Case Law Reviewed - Photographer left after being unable to take breaks in final run-up to Christmas
Background
The complainant worked as a photographer for the respondent who operates a “Santa’s Grotto Experience”. He commenced employment on 22/11/2019 and ended on 23/12/2019. He was paid €12 per hour. The complainant submitted a number of complaints to the Workplace Relations Commission on 08/05/2020. Two of the complaints were withdrawn by the complainant at the hearing: CA-00036065-003 and CA-00036065-007.
Summary of Complainant’s Case
The complainant is a photographer and commenced employment with the respondent on 22/11/2019 and was based at one of the respondent’s Santa’s Grotto Experience venues.
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CA-00036065-001: The complainant did not receive a contract of employment and did not receive any details in relation to his terms and conditions of employment.
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CA-00036065-002: The complainant was paid €12 per hour and did not receive any additional payment for working on a Sunday. Sundays were the busiest days and he did not have any opportunity to negotiate additional payment for Sunday working.
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CA-00036065-005: The complainant did not get any breaks during the last three days of his employment.
Summary of Respondent’s Case
The respondent operates a “Santa’s Grotto Experience” at various locations throughout Ireland. The complainant was interviewed for the role in October 2019 and was subsequently offered the role of “Photographer/Photo Sales”. This role was a short term, seasonal role and Sunday and week-end work were an integral part of the role. Details of the role were formally issued to the complainant by e mail on 31/10/2019. This e mail contained a link to a document which contained details of the terms and conditions and it make it clear that if the complainant should “print this email or otherwise save it to refer back to for any questions relation to your rate, payroll instructions and training information.” This e mail made it clear that “if you have any questions at all before accepting this offer, please contact us directly at XXX”. [ mobile phone number].
The complainant confirmed his acceptance of the employment terms as of 31/10/2019. The document contained within the email set out the hourly rate and the conditions of employment. The complainant did not raise any issue or grievance in relation to his terms and conditions as set out prior to or during his terms of employment. The complainant employed as a short-term casual employee. The complainant’s hours were not fixed and at all times he was aware that Sunday working was a requirement. At no stage did the complainant raise any query in relation to having to work Sunday hours. The requirement to work on Sunday was taken into consideration in calculating the complainant’s remuneration which was set at €12 per hour. The complainant was one of two photographers working at the respondent’s Grotto site. The second photographer left at short notice. The complainant indicated that he wished to avail of any and all the additional hours that were available. The respondent had other photographers available in other locations who could have provided support at the complainant’s location. The complainant’s request for additional hours was facilitated and therefore it was not necessary to engage the services of an additional photographer. The complainant was rostered for the additional shifts. The respondent acknowledges that the event was busy, but it provided all staff with breaks throughout the day in accordance with Section 12 of the Organisation of Working Time Act, 1977. Toilet facilitates were also available. All staff working at the Grotto were allowed bring in refreshments. The respondent also provided adequate supplies of drinking water and coffee and food provisions. All staff were aware that they took their breaks when the opportunity arose.
Findings and Conclusions
The complainant submits that he did not receive a contract of employment any details in relation to his terms and conditions of employment. The respondent submitted evidence of an e mail sent to the complainant with a link to the terms and conditions in relation to his employment. Under cross examination the complainant confirmed that he did not use this link to review these terms and condition before accepting the post. He also confirmed that he did not raise any formal grievance in relation to any of his terms and conditions. Thus, the adjudicator is 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. The adjudicator notes that the complainant did not raise any grievance in relation to his terms and conditions. The adjudicator accepts 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, this complaint is not well founded.
The complainant was paid €12 per hour and submits did not receive any additional payment for working on a Sunday. He did not have any opportunity to negotiate additional payment for Sunday working. The respondent is clear that the rate of pay of €12 per hour took into consideration the fact that the complainant would be required to work on a Sunday. The adjudicator is 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 the contact there is no legal obligation on the respondent to pay any additional Sunday premium.
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. Therefore, it is found that the respondent was in breach of the Organisation of Working Time Act. The period worked by the complainant was very short, the award of compensation is 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 be more substantial.
Decision
Under section 41 of the Workplace Relations Act 2015, the adjudicator finds that CA-00036065-001 and CA-00036065-002 is not well founded. However, the adjudicator finds that CA-00036065-005 is well founded and awards the complainant the sum of €200.00.
Our Commentary
An Employee working less than 4.5 hours is not entitled to a break under the OWT Act, unless agreed as a term of the contract of employment. An Employee working 4.5 hours or more, but less than 6 hours, must be provided with a minimum break period of 15 minutes during their working day. An Employee working 6 hours or greater must be provided with a 30-minute break during their working day. Where an Employee is entitled to this 30-minute break, he/she does not have to be provided with the 15-minute break earned after 4.5 hours work. There is no obligation to pay an Employee in respect of these break periods unless otherwise agreed in the contract of employment.