejudice to section 15 , an employer shall not permit a night worker, in each period of24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a

"reference period ") that does not exceed

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

CA-00064965-010

Terms of Employment (Information) Act, 1994

The Complainant is claiming they have not received a written statement of terms and conditions of employment, as required by the Terms of Employment (Information) Act, 1994. The Complainant states on the Workplace relations Complaint form that they began working on the I st May 2023; However, it is the position of the respondent that the Complainant's employment began on the 2nd October 2021.

In May 2023 the Café portion of the Business was closing down, and staff of the Café were going a redundancy process. As part of the Redundancy process the Complainant was offered an alternative position in reception of the Townhouse and as such her employment continued from the original start date of the 02 October 2021

Under section 3 of the legislation (at the time) it was a requirement to provide terms and conditions of employment within two months of commencing employment.

3.— (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, that is to say—

* The amendment to the Terms of Employment (Information) Act 1994 reducing the period of time to one month came into effect in December 2022.

It is the respondent's submission that the Complainant did receive terms and conditions of employment in accordance with the Terms of Employment (Information) Act. The Complainant began their employment on or about the 2nd October 2021 as a Junior Chef. Terms and Conditions were issued and signed by the Complainant on the 2nd October 2021.

The respondent sought a determination from the Adjudicator that the claim is not well founded, and the Complainant was issued terms and conditions of employment in compliance with the Act and no Breach has occurred.

CA-00064965-011

Terms of Employment (Information) Act, 1994

The Complainant is alleged that they were not made aware of changes to their terms and conditions of employment. in the Complaint specific section of the complaint the Complainant states that firstly they did not have terms and conditions of employment, and they were informed informally

Section 5 of the Ten-ns of Employment (Information) Act, 1995 states as follows: Notification of changes.

5.—(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

F22[(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 I 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 F23[, 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 is the Respondent's position that the particulars of the employment contract did not change. The initial terms and conditions stated clearly that the Complainant was required to be flexible in the approach to duties and hours of work, which, along with pay, are the only terms and conditions that changed, and were done in consultation and agreement with the Complainant in order to avoid a redundancy.

Additionally, it is the respondent's position that any changes that have occurred would have occurred during the redundancy process of 2023, section 41 (6) of the Workplace Relations Act which stated that:

an Adjudication Officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates " and I noted further that section 41 (8) of the Workplace Relations Act further provides that "an Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) ... if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause.

It is the respondent's position that at all times that this claim is outside the statutory time frame permitted to bring a claim. Additionally, the respondent submits they have acted reasonably; they have acted as a responsible employer in relation to providing alternative work during the redundancy process and did so by consulting and agreeing any and all changes with the Complainant and agreed with the Complainant in relation to all the changes made.

CA-00064965-012

Terms of Employment (Information) Act, 1994

It is the Complainant position that they were not supplied with core terms and conditions of employment. as required by section 3(1A) of the Terms of Employment (Information) Act, 1994.

As previously stated, it is the respondent's position that the Complainant's employment started on or about the 2nd October 2021. Additionally, the Complainant was issued with terms of employment signed by them on the second of October, in compliance with the requirement to issue core terms of employment.

Findings and Conclusions:

The Complainant submitted an immense amount of diverse back up details to support her claims. The format and presentation of the information was not cohesive or easy to understand and in most cases there was no way to establish the payment made in a payslip to actual hours worked. Concise presentation of evidence is always preferred to vast amounts of detail and the manner of presenting the information has not assisted the Complainants case.

The Complainant was employed by a written contract in November 2021 which she signed. This included reference to an attached grievance procedure. This contract was for a role of Junior Chef and with the same legal employer. The Complainant took on the role of Receptionist in or around May 2023 due to restructuring and did not receive a new or updated contract. Having considered the evidence of both the Complainant and the Owner of the business the core issue impacting many of the complaints is whether the Complainant was working/employed at all times while she was on the Respondents premises after 8pm in the evening.. Having considered both parties submissions I conclude that the Complainant was not working at all times while on the premises, was free to come and go at times of her choosing or once customers had checked in but she chose to stay on the premises so she had a place to study and sleep. There is no question the Complainant did, on a few occasions, get involved with customers outside of her fixed work hours but this seems to have been a very infrequent occurrence.

At the completion of the hearing, I did take the time to carefully review all the matters presented to me in the course of the hearing. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that have been presented to me and instead tend to concentrate on the issues which have guided me to the final recommendations being made. In this regard, I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

With regard to the specific complaints I find the following;

Complaint CA-00064965-001

The Complainant was paid at least the minimum wage for the hours worked. This complaint is not well founded.

Complaint CA-00064965-002

The Complainant was paid more than the minimum wage but the contract did not stipulate that the extra amount above the minimum wage was for Sunday premium. The Act requires that a premium is paid for Sunday work but does not stipulate a fixed premium. While the Respondents Handbook does state that the rate is inclusive of a Sunday premium this in reality was very little and in general circumstances the minimum premium for Sunday work is 25%, I find there is a breach of the Act. However, as the breach of the Act is negligible in the amount of time involved (3 Sundays at most as only one was specifically identified by the Complainant) I award the Complainant 100 Euros for breach of the Act.

Complaint CA-00064965-003

The Complainant was seeking a premium for unsocial hours at night time. I have found that the hours on the premises at night time were of the Complainants own volition and even if they were not there is no legal requirement to pay a premium for night work. This complaint is not well founded.

Complaint CA-00064965-005

From the evidence presented the Respondent has paid what was due under the Sick Pay Act. This complaint is not well founded.

Complaint CA-00064965-006

The Complainant alleged she did not get a daily rest period of 11 hours when she often worked 4pm - 4pm. On the basis the Complainant has not established a credible case that she was working during these times for all the hours alleged her complaint is not well founded.

Complaint CA-00064965-007

The Complainant alleged she did not get scheduled breaks and that she worked 36 consecutive hours 31.03.2024 to 01.04.2024 without breaks. On the basis the Complainant has not established a credible case that she was working during these times for all the hours alleged her complaint is not well founded.

The Complainant had the right to leave work around 8pm but instead choose to stay on the premises of her own volition and this time cannot be considered that she was working. The Complainant was instructed to take her breaks (within the way the business operated) and at no time was she denied the opportunity to take breaks by the Respondent.

Complaint CA-00064965-008

The Complainants hours of work did not exceed the maximum of 48 hours average per week for four months of the relevant period. On the basis the Complainant has not established a credible case that she was working during these times (i.e. night time) for all the hours alleged her complaint is not well founded.

Complaint CA-00064965-009

On the basis the Complainant has not established a credible case that she was working during these times for all the hours alleged her complaint is not well founded.

Complaint CA-00064965-010

The Complainants employment commenced in November 2021 and she was provided with a contract of employment at the commencement of her employment. While her role changed during the course of employment her employer stated the same. The complaint is not well founded and was brought also outside the statutory time limit of 6 months.

Complaint CA-00064965-011

The Complainant alleged she was never notified of any changes in the terms and conditions of her employment. The main changes to the contract of employment took place in May 2023 when the Complainant changed her role from a Barista to Receptionist. While the changes may have been notified verbally there were not notified in writing. I consider the changes to be ongoing and a constant source of disagreement and dispute and find that they are covered by the cognisable period of six months. As these changes and new work routines are central to many of the disputes between the parties the Respondent has to take considerable responsibility for not updating in writing the new terms to deal with all the changes that occurred in May 2023. The maximum award for breach of the Act is four weeks pay. I find in favour of the Complainant and award her 1800 Euros for breach of the Act. This amount is based on an estimated average weekly wage per the wage slips submitted.

Complaint CA-00064965-012

This complaint is basically the same as the complaint under CA-00064965-011 and I deem it to be repetitive and not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Complaint CA-00064965-001