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Failure to keep proper written records of working time and rest breaks is leading to larger compensation awards

It should be noted from the two decisions below in January 2019 alone, that the WRC are taking a stern approach to employers proving that the required rest breaks are being taken by employees by written records. In both cases below, maintaining such records, which employers are required to do so by law in any event,  would have saved the employer significant sums.

Claimant awarded €5,000 as Employer failed to record lunch breaks
In the recent decision of Adjudication Officer Pat Brady, the Claimant was awarded €5,000 for breach of the Organisation of Working Time Act 1997 as the Respondent failed to ensure that the Claimant received her lunch breaks.

Facts
The Claimant took a complaint under the Payment of Wages Act submitting that she worked during her breaks and calculated that this accumulated to a total of 415 hours over an 83-week period for which she should have been paid. The Claimant calculated this to be €9,976.60 in monetary terms. The Claimant also submitted a claim under the same facts under the Organisation of Working Time Act submitting that the Respondent was clearly in breach of the Act. The final claim was that she did not receive the statutory terms and conditions required under the Terms of Employment Information Act, which was undisputed by the Respondent.                           
The Respondent disputed the Claimant’s submissions but the Respondent did not keep a record of the breaks taken by the Claimant and was unable to prove this.

Decision
The Adjudicator dismissed the Claimant’s Payment of Wages claim stating that an employee may not be paid to forego annual leave, or other rest breaks, as it is a measure to protect their health. The remedy of remuneration for same would be a contradiction of the purpose of the Act.
The Adjudicator acknowledged that although the evidence of both parties left a lot to be desired, it was likely that on a great many occasions the Claimant did not get the breaks to which she was entitled, or they were interrupted. The Adjudicator commented that the gross exaggeration of the facts diminished the credibility of her claim.
The Claimant was awarded €5,000 in respect of the breach of the Organisation of Working Time Act and €1,000 in respect of the Claimants claim under the Terms of Employment Information Act.
This award was clearly due to the failure of the Respondent to keep records of rest breaks and working time in line with the obligations under the Organisation of Working Act.  

Link

WRC awards in excess of €25,000 compensation due to failure to keep proper working time records.

Facts
The Complainant was employed as a crew member by the Respondent fishing boat operator and submitted in January 2018 a total of seven complaints, primarily under Section 27 of the Organisation of Working Time Act, 1987 (the “Act”).

It is of note that inspectors of the WRC had carried out an investigation into the working relationship in April 2017. The Complainant was interviewed at the time, all documentation requested was furnished and no follow up was required. It was the contention of the Complainant that the crew were told to say nothing.

During the extensive hearing, the Respondent could not produce the prescribed working time records, but submitted a log book which calculated the fishing time only of the vessel over 24 Trips and did not take account of the other duties in the Contract of Employment.

Conclusions and Decision.
The Adjudicator attempted to calculate, from the limited details provided, the average working hours for each trip, which ranged from 21.32 hours fishing per day for 6 consecutive days to 4.48 hours fishing per day for 2.23 consecutive days.  

From the limited information in the log book the Adjudicator reached a number of conclusions. In relation to daily rest period, the Adjudicator found that the Complainant had rarely, if at all, received rest break entitlements and the Complainant was awarded €5,000.00 compensation.
In relation to weekly rest periods, the Adjudicator found that the hours of rest was well below 77 hours in any seven day period and awarded €10,000.00.

In relation to working more than 48 hours per week, it was found that this rule was broken on a consistent basis and the Adjudicator ordered €10,000.00 in compensation. In relation to underpayment of wages the Adjudicator awarded the further sum of €13,707.32.

Further awards of €483.41 and €575.64 were awarded in respect of outstanding leave and pay for public holidays.

The Adjudicator stated “the records of the Respondent were not prescribed by legislation, were incomplete, as described by the Complainant inaccurate and to [be] absolutely blunt, added no value whatsoever.”  

The Respondent had not discharged the burden of proof in proving compliance with the legislation.

Link 

30th January 2019

Anne O’Connell
Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2.
www.aocsolicitors.ie

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