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In the recent decision of Mark Alcock v Knights Tower Trading (ADJ-00049112), the Workplace Relations Commission (“WRC”) made an award of €34,999.99 for multiple breaches of the Organisation of Working Time Act 1997 (the “Act”).
Facts: In September 2019, the Complainant commenced work as a Sous Chef with the Respondent Hotel and was promoted to the role of Head Chef in June 2022. The Complainant subsequently resigned, and his employment ended on 12th November 2023. The Complainant referred three complaints to the WRC in December 2023 claiming that the Respondent had breached section 11 of the Act dealing with daily rest periods, section 13 dealing with weekly rest periods, and section 15 in respect of maximum weekly working hours. The Complainant’s position was that on a number of occasions he was not afforded his daily and/or weekly rest periods and that he worked far in excess of his contracted hours and in excess of the maximum weekly working hours provided for under the Act.
The Respondent refuted the complaints and submitted as a preliminary point that Part II of the Act did not apply to the Complainant as he had complete control over his working hours and was in fact responsible for rostering his own hours and those of the other kitchen staff. The Respondent’s Managing Director gave evidence on behalf of the Respondent and stated that the General Manager’s role was to monitor the Complainant’s hours and that he would have seen what hours were and were not being worked. The Managing Director also stated that the Complainant would not have been approved for overtime.
The Complainant gave evidence agreeing that it was his responsibility to roster all kitchen staff, including himself. The Complainant also accepted that his contract provided for a 39-hour working week, however he stated in his evidence that he could not simply leave after eight hours when there were a large number of guests in the hotel and a number of functions taking place.
Decision: On the preliminary issue the Adjudicator, Ms Christina Ryan, considered section 3(2)(c) of the Act which provides as follows:
- Non-application of Act or provisions thereof
(2) Subject to subsection (4), Part II shall not apply to—
(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.
The Adjudicator also considered the decisions of the Labour Court in M & J Gleeson & Company v. Robert Maloney DWT 1395. The Labour Court determined that:
“[b]ased on the evidence provided the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders which was the main function of the business”.
On that basis, the Labour Court found that the Complainant’s employment was not the type envisaged by section 3(2)(c) of the 1997 Act.
Further, in Erac Ireland Limited v. Eddie Murphy DWT 1583 the Labour Court found that the Complainant was employed to work hours as determined by the business needs of the Respondent and consequently was not a person in control of his own working hours.
Taking into consideration the provisions of section 3(2)(c), the case law from the Labour Court and the evidence of the parties, the Adjudicator concluded that the Complainant did not determine his working time and found that the business needs of the Respondent determined the hours worked by him. On that basis, the Adjudicator found that Part II of the 1997 Act applied to the Complainant’s employment with the Respondent. Therefore, the minimum daily rest periods, weekly rest periods and weekly working hours provided in the Act applied to his employment.
In relation to the complaints in respect of breaches of the daily rest period and weekly rest period, the Adjudicator found that the Complainant gave credible evidence that he was not afforded his daily and/or weekly rest periods. The Adjudicator considered the case law and the EU Directive, Directive 93/104/EC (the “Working Time Directive”) from which the right to rest breaks is derived.
The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €5,833.33 being one month’s pay for the breach of section 11 of the Act and a further month’s pay of €5,833.33 for the breach of section 13 of the Act.
In relation to the complaint in respect of a breach of section 15 of the Act, the Adjudicator found that the Complainant gave credible evidence that he not only worked in excess of his contracted working hours, but also in excess of the maximum weekly working hours set out under the Act. Under section 15, “An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours…” The Adjudicator ordered the Respondent to pay the Complainant compensation in the amount of €23,333.33 being four months’ pay for the breach of section 15 of the Act.
Takeaway for Employers: In this case, the total award of compensation was €34,999.99 for breaches of the relevant sections of the Act. While the Complainant’s contract of employment provided that he had control over his own working hours, the Adjudicator was satisfied that it was in fact the business that determined his working time.
It is incumbent on employers to ensure that their employees take their minimum rest periods and that they do not work in excess of the maximum weekly working hours. Employers intending to rely on an employee’s ability to control his or her own working hours need to ensure that the employee genuinely has such control. This decision is particularly noteworthy in circumstances where the Adjudicator found that the Complainant’s working hours were determined by the needs of the business notwithstanding that the Complainant was responsible for rostering his own hours.
Link – WRC Decision
Authors – Ethna Dillon & Jenny Wakely
6 May 2025
Anne O’Connell Solicitors
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