Worker

Employer

Anonymised Parties

Bar Worker

Hotel Owner

Representatives

Aoife Moloney

Ibec

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00067619-001

24/11/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021)  the hearing was conducted in recognition of the fact that all formal hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

It is noted that the Complainant initiated the within matter by way of workplace relations complaint form dated the 24th of November 2024. It is further noted that the Complainant framed his complaint as an hours of work issue to be dealt under Section 45A of the Industrial Relations Act of 1946. This section allows for redress measures where an Employer has contravened a recognised Employment Regulation Order (ERO). The Section reads as follows:-

45A.— A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.]

There are currently 3 EROs in operation, including for the:

• Contract cleaning sector (effective since 1 June 2024)
• Security sector (effective since 1 July 2024)
• Early learning and childcare sector (effective since 24 June 2024)

None of these three ERO’s relate to the type of work being performed by the Complainant under his Contract of Employment with the Respondent Employer. The Complainant has mistakenly suggested in his complaint form that he works in the Security Sector, when it is clear he does not. The Complainant acknowledges this fact.

In the circumstances, the Complainant has withdrawn the complaint brought in the workplace relations complaint form and all parties have agreed to move forward under the Industrial Relations umbrella. This allows me to consider the Complainant’s employment from start to finish but also requires the Complainant to have raised this issue through the normal workplace procedures.

As part of the WRC process, and in the interests of fairness, I am always inclined to reserve my right to amend the Workplace Complaint Form so as to include an alternative complaint or  dispute  which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by the Complainant. This seems fair in circumstances where a Complainant is not represented.

I am grateful to the Respondent for allowing this matter proceed as an Industrial Relations dispute..

The Complainant was not represented and made his own case. I gave the Complainant an opportunity to give an oral account of the dispute he has with his Employer. I was provided with some documentation relevant to the dispute raised. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form. This reads as follows:-

Since I have started, I do not get breaks I work 8 hours a day and on busy days 10 hours with no break provided. I have made serval complaints and nothing has been done. Now I'm being told I need to take it as time in leu. However, this is also impossible as I open and close the property

The Complainant alleges that in the course of his employment (commencing in 2021) he was not being given appropriate breaks and rests in the working day.

Where it also became necessary, I explained how the Adjudication/IR process operated with particular emphasis on the obligation on the Complainant to make his case in the first instance.

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 was represented by the business representative group known as IBEC. The Respondent provided me with a written submission dated the 25th of March 2025. I have additionally heard from a number of witnesses for the Respondent.  No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that there has been any systematic failure to provide the Complainant with Statutory breaks and rests.

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 Complainant did not bring a complaint under the Organisation of Working Time Act 1997 (as this would have limited him to a six-month period preceding any complaint brought) and instead seeks the protections which are enunciated in that OWT Act before the WRC through the Industrial Relations process. It is worth stating that the issue which is sought to be protected by the Complainant is set out in the OWT Act at Section 12 as follows :-

Rests and intervals at work.

12.—(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 Complainant gave evidence that from the commencement of his employment in the October of 2021 to February of 2023 he was obliged to work through each daily shift without ever taking a break.

The Complainant indicated that he had been initially engaged by this Employer to run a Bar which was in the process of being constructed. This meant that when he actually started with this Employer, he was manning the reception desk waiting for the Bar to be built. As it happens this was  a time when the HSE was using the facility/building as a vaccination centre. The Complainant was working a 39-hour week which broke down into five eight-hour shifts. The Complainant says that he was trapped for 8 hours a day at the desk with no relief and no break. He says he communicated this fact to his Line Manager who told the Complainant to take his breaks. The Line Manager in question says no such issue was ever raised with him and that in fact the Complainant was generally only working up to four or five hours a day at that time as there was no requirement for him to be on the premises any more than that. He said that the HSE had its own staff and Security to manage everything. The Manager suggested that the Complainant was being paid his full salary though only working part time hours. This was to ensure that the Complainant was available at the end of the Covid period. He stated that it was gesture of good will.

It is difficult to reconcile the two differing accounts of what was happening three and four years ago. I am persuaded however that the Contract of Employment dated the 7th of October 2021 does cover the issue of breaks quite well at para 5.6. The section reads:-

“The Employer’s operation of a flexible working week affords the Employee liberty to largely designate his or her own break periods. The Employee should bear in mind that under the Organisation of Working Time Act, 1997, the Employee is entitled to receive a fifteen-minute break before four hours and a half house of work have elapsed, and a thirty-minute break before six hours of work have elapsed, which may be inclusive of the aforementioned fifteen-minute break. If, on a given day, the Employee does not receive the statutory minimum break period(s), he or she should notify his or her manager in writing within seven days and an alternative break period will be assigned to the Employee”.

It is therefore quite clear to me that the Employer herein accepted and recognised its obligations under the Law. The Employer further acknowledges that breaks might get missed for operational reasons but that these should be made up if notified to the Employer. The notification has to be in writing. It seems to me that if the Complainant was regularly missing breaks, he should have put this fact to his Employer in writing. This is something he does not seem to have done. Instead, he relied on oral communication which are not recalled by the said Manager in charge.

Subsequently in February of 2023 the Complainant’s shift pattern changed to being behind the newly opened bar for five shifts a week Wednesday through Sunday. As directed by his Employer, the Complainant was rostering himself for his 39-hour week. The expectation was that he would be expected to judge when the Bar would be busy and make sure he covered those periods. The Complainant again says that sometimes these were long shifts with little to no cover from anybody else. As I understand it, a third-party catering company was also working on the premises alongside the Complainant. The Complainant was to agree with the Third Party what cover he might require in a given week of shifts. This appeared to work successfully though the Complainant stated that sometimes the extra staff did not turn up leaving him to handle the bar on his own. When asked, the Complainant gave direct evidence that in the ten-month period since May of 2024 to the end of March of 2025 this has happened up to four times.

The Complainant’s Manager in his evidence said that whilst the Complainant is independent of the Third Party and is engaged directly by the Respondent, the Complainant is encouraged to liaise with the Third Party to secure any extra staff as might be required for nights that are anticipated will be busy. The Manager denies that there were ongoing complaints regarding the 15- and 30-minute break entitlements. He says he only became aware of any issue just in advance of the Workplace Relations Complaint Form issuing in November of 2024.  By then the Complainant had had a new Line Manage for the best part of a year.

I heard briefly from a member of the HR Team. As this witness was a fairly new recruit, she had no real knowledge of any historical issues and only became aware that the Complainant was concerned that he was not getting his break entitlements in and around November of 2024. This witness explained that the Respondent is very conscious of the need to ensure staff get their breaks as provided for under Statute. Where a break is unexpectedly or unavoidably missed, HR will (on notification) intervene to ensure that the Employee will get the break as soon as may be practicable. The witness confirmed that this is normal practise and that there is no difficulty with the implementation. The preference is always to give the employee an equivalent rest period and not to compensate for missed breaks.

The Respondent submission points out:

The Complainant holds a supervisory position,which includes the responsibility of creating staff rosters to ensure adequate coverage and therefore the Respondent would argue he is aware of the correct notifying procedure of a failure of a break as a senior member of staff. The Complainant’s role includes periods of downtime, providing ample opportunity to take breaks as needed. As such, the Complainant had reasonable opportunities to take breaks throughout the course of their day. The Complainant had the autonomy to set his own breaks.

I accept that the Respondent must be allowed to rely on the Complainants senior position as a Bar Manager and that the Employer should not be expected to micro-manage the Complainant’s entitlements under the Organisation of Time Act.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.