Food for Thought: Working Time Breaches in a Head Chef’s WRC Case
A recent WRC case saw a Head Chef awarded nearly €35,000 after raising a claim about working time breaches. The decision highlights the critical importance of adhering to legal requirements for working hours and rest periods.
Background
The complainant, Mark Alcock, began working for Knightsbrook Hotel Spa and Golf Resort in 2019 as a Sous Chef and was later promoted to the position of Head Chef. Mr Alcock resigned in October 2023 and subsequently raised a complaint to the WRC in December 2023, alleging that his former employer had breached the Organisation of Working Time Act 1997.
Employment Law
The Organisation of Working Time Act 1997 sets out specific requirements for rest periods and working hours. Key sections relevant to this case include:
- Section 11: An employee is entitled to a daily rest period of at least 11 consecutive hours within each 24-hour period.
- Section 13: An employee is entitled to a weekly rest period of at least 24 consecutive hours, which should be preceded by a daily rest period (or, two rest periods of at least 24 hours each, in the following week)
- Section 15: Employers must ensure that employees do not work more than an average of 48 hours per week, calculated over a reference period.
The WRC Adjudication Officer found that the complainant was not afforded the required daily and weekly rest periods and routinely worked in excess of the 48-hour weekly limit.
Conclusion
This case underscores the necessity for employers to diligently monitor working time requirements. The complainant's evidence and the lack of sufficient documentation from the employer led to a total compensation award of €34,999.99.
Takeaways for Employers
Ensuring compliance with working time legislation is crucial to protecting employee wellbeing and reducing the risk of costly penalties.
Bright Contracts offers a wide range of employment resources, including template policies for working hours and rest periods. Please visit our website or contact a member of our team to find out more about the support we can offer you.
The ‘One Year’ Calculation Mistake
A recent WRC case highlights the importance of following fair procedures and understanding the requirements of employment law in relation to dismissals. The complainant, Mr Ryan McAuley, raised an Unfair Dismissal claim against Miniso Ireland Limited after he was dismissed on the 359th day of his employment.
Background
Mr McAuley began his employment with Miniso Ireland on 30th April 2022 as a Shop Assistant. He was then promoted to Supervisor in September 2022. However, on 24th April 2023, he was abruptly dismissed. On that day, he had started his work shift at 10:00, as rostered. However, shortly after 12:00, he was called to the office of his manager, Ms Chloe Yi. He was handed a dismissal letter, stating unsatisfactory performance and that his employment was therefore terminated with immediate effect. Mr McAuley questioned the reason for his dismissal and was taken aback by the explanation given by Ms Yi.
Mr McAuley had never received any warnings, either informal or formal, or been the subject of any disciplinary procedure. Following the dismissal, he sought clarification about the termination. He received support from Citizens Information, but the matter was not resolved, so his claim proceeded to a Workplace Relations Commission (WRC) hearing.
Employment Law
An employee is usually required to have one year of service to raise an Unfair Dismissal claim (there are certain exceptions, such as for whistleblowers, but these weren’t relevant in this case). Whilst 359 days would initially appear to be less than the ‘one year’ required, The Minimum Notice and Terms of Employment Act clarifies that if an employee accepts payment in lieu of notice (PILON), the termination date will be ‘the date on which notice, if given, would have expired.’ For Mr McAuley, this meant his service was calculated to end on the 366th day of his employment, making him eligible to claim Unfair Dismissal.
Conclusion
Mr McAuley attended the hearing, supported by a representative from the North Dublin Citizens Information Service. The respondent did not attend the hearing.
The WRC Adjudication Officer concluded the complaint was well founded; Mr McAuley had been unfairly dismissed. The respondent was ordered to pay him €9,750 in compensation.
Takeaways for Employers
This case serves as a reminder of the importance of adhering to fair procedures and understanding the nuances of employment legislation.
Bright Contracts clients have access to a wide variety of employment resources to help ensure their practices are fair, legally compliant, and conducive to a positive work environment. Please visit our website or contact a member of our team to find out more about the support we can offer you.
Texting Trouble: The Importance of Notice Periods
Upholding employee rights and adhering to statutory requirements during notice periods is crucial. Even if an employer feels aggrieved by an employee’s resignation, it is vital to be aware that employment rights remain intact throughout the notice period. A recent WRC case highlights the financial and reputational risks of non-compliance during this critical time.
Ms Yewande Mosobalaje took a stand for her notice period rights by filing a WRC claim against her former employer, Sandonato Ltd t/a Lennox Fish and Chips. After starting her job in September 2023, Ms Mosobalaje gave two weeks’ verbal notice on 12th May 2024, which was accepted by Mr C on behalf of the employer. However, at 11.40pm the next day, he sent a text message stating there was no need to work her notice. Left without pay after 16th May, Ms Mosobalaje decided to take action by raising a WRC claim for notice pay. The respondent did not attend the hearing or provide an explanation for their absence.
As the complainant had eight months’ service, the WRC Adjudication Officer determined that the statutory notice, as per the Minimum Notice and Terms of Employment Act 1973, was one week. Concluding the respondent had wrongfully withheld the wages for this notice period, the officer ordered Sandonato Ltd to pay €450 to Ms Mosobalaje.
Takeaways for Employers
While it is possible for an employer to fairly dismiss an employee without notice, strict requirements must be met. For instance, a contractual right to dismiss without notice may apply in cases of gross misconduct. Additionally, there are alternatives to working the notice period, such as PILON (pay in lieu of notice).
Bright Contracts clients benefit from comprehensive templates for employee contracts, with various options in the Notice clause, including dismissal without notice, PILON, and alternative duties. These provisions offer flexibility and clarity for employers. Please contact us to learn more about the helpful resources and support we can offer you.
Start 2025 Right: The Importance of Employment Terms
The new year offers an ideal time for employers to review employee documentation and ensure compliance with legal requirements. A number of recent WRC cases provide an important reminder that the legal requirement to issue written employment terms to employees includes trainee and intern employees. By adhering to the requirement to provide employment terms in writing, employers foster a professional work environment and reduce the risk of potential legal disputes.
Daina Cathcart worked as a Trainee Picture Framer for Glenart Framing & Art Gallery Limited for several months, but was not provided with a written statement of employment terms. After the end of her employment, Ms Cathcart submitted a complaint to the WRC. In response, the Director agreed that a written statement had not been issued. Consequently, the WRC Adjudication Officer found the complaint well founded and ordered the respondent to pay the complainant compensation of €991, approximately two weeks’ remuneration.
Kelvin Tobun worked as an intern at Dx Compliance Ltd, but raised a WRC claim stating that he had not been given any written terms and conditions, despite asking for an employment contract, and had not been paid his wages in August or September 2023. The WRC Adjudication Officer found both complaints well founded and therefore ordered the respondent to pay Mr Tobun €609.12 for not having provided the required employment terms and €2,370 for the unpaid wages.
Takeaways for Employers
To conclude, it is crucial that employers are aware that the requirement to provide written employment terms applies to all employees, including employees working as trainees and interns. These cases are just two recent instances highlighting the financial and reputational risks of not complying with this requirement, there are many other examples with similar outcomes.
Bright Contracts offers template employment contracts and other resources to help employers meet their obligations. Visit our website or talk to a member of our team to find out more about the help we can offer you.
A Win for Workplace Safety: Employer’s Victory in Phone Use Dismissal
DMC Foods Limited, a consumer foods business and ready meal manufacturer, successfully defended an Unfair Dismissal claim raised by Daniel Murtagh, a Warehouse Operative who was dismissed after using a mobile phone while operating a forklift. This case highlights the legal backing given to employers who follow clear, reasonable and legally compliant procedures.
Background
An investigation opened after the Production Manager received a complaint that Mr Murtagh was operating a forklift while using a mobile phone. An external party conducted the investigation, which included CCTV evidence and Mr Murtagh admitting to using the phone. Following the investigation, Mr Murtagh was invited to a Disciplinary Hearing, in which he was not apologetic but attempted to justify his actions. The Managing Director decided the seriousness of the health and safety breach, and the employee’s current written warning for a separate conduct incident, justified dismissal.
Mr Murtagh brought a claim of Unfair Dismissal, alleging that he was unfairly singled out and dismissed for using the phone, when it was common practice, and he was not driving ‘at speed’. His evidence included two statements from former colleagues, one of whom admitted to using a phone while their forklift was stationary, and the other who explained he had left the company after being informed of an investigation into his mobile phone use. Mr Murtagh conceded the use of a phone while operating a forklift was a dangerous practice.
Health and Safety Authority guidance to employers confirms that mobile phones should never be used while operating a forklift. The employer defended the claim by describing how the dismissal was procedurally fair, in line with the Code of Practice on Grievance and Disciplinary Procedures, and the dismissal outcome was proportionate with the seriousness of the health and safety breach.
WRC Decision
The WRC Adjudication Officer considered the evidence from both parties then determined that the use of the phone was ‘extremely dangerous’ and therefore justified a dismissal for the reason of conduct, and the procedure followed was reasonable. He concluded that the dismissal was fair.
Takeaways for Employers
Employers should feel confident about following fair and reasonable procedures to address safety concerns. Clear, reliable policies help to protect the best interests of employees and employers.
Bright Contracts provides employers with template HR documents which can be easily tailored to your specific needs. Our resources include comprehensive policies, helpful guidance notes, and useful supporting documents. Visit our website or talk to a member of our team to find out more about the support we offer.
Working Time ‘Fowl Ups’ for Chicken Business
Background
The complainant, Suman Bhurtel, brought 6 claims to the WRC about his former employer Chicken Castle Limited Chicken Club – 5 for violations of Working Time regulations and 1 for National Minimum Wage underpayment. The respondent provided a defence for all 6 claims so the WRC Adjudication Officer needed to determine the validity of each claim.
The complainant’s working time claims referred to: working Sundays but not receiving a Sunday premium; working public holidays but not receiving an extra payment; under payment of annual leave; not receiving rest periods he was entitled to; working an average of 70 hours per week; and being paid an hourly rate below the National Minimum Wage.
The respondent defended these claims using the following arguments: the complainant did not work Sundays; the complainant did not work public holidays; the complainant was paid in cash for annual leave; the complainant worked 39 hours per week; and the hourly rate was not below the National Minimum Wage.
WRC Decision
For each of the claims, the WRC Adjudication Officer concluded that the complainant provided credible and clear evidence. The lack of documentary evidence provided by the respondent was criticised and the excuses, such as the Company Secretary not being able to access the shop where records were kept, were not acceptable.
Each claim was judged to be well founded and therefore the respondent was ordered to pay compensation to the claimant.
Takeaways for Employers
This case confirms the importance of employers following the Working Time and National Minimum Wage legislation and keeping the required records.
Bright Contracts clients have access to a legally compliant Employee Handbook policies, including a template Hours of Work and Rest Periods Policy. Please contact us if you would like more information.
€1,000 Lesson on Fair Dismissal Procedures
In this recent case, the complainant’s former employer was ordered to pay €1,000 compensation due to the dismissal process followed – and the amount could have been much higher...
Background
The complainant, Mr Grzegorz Grygier, started employment with Ideal Fire Limited in January 2022. He passed his 6-month probation on time and no concerns had been raised about his performance before he was invited to a meeting with Mr Ray Dooley, Company Director, in January 2023. During this meeting, Mr Grygier’s employment was terminated. The reason given was performance, due to an issue with a gas suppression system.
During the WRC hearing, Mr Dooley confirmed that no formal investigation had occurred, or a Disciplinary hearing, and he had not raised any issues with the complainant prior to the dismissal meeting.
Training records appeared to show only a limited amount of training, which may not have included gas suppression systems, and there had been no negative consequences to the company due to the incident.
The company representative confirmed the dismissal was due to the gas suppression system, but later it was suggested that the reason was instead due to an absence incident. No process had been followed regarding this absence, and it had not been referenced during the dismissal meeting.
WRC Decision
The WRC Adjudication Officer concluded that no investigation or Disciplinary process had been followed, the complainant was not given the opportunity to state his case, and he was not afforded the right to representation. Therefore, she found the dismissal to be procedurally unfair. The complainant’s case succeeded.
Following the Unfair Dismissal finding, the Adjudication Officer considered the amount of compensation to be ordered. The complainant had found employment a week after his notice period expired, and this new job included a higher rate of pay. The Adjudication Officer decided that the Respondent should pay €1,000 in compensation. If the complainant had not been so successful in quickly obtaining a better paid role, the compensation ordered could have been considerably higher!
Takeaways for Employers
This case confirms the importance of following fair Disciplinary procedures. If a reasonable process had taken place, the sequence of events could have been very different, potentially avoiding a claim happening at all.
Bright Contracts clients have access to a comprehensive Employee Handbook, including a template Disciplinary Policy. Please contact us if you would like more information.
Case Law: Big Fine for Not Providing Employment Documents!
A Dental Technician was awarded over €13,000 after her claims, of not being provided with written employment terms, Unfair Dismissal, and lack of notice pay, were upheld.
The negative consequences of not providing appropriate employment documents were highlighted in this recent Workplace Relations Commission case (ADJ-00034847).
Background
The complainant, Sarah O’Connor, worked as a Dental Technician for the respondent, Cas Dental.
O’Connor alleged that she had not received a written statement of her terms of employment, or a disciplinary procedure, or an employee handbook.
The complainant also explained that she did not receive a letter inviting her to the dismissal meeting. The dismissal meeting lasted about a minute. She was not given notice pay or the right to appeal.
Defence
Mr Colum Sower, a director of the respondent, explained that he thought he had a period of one year to issue an employment contract and this was his understanding based on advice he had received from the Small Business Association.
Mr Sower gave evidence that he issued the complainant with verbal warnings and a written warning before the dismissal, although there was no final written warning or formal improvement plan.
A notice payment was not made, but the complainant was given a payment for good will.
The respondent accepted the procedure used was not perfect but argued that the complainant had not met the required performance standards and there are serious consequences of not meeting standards in the medical profession.
WRC Decision
The WRC Adjudicator found that the claim of not being issued with written terms of employment was well founded. The respondent was ordered to pay compensation of four weeks’ remuneration to the complainant.
The claim of lack of notice pay was also upheld and the WRC Adjudicator ordered the respondent to pay one week’s remuneration to the complainant.
The WRC Adjudicator concluded that the Unfair Dismissal claim was well founded.
There were breaches of the Code of Practice on Grievance and Disciplinary Procedures, including no opportunity for representation at the dismissal meeting, and serious procedural flaws. The Adjudicator concluded that no reasonable employer would have dismissed the complainant in the circumstances and in this manner. The respondent was ordered to pay €12,000 compensation to the complainant.
Takeaways for Employers
It is essential to comply with the legal requirement to provide employees with written terms and conditions of employment within the required time limits. The excuse of receiving incorrect advice was not accepted by the WRC Adjudicator.
Bright Contracts clients can quickly and easily create legally compliant terms and conditions of employment using the step-by-step instructions in our software.
It is also important to understand legal obligations relating to notice pay.
Bright Contracts includes a legally compliant template contract clause about notice.
Finally, failure to follow reasonable procedures can result in serious consequences. In the O’Connor v Cas Dental Case, the respondent suffered reputational damage and was ordered to pay significant amounts of compensation.
Bright Contracts has a ready to go Employee Handbook which clients can tailor to their requirements. Policies and procedures are reviewed and updated in line with employment law changes and recommended practices.
WRC Inspections: What you need to know
WRC inspectors carry out employment rights compliance inspections and associated enquires. In general, an employer will get advance notice of an inspection. In some instances, an inspector has the right to show up unannounced.
Inspectors have the following powers:
- To inspect and take copies of any documents or records
- To remove any books, documents, or records and retain them for such period as the inspector considers necessary for the purposes or their functions under the Workplace Relations Act 2015
- To require any person at the place of work or premises to produce such books, records or documents as the inspector may require for the purposes of their functions under this Act
- To examine any person who they believe to be or have been an employer or employee, and to require such person to answer questions as the inspector may ask relating to the employment.
Preparing for an inspection
Employers should always be prepared for a WRC inspection as these may happen at any stage.
Employers Checklist:
- Employers’ registration number with Revenue Commissioners
- A list of all employees: full names, addresses, and PPS numbers
- Dates of commencement and dates of termination of employment
- Written terms of employment for each of the employees
- Employee’s job classification
- A record of annual leave and Public Holidays took by each employee
- Hours of work for each employee (start and finish time)
- Payroll details: gross to net, rate per hour, overtime, deductions, commission, bonuses, service charges, etc.
- Evidence that Employees were provided with pay slips
- A register of any employees under 18 years of age
- Details of any board and lodgings provided
- Employment permits or evidence that permit is not required as appropriate for non-EEA nationals
The Inspection
Reasons:
- Response to alleged non-compliance
- WRC compliance campaigns- sector/legislation specific
- Routine inspections
Conduction of the inspection
The inspection will carry out an interview with the Employer or their representative. At this stage, all relevant records will be requested, calculated, and examined.
After examining the records, the inspector will interview a sample of employees to gather additional information. These findings will be shared with the employer.
If it appears that all is compliant, the inspector will issue a letter concluding the inspection.
Examining the records
Accurate records can protect employers from false allegations
The inspector will examine a sample of records over a period of one year prior to the examination. They will then determine if they should examine further records within the previous years from what they see in the first records.
Examples of inspection Offences
- Failure to pay the National Minimum Wage rate
- Failure to keep employment records for a period of 3 years
- Failure to give a statement of wages (e.g. payslip)
- Employing a person who is not an EEA or Swiss national without a valid employment permit or other valid permission to work.
Related Articles
The WHO?WHAT?WHERE? and WHY? Of The WRC
Hiring Young People in Ireland
Young employees are people aged 14 to 18, who work for an employer. As young workers are generally in full-time education, they are protected by a different employment law than adult workers. This is to make sure their work does not put their health or education at risk.
Restrictions on Employing 14 & 15 Year-Olds
By law, children ages 14 and 15 cannot be employed in regular full-time jobs.
However, they can:
- Do light work during the school holidays
- Take part in an approved work experience or educational program
- Work in film, culture, advertising, or sport
Working Hours for 14 & 15 Year-Olds
Outside school term time
Can work a maximum of 35 hours a week or up to 40 hours if they are on approved work experience.
During school term time
Children aged 14 are not allowed work during school time. Children aged 15 can do 8 hours of light work a week.
Restrictions on Employing 16 & 17 Year-Olds
Young people aged 16 and 17 can work a maximum of 8 hours a day, up to 40 hours a week.
Young people are only allowed to work between 6 am and 10 pm.
Paying Young Employees
All employees have a right to get a payslip. A payslip is a written statement from the employer that explains your total pay before tax, and all details of any deductions from pay.
Minimum Wage
Since 1 January 2022, the national minimum wage is €10.50 per hour. However, not everyone is automatically entitled to get this.
Aged 20 and over- €10.50 an hour
Under18 - €7.35
Aged 18 - €8.40
Aged 19 - €9.45
Your employer can pay you more than the minimum wage if they want, but they are not required to by law.
Employers’ Responsibilities
Employers must keep records for every employee under 18, including:
- The employee’s full name
- The employee’s date of birth
- The employee’s starting and finishing times for work
- The wage rate and total wages paid to the employee
The employer must keep these records for at least 3 years.
Employers must also give employees aged under 18 a copy of the official summary of the Protection of Young Persons (Employment) Act, and other details of their terms of employment within one month of taking up a job.
Employers with employees under 18 must also display the official summary of the Act in their workplace, where it can easily be read by staff.
Breaches of the Protection of Young Persons (Employment) Act
Employers who are found guilty of an offense under the Protection of Young Persons (Employment) Act can be fined up to €1,904.61 and an extra €317.43 a day for a continuing offence.
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Employee Inductions: The Complete Guide
