FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : SOUTHERN HEALTH BOARD - AND - SEAN HERLIHY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Decision WT13676/03/JH
BACKGROUND:
2. The worker states that on the 6th December, 2002, he commenced his 12 hour night shift at 20.00 hours. He completed his shift at 15.00 hours on the 7th December, 2002, a total of 19 hours, which included an emergency trip to Dublin. The worker claims that he was given permission not to return to work at his normal time of 20.00 hours but to return at 23.00 instead. He was subsequently stopped three hours pay. He claims that under the Organisation of Working Time Act, 1997 he should have received an 11 hour break.
Management rejected the worker's claim. It states that employees directly involved in ensuring continuity of service in hospitals, other residential institutions and the ambulance service are exempt from the daily and weekly rest provisions by virtue of the Organisation of Working Time (Exemption) Regulations.
The dispute was referred to a Rights Commissioner for investigation. On the 30th July, 2003 the Right Commissioner issued her decision as follows:-
" I am satisfied that in this instance the claimant received the break which is provided in the current arrangements.For this reason I do not consider his complaint to be valid. I do recommend that the Southern Health Board again initiate discussions with SIPTU in respect of compensatory rest periods for E.M.T.s and the ambulance service to ensure that the practices in the employment comply with the Organisation of Working Time Act, 1997."
The worker appealed the Rights Commissioner's Decision on the 2nd September, 2003 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. The Court heard the appeal in Cork on the 5th November, 2003.
The following is the Court's Determination.
DETERMINATION:
The Court has considered the worker’s appeal of the Rights Commissioner’s recommendation. He claimed that part of the 8 hours approved rest received on 7th December 2002 was treated as a period of absenteeism and he sought three hours pay in lieu. The Rights Commissioner found that the claimant received an eight-hour break as provided for in the organisation’s arrangements. She stated she was not in a position to award compensation for loss of pay under the Act, and accordingly held that his complaint was not valid. The Rights Commissioner proceeded to recommend that the organisation should initiate discussions with the union in respect of compensatory rest periods for E.M.T.’s so as to ensure compliance with Organisation of Working Time Act, 1997(the Act).
Appellant’s case
On 6th December 2002 the appellant, an emergency medical technician, reported for work at 8pm to commence a twelve-hour shift. His duties that night included an emergency trip to Dublin, which resulted in his shift not being completed until 3pm the following day, having worked a total of 19 hours. He was given approval not to return to work at his normal shift start time of 8pm but to return at 11pm instead, which he understood would be ‘paid’ time off. When he received payment for the shift he noticed that the 3 hours between 8pm and 11pm on 7th December 2002 were considered as three hours absenteeism.
The claimant’s case is two fold:
1. He should have received a break equivalent to the 11-hour break provided by Section 11 of the Act. The break he received was not equivalent. His employer was therefore in breach of its obligations under the Act and the claimant is entitled to compensation.2. He further claims that as the final three hours of the 8-hour period he did receive took place within what would have been his normal working hours, he is entitled to payment for those hours.
He maintains that the approval given by the Controller on the afternoon of 7th December 2002 was rescinded without any consultation with him. The appellant further maintains that it is for him to choose his compensatory rest without reference to roster or service requirements.
Health Board’s case
The Board submit that the worker’s job constitutes an activity exempt under S.I. No 21 Organisations of Working Time (General Exemptions) Regulations, 1998. Therefore, if he did not receive the daily rest period to which he is entitled under Section 11 of the Act, he is entitled to a rest period that in all the circumstances can reasonably be regarded as equivalent to the appropriate rest period or break. The Board stated that negotiations in relation to these issues have been taking place on an ongoing basis and a proposal has been formulated and put to the union for consideration.
Conclusions of the Court
The basis of this case concerns the entitlement of E.M.T.’s to rest periods under Section 11 of the Act and if rest periods are not available in compliance with Section 11 the obligations on employers to provide for equivalent compensatory rest.
Section 11 of the Act states:
- "An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer."
By S.I. No 21 of 1998 the Minister introduced regulations exempting certain activities from the provisions ofinter aliaSection 11 of the Act.
It is common ground between the parties that the worker’s job constituted one of the activities exempted by S.I. No 21 of 1998 consisting as it does of the provision of services relating to “the reception, treatment or care of persons in a residential institution, hospital or similar establishment”.
Regulation 4 of S.I. 21 states that if an employee is not entitled, by reason of the exemption, to the rest period referred to in Sections 11, 12 and 13 of the Act then the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances can reasonably be regarded as equivalent to the first mentioned period and break.
S.I. No. 44 of 1998, The Code of Practice on Compensatory Rest provides further guidance as to what may be appropriate rest period.
Regulation 3.2 of S.I. 44 of 1998 states that equivalent compensatory rest should be given as soon as possible after the statutory rest has been missed out on.
It is clear, that it is the employer who decides what is the appropriate compensatory rest period taking into account the circumstances pertaining in the individual place of employment and the health and safety requirements for adequate rest.
The worker has requested the Court to make a finding that he is entitled to payment during 3 hours or possibly 6 hours of the compensatory rest period, as he would normally have been at work during that period, and as compensation for the employer's breach of the Act in not allowing him a rest period which could reasonably be regarded as equivalent to the period of 11 hours required under Section 11 of the Act.
Under the Act, there is no onus on the employer to pay the worker if the compensatory rest period should conflict with a time when the worker is normally at work. The onus is on the employer to provide an equivalent rest period as possible. The employee’s claim for payment during the time when the rest period conflicted with his normal hours of work is not allowed.
However, in providing the employee with only 8 hours rest after his shift, the Court is of the view that the employer did not provide an equivalent period of compensatory rest as required by the statute and the regulations.
The Court supports the Rights Commissioner's recommendation regarding negotiations with the union to ensure that compensatory rest is complied with for E.M.T.’s.
Determination
It is clear from the foregoing that the claimant did not receive compensatory rest in accordance with section 11 of the Act and S.I. No. 21 of 1998. His complaint is, therefore, well founded.
Redress
In this case the Court is satisfied that the appropriate form of redress is an award of compensation. InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the ECJ has made it clear that the judicial redress provided should not only compensate adequately for economic loss sustained but must provide a real deterrent against future infractions. The Court measures the quantum which is fair and reasonable in all the circumstances at €200 and directs the respondent to pay to the claimant compensation in that amount.
Accordingly, the decision of the Rights Commissioner is set aside and the appeal is allowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th November, 2003______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.