The complainant made a complaint about having been given inadequate breaks at work only after his employment had been terminated. He was awarded €750 for these breaches by a Rights Commissioner but appealed against the size of the quantum. The respondent accepted the findings of the Rights Commissioner. Neither side appealed against the Decision of the Rights Commissioner in respect of the substantive breach of Section 12 of the Act.

In his appeal the Complainant argued that Statutory Instrument 57/1998 Organisation of Working Time (Breaks at Work for Shop Employees) Regulations 1998, applied in this case and that the Rights Commissioner failed to take this into account when deciding the matter (breaks of one hour are required under this legislation). The Respondent argued that the Respondent’s business is not a shop for the purposes of the Statutory Instrument (S.I.) and that it has no application in this case.

Regardless of whether the business is a shop or not, the Labour Court formed the view that the Directive (as provided for in Ireland by the OWT Act) provides for levels of breaks at work consistent with the protection of the health and safety of Workers at work. The provisions of S.I. 57/1998 amounts to additional provisions that apply in one sector of the economy and that are not related to health and safety at work or to the protection of Workers.

Accordingly, the Court took the view that an infringement of Section 12 of the Act that offends against the right of Workers to safe and healthy working conditions has a higher order of importance that an infringement against a provision that does not compromise safety and health in such a manner.

Neither party had appealed against the substantive findings of the Rights Commissioner on the more important issue of breaches which endangered the safety of a worker. The Court concluded:

"The Court might take another view of the matter were the Complainant still employed by the Respondent as it would be necessary in that case to ensure that no ongoing infringement of the Act was taking place and to instruct the Respondent accordingly. However, that does not arise in this case... The infringement of Section 12 of the Act is the more serious breach as it compromises the safety and health of the Worker affected. Accordingly, the Court finds that the Decision of the Rights Commissioner was correct in this case and is upheld."
http://www.workplacerelations.ie/en/Cases/2013/December/DWT13150.html