WRC DECISION IN RELATION TO WRITTEN STATEMENT OF EMPLOYMENT TERMS, SUNDAY PREMIUM AND REST BREAKS:

This firm recently acted (September 2021) for a commercial client in the successful defence of a number of complaints against them by a former seasonal employee, before the Work Place Relations Commission.

The client operates a ‘Santa’s Grotto’ Experience in various locations throughout Ireland. The Respondent had been employed as a photographer for a busy Christmas season on a contact of limited duration.

The employee who had finished his employment with the client initiated various complaints to the WRC namely:

1. Non receipt of a statement in writing from the client as employer of terms of employment;

2. No Compensation regarding Sunday Hours included in the Claimant’s terms of employment;

3. The non-provision of sufficient breaks during 8 hour shifts.

Two further complaints were lodged by the Claimant but subsequently withdrawn on the day of the hearing.

Decision of the WRC Adjudicator:

1. In relation to the complaint pertaining to the alleged non receipt by the claimant of written terms and conditions, the Adjudicator held that he was satisfied that the respondent provided details of the terms and conditions in relation to the role of photographer/photo sales to the complainant. Some of these were also outlined at interview stage. He further noted that the complainant did not raise any grievance in relation to his terms and conditions and accepted that the respondent made the process of raising any queries and/or clarifications very clear in its e mail with the offer of employment made on 31/10/2019.

Based on the evidence provided the Adjudicator found that this complaint was not well founded, and found in favour of the Respondent.

2. In relation to the Sunday Premium Complaint, the Adjudicator confirmed that he was satisfied that the complainant was at all times aware that the requirement to work on a Sunday was an integral part of his role with the respondent. In his evidence he confirmed that Sunday was one of the busiest days at the Grotto. The complainant also confirmed that he never raised an issue with the respondent in relation to Sunday pay. It was also noted that the complainant did not review his terms and conditions document prior to accepting the offer. The Adjudicator accepted the respondent’s submission that the hourly rate included a Sunday premium. In that contact there is no legal obligation on the respondent to pay any additional Sunday premium.

3. In relation to the Break period issue, the Adjudicator held that workers are entitled to have breaks while they are at work. The Organisation of Working Time Act, 1977 sets out employees statutory minimum entitlements for the working week, annual leave, night work, breaks and rest periods. In general, a worker is entitled to a 15-minute break when you have worked 4.5 hours. If a worker works more than 6 hours they are entitled to a 30-minute break, which can include the first 15-minute break.

The respondent provided a copy of the applicable roster to the hearing. However, no records were provided in relation to what breaks were available to the complainant. Mr A, a director with the respondent outlined that each Grotto experience took on average seven minutes and outlined that the photographer was not required for the first three minutes of this experience and this period would allow for breaks to be taken.

The complainant submitted that the issue of breaks took place over a period of three days; 21st -23rd December 2019. His employment finished on 23/12/2019. It was found that the respondent had not provided evidence that the complainant was able to avail of his breaks on those dates. The respondent accepts that work days at the event were busy. The Adjudicator did not accept the respondent’s position that it is up to each employee to take their breaks whenever they could. It is clear that there were days when it was difficult for the complainant to take any breaks that were available to him under the periods specified in the legislation.

As the respondent did not facilitate the complainant with breaks and for failing to produce any records in relation to these matters this favours the complainant. The Adjudicator therefore found that the respondent was in breach of the Organisation of Working Time Act.

The period actually worked by the complainant was very short, the award of compensation was in part a deterrent to future breaches by the respondent and to encourage them to put appropriate measures in place.

The compensation for these breaches of the Organisation of Working Time Act is €200. If the complainant had worked longer than one-month period the award of compensation in relation to this complaint would have been more substantial.

Overall, the Adjudication was a satisfactory outcome for the Respondent, however it highlights important obligations on the part of employers even in short term seasonal employment situations where employers must maintain break rosters and proactively ensure staff avail of their legal entitlement to breaks during the day. Additionally, this decision highlighted the statutory requirements of employers to ensure written terms of employment are furnished to employees and to account for Sunday premium in relation to the employee’s salary.

More detail on this case can be found at https://www.workplacerelations.ie/en/cases/2021/november/adj-00028102.html

About the author: Kevin Sherry is an Associate Solicitor in the DGOD litigation department and can be contacted at sherryk@dgod.ie