The complainant in this case was employed by the respondent’s restaurant and bar as a chef between April 2013 and January 2014. As is often common with OWT Act complaints, he alleged that a number of provisions of the legislation had been breached by his employer. In summary, these included:
* Section 11 – The requirement to provided 11 hours daily rest in every 24 hour period
* Section 12 – The requirement to provide minimum rest breaks during working hours
* Section 14 – The obligation to compensate for Sunday work
* Section 17 – The obligation to notify starting and finishing hours of work

His complaints before a Rights Commissioner failed for reasons that are not set out in the appeal finding. The Labour Court examined each heading of complaint and ruled as follows:

* Section 11 – Daily rest

It appears to have been agreed by the parties under this heading that the Act was infringed once and only for a matter of 20 minutes. The complaint normally worked from 12.00 until between 21.00 and 22.30. On one occasion, he started work early at just before 9.00 resulting in the 11 hours rest provision being infringed. The respondent attempted to rely on the exceptional circumstances provision in Section 5 of the Act, namely that because of ‘the occurrence of unusual and unforeseen circumstances beyond the employer’s control, it would not be practicable for the employer to comply with the section concerned.

The Court rejected this argument, finding that the circumstances were not unforeseen and no explanation was provided by the respondent as to why the complainant could not have started 20 minutes later than he did. However, it accepted that the breach was technical and this was reflected in an award of just €100 under this heading.

* Section 12 – Minimum rest breaks

An employer must at a minimum allow an employee a rest break of 15 minutes for every 4 hours 30 minutes worked, rising to 30 minutes for every six hours worked. The legislation does not oblige an employer to pay for such breaks. The complainant argued here that while he received ‘smoke breaks’ he was never allowed to take a break of the length set out in the legislation. The respondent in turn argued that he was not prevented from taking such breaks and that the staff handbook specifically provided for them. It argued that the complainant had not produced any evidence to support his arguments.

In response to this contention, the Court noted, as in many previous decisions, that Section 25 (1) of the Act obliged an employer to keep records of compliance with the legislation. Failure to keep such records shifts the onus of proof of compliance to the employer under the terms of sub-section (4). The respondent employer accepted in this case that such records were not available and so the onus fell upon it to otherwise show compliance. In this regard, it relied upon the terms of the staff manual. However, the Court noted that the manual provided that responsibility for allocating breaks lies with the ‘person in charge in your department’. In this case, the respondent had already told the Court that the person in charge could not confirm that he had discharged that duty in relation to the complainant.

The Court therefore concluded that the staff manual did not assist the respondent and upheld this aspect of the complaint. However, in awarding limiting compensation to €500 under this heading, it took into account that the complainant availed of free meals every day which he must have been given time to consume and this broadly equated with those provided for in the legislation, even if it did not exactly comply with it.

* Section 14 – Compensation for Sunday work

The Labour Court has regularly stated that an employer must be in a position to prove either that the fact of an employee being obliged to work on a Sunday has already identifiably been taken into account in determining his or her rate of pay or that the employee has otherwise been compensated for Sunday work. In response to this aspect of the complaint, the respondent accepted that the complainant had not received any extra payment but had the benefit of free meals on each day that he worked as compensation for Sunday work and that this benefit had a monetary value.

The Court examined the wording of the section and rejected this argument. It stated that the wording made it clear that compensation for Sunday work must involve the payment of an extra sum of money or the granting of additional time off. Substituting a benefit-in-kind such as access to free meals did not satisfy the requirements of the section. An award of €2,000 was made under this heading.

* Section 17 – Notification of hours of work

If a contract or other relevant agreement does not state the normal starting and finishing times of each day of work for an employee, Section 17 requires an employer to give at least 24 hours’ notice of such times. Where an employee is required to work ‘additional hours’ over and above normal hours of work, the employer is similarly obliged to give 24 hours’ notice. In this case, the complainant stated that his starting and finishing times were not set out in his contract but that he was required to work until the restaurant closed and this varied from day to day. The respondent told the Court that the complainant was notified each Sunday at 3 p.m., in person or by phone, of the days which he was required to work the following week, starting at noon each day. It said that his finishing time was not fixed but was invariably sometime between 10.00 and 10.35 each night, the normal closing time of the restaurant.

The Court concluded from this that where the complaint was rostered to work on a Monday, he could not have been given 24 hours’ notice of his start time that day. In addition, the respondent had failed to set a normal finishing time, despite been in a position to be relatively precise as to when that might be. The Court also therefore upheld this aspect of the complaint, finding that the complainant was entitled to know in advance the time at which his shift will end. €900 was awarded under this heading.

In all then, the complainant was awarded a total of €3,500 in compensation. To this must be added the cost of preparing for and attending two hearings for relevant staff and the legal representation that the respondent hired to defend its position. Arguably, all this could have been avoided by a better understanding of the legislation.