An ice cream parlour worker was not an “artisan” who could “dictate” his own breaks, the Workplace Relations Commission (WRC) found as it awarded him compensation against his employer.
The retail group operating a Gino’s Gelato outlet was ordered to pay Andrea Bandacchino, who took up the position as his first job in Ireland, €1,320 in compensation after finding he was subject to a “pattern of denial of breaks” while working without a statement of employment terms.
The WRC awarded him €440 for working without a shift break on four days between November 12th, 2021, and the termination of his employment on January 12th, 2022. It made an order for a further €880 for the company’s failure to provide him with a written statement about the terms and conditions of his employment.
The claims had been entirely denied by the firm, which operates a number of Spar and Gino’s Gelato outlets in Dublin city centre.
Mr Bandacchino submitted clock-in records to show that after working six hours at a time he had not been facilitated in taking his legally required 30-minute shift breaks. As Mr Bandacchino had put in his first set of complaints last May, several months after the date of his termination, the WRC was limited in its jurisdiction and could only examine alleged breaches during the last two months of his employment.
[ Speed van operators who claimed they were denied breaks lose at WRC ]
Majella Caffola, operations and human resources director for C&C Retail Ltd, claimed that a gelato maker was an “artisan” who “dictates” his breaks and that it was not the company’s fault if he did not take them, a position rejected by the WRC.
“The gelato maker usually dictates his or her own breaks, given the nature of the work, and therefore if the complainant did not avail of his breaks, it was not the fault of the respondent,” she said.
The worker’s position was that breaks were not facilitated either because the ice-cream parlour was busy or because he had to carry out other duties.
WRC adjudicating officer Thomas O’Driscoll said the established case law was that an employer was under a “positive duty to ensure employees received their rest breaks”. He noted that there was a “recorded pattern of denial of breaks” prior to the last two months of Mr Bandacchino’s employment.
[ Painter-decorator who claims employer assaulted him wins WRC case ]
“This will not be taken into account when calculating compensation, but I cannot ignore the fact that the four days in question do not seem to be isolated incidents,” he wrote.
Ms Caffola also told the tribunal she sent a contract to the shop where Mr Bandacchino worked to be signed, but accepted that she could not testify that he “actually received the terms”.
Upholding the employment terms breach, Mr O’Driscoll noted Mr Bandacchino’s evidence that the ice cream parlour was his first job in Ireland and he was not familiar with his employment rights.
“I conclude that the impact of not receiving his terms under such circumstances was an aggravating factor that should be reflective in the compensatory sum,” he added.