DWT1157

Background

The Respondent carries on business as a contract cleaning provider. The Claimants were employed as cleaners by the Respondent for various periods. Mr Mitsov was employed in a supervisory capacity during the time material to these claims. The Claimant alleged breaches of various provision of the Act relating to breaks, dally rest periods and weekly rest periods.

The Claimants were assigned to clean a number of premises during the course of their working day. Typically, they would start work in one location, having completed their rostered hours at that location they would travel to work at another location and, in some instances, travel to work at a third location. In some cases they would then work a second shift in the evening but this would be separated from the earlier shift by a long break.

In essence the Claimant contend that the time allocated for travelling between locations during the first shift was just sufficient for that purpose and that they had no opportunity to take brakes during the course of the day. They claim the aggregate time spent while engaged in cleaning and travel during this shift exceeded four hours and thirty minutes and that, in accordance with Section 12 of the Act they should have received a break of at least 15 minutes. They claim that in failing to provide them with such a break the Respondent contravened s. 12 of the Act. In the case of Ms Petrova is further alleged that she was rostered to work over a seven-day period without access to weekly rest, contrary to s.13 of the Act. In the case of Ms Kirkova it is alleged that she completed her second shift at 9.00 p.m. and resumed work on the following morning at 6.00 a.m. She contends that the failure to provide her with a daily rest period of 11 hours constituted a breach of s.11 of the Act.

The Respondent contends that the periods spent travelling between work locations cannot, as a matter of law, be regarded as working time. It was submitted on its behalf that when this time is discounted none of the Claimants worked for a continuous period of more than four hours and thirty minutes. In respect tot the other matters complained of the Respondent submitted that the Claimant never raised any issue in relation to their working conditions while in its employment. The Respondent further submitted that it is for the Claimants to establish, with sufficient particularity, the dates and locations to which the alleged contraventions occurred.

It is common case that the Respondent did not maintain records in the form prescribed by s. 25 of the Act. In these circumstances the Claimant contend that the entire burden of proving compliance with the Act rests with the Respondent.

Preliminary questions of law

Two significant legal questions arose for consideration in this case. Firstly an issue arises as to whether time spent by the Claimants in travelling between locations in the course of their rostered working day is to be regarded as working time or as a rest period for the purposes of the Act. Secondly, an issue arises in relation to the practical application of s.25(4) of the Act in circumstances in which the Respondent has failed to maintain records in accordance with s.25(1) of the Act.

These questions were fully argued by the parties at the first and second hearings of the appeal. The Court reserved its position on these questions. At the third hearing the Court heard evidence on the facts in issue. It also received submissions of the question of remedy.

Conclusion of the Court on the preliminary questions of law

Working time

The facts

The factual context in which this issue arises, as set out earlier, is that three the Claimants were assigned to clean up to four premises per day on split shifts. Three of these premises were cleaned in the mornings. The fourth Claimant, Mr Mitsov, was their supervisor. The Claimants were expected to travel between locations and it is contended on their behalf that the time allocated for travelling (30 minutes) was just sufficient for that purpose. There was then a break of up to four hours after which a further assignment was undertaken in the afternoon or evening. It is accepted that this latter break does not constitute working time. The Claimants are paid only for the time in which they are actually engaged in performing their cleaning duties.

Time spent travelling between locations was not remunerated. The Court was told that this is in line with the established practice in the contract-cleaning sector.

The Respondent contends that only time spent by the Claimants in performing actual cleaning duties on the premises to which they are assigned constitutes working time for the purpose of ascertaining their weekly working hours and their entitlements to breaks during the course of the day. The Claimant contend that time spent travelling between the locations to which they were assigned in the course of the morning shift (an aggregate of 90 minutes) is not properly reckonable as working time.

The law

The Organisation of Working Time Act, 1997, implemented in this jurisdiction Directive 93/104/EC concerning certain aspects of the organisation of working time (the Directive). The purpose of the Directive is to make provision for the protection of the safety and health of workers. Section 2(2) of the Act provides that a word or expression that is used in the Act and is also used in the Directive has, unless a contrary intention appears, the meaning in the Act that it has in the Directive. Moreover, the Court must interpret the domestic law in light of the wording and purpose of the Directive so as to achieve the objective pursued by the Directive. This is the clear import of the Decision of the ECJ (now restyled the Court of Justice of the European Union –CJEU) in a line of authorities starting withVon Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1894, andMarleasing S.A. v La Commercial Internacional de Malimentacion S.A[1990] ECR 4135.

Section 2(1) of the Act contains the following definitions: -

“rest period” means any time that is not working time;

“working time” means any time that the employee is—

• (a) at his or her place of work or at his or her employer's disposal, and
  • (b) carrying on or performing the activities or duties of his or her work,

• • An employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity. The similar conclusion reached by the European Court in the SIMAP case applied to the on-call duty performed by the doctor in the present case. The decisive factor in considering that time spent on call by doctors in the hospital is working time is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. As those obligations make it impossible for the doctors to choose the place where they stay during waiting periods, they must be regarded as coming within the ambit of the performance of their duties.
    
    Neither the context nor the nature of the activities of the doctor in the present case was materially different from those in the SIMAP case. The fact that doctors can sleep or rest during the periods when their services are not required is not material, since such periods of professional inactivity are inherent in on-call duty performed by doctors where they are required to be present in the hospital.

• • Secondly, it should be pointed out that the purpose of Directive 93/104 is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.[Emphasis added]

• • “In order to ensure the effective protection of the safety and health of the worker provision must as a general rule be made for a period of work regularly to alternate with a rest period. In order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties......”[Emphasis added]
    

• • “Working time” within the meaning of the Working Time Directive means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, as opposed to “rest periods”, the two being mutually exclusive. The Directive does not provide for any intermediate category between working time and rest periods. Nor is the intensity of the work done by the employee and his output among the characteristic elements of the concept of “working time” within the meaning of the Directive.

Application to the instant case

In the instant case the Claimants are contractually obliged to attend at up to three different locations in the course of their first shift. The time spent at each location and the time allocated for travelling between locations is designated by the Respondent. The Court is satisfied that the time so allocated in just sufficient to enable the worker to arrive at the designated location in time to commence work.

The starting point and the finishing point of each journey undertaken is determined solely by the Respondent. In that respect the travelling in issue is an integral part of their contractual duties and is undertaken wholly, exclusively and necessarily in the performance of those duties. On those facts it seems logically to follow that while the Claimants are travelling they are performing a duty of their employment and are in that sense at the disposal of the Respondent. Crucially, the time allocated for travelling is just sufficient to enable the Claimant to finish cleaning at one location at the designated time and commence cleaning at the next location at the designated time. Consequently, this period could not provide the Claimants with any opportunity to relax and dispel the fatigue caused by the performance of their duties

In that respect this case is readily distinguishable on its fact from those considered by this Court in Determination DWT0816,Breffni Carpentry Services v Solodouikovs. In that case the Court considered if time spent by the Claimant in travelling from home to work should be regarded as working time in circumstances in which “travelling time” was payable under the terms of the Registered Employment Agreement for the Construction Industry. The Court rejected the proposition that such periods could be regarded as working time. Unlike the present case the time which a person spends in travelling to work is not determined by their employer, the starting point for each journey (the person’s home) is determined solely by the person and the travel could not be regarded as the performance of a contractual duty of the employment.

Finding

The Time spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act.

Section 25 – The allocation of the legal and evidential burden

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Failure to comply with this requirement, without reasonable cause, amounts to a criminal offence. However, no cause of action accrues to an employee by reason of his or her employer’s failure to maintain the requisite records.
Section 25(4) provides as follows: -

• • (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Finding

In the instant case the Respondent accepts that it did not maintain records in the prescribed form. The Claimants carry the evidential burden of showing that the time allocated in each location was fully occupied in undertaking cleaning duties and did not allow then any opportunity to take a break. The Claimants gave evidence to that effect and it is accepted as sufficient to discharge the burden which they bear. It is then be for the Respondent to adduce such evidence as is available to show that the Claimants in fact took breaks during the time allotted at the various locations. The Respondent therefore bears the legal burden of satisfying the Court, on the evidence overall, that the Act was not contravened in the manner alleged by the Claimants. If that probative burden is not discharged (on the normal civil standard of probability) the Claimants are entitled to succeed.

The evidence

The Respondent tendered in evidence work sheets showing the hours worked by the Claimants and the location at which they performed that work. These sheets showed the hours worked and the locations at which the work was performed. They did not, however, show the starting or finishing times nor did they record any interruptions in the work for breaks or other eventualities. The Claimants did not dispute the accuracy of the information contained in these work sheets. On the basis of the hours worked, as recorded on the work sheets, the representative of the Respondent conceded that if the time spent travelling between locations were to be regarded as working time the Act would have been contravened in respect to some of the Claimants. The Respondent did assert that in some instances the hours recorded on the work sheets contained provision for the taking of a break during working time. However the Respondent did not tender any evidence in support of that assertion.

The Court proceeded to examine the work sheets in respect to each of the claimants. On the basis of that examination and taking the evidence of the Claimants into account the Court has reached the following conclusions: -

Claim of Ms Gfenecheva: -

Ms Genecheva was not present at the final hearing. However the Court proceeded to examine the work sheets relating to her employment. On their face they did not disclose and contravention of the Act and her Solicitor conceded that in the absence of any rebuttal evidence her claim cannot succeed.

The Court is satisfied that her complaint is not well founded.

Claim of Ms Petrova: -

The Court is satisfied that Ms Petrova regularly worked on seven days per week. The Court is further satisfied that she regularly worked in excess of four hours and thirty minutes (including times spent travelling between locations in the course of her employment) without being afforded a break. Consequently her complaints alleging a contravention of s.13 and s.12 of the Act is well founded.

Claim of Ms Kirkova:-

The Court is satisfied that on some occasions Ms Kirkova finished her second shift at 9pm and resumed work at 6am the following morning. The Court is also satisfied that she regularly worked in excess of four hours and thirty minutes (including times spent travelling between locations in the course of her employment) without being afforded a break. Consequently her complaint alleging a contravention of s.11 and s.12 of the Act is well founded.

Claim of Mr Mitsov:-

Mr Mitsov was employed at all material times as a supervisor of the cleaning staff, including his co-claimants. His duties including arranging the transport of cleaners to their work locations, the delivery of materials to work locations and certain administrative duties undertaken at the Respondent’s head office.

Mr Mitsov completed his own work sheets and his working time is recorded in greater detail than in the case of his co-claimants. They detail the starting and finishing time at each of the locations in which he performed his duties. They consistently show that he started work at 7.30h and that he generally finished between 17.00h and 17.30h. He generally reported back to the Respondent’s offices during the course of the day and normally present at the offices between 12.00 or 12.30h and 14.00h and on at least one other occasion during the course of the morning. The Respondent submitted, and the Court accepts, that he was generally present in the offices at the times at which the office staff took their breaks. Mr Mitsov was responsible for organising his own working time.

In these circumstances the Court finds his assertion that he had no opportunity to take breaks during the course of his working day somewhat incredulous. On balance the Court is satisfied that Mr Mitsov had adequate opportunities to take the breaks to which he was entitled. As a matter of probability it is satisfied that he did, in fact take those breaks.

In these circumstances the Court is satisfied that Mr Mitsov’s claim is not well founded.

Determination

On the question of redress the Respondent submitted that if the Court concluded that the Act was contravened any such contraventions were technical and non-culpable in nature. It was further submitted that the Claimants did not raise any issue in relation to their working arrangements during the currency of their employment, and had they done so the matter could have been addresses. It was also submitted that the arrangements that the Respondent had in place were common within the contract cleaning industry and had never previously been impugned.

On behalf of the Claimants it was submitted that the requirements of the Act are well known and the Respondent cannot rely on any lack of awareness of those requirements. It was submitted that the appropriate redress is an award of compensation which should be proportionate, effective and dissuasive.

In the Court’s view there are no aggregating factors in this case and there are a number of mitigating factors. Firstly, The principal complaints herein relate to the Respondent’s failure to provide break in the course of the day. While the Court has found that there were contraventions of s.11 and s.13 they occurred infrequently and were not the main grounds upon which the complaints were founded. The Court is satisfied that the arrangements giving rise to the principal complaints arose for the Respondent’s bona fide (but as the Court has found mistaken) understanding of the relevant statutory provisions.

The Court is further satisfied that the Claimants did not take issue with these arrangements at any time during the currency of their employment and that had they done so the Respondent would, in all probability, had addressed their complaints. The Court is also satisfied that similar arrangements are common in the sector, which is regulated by a Joint Labour Committee, and there is nothing in the ERO made by that JLC which prohibits such arrangements. Finally, the Claimants suffered no pecuniary loss in consequence of the infringements that occurred and may have made a financial gain in working longer hours than they should have worked. Nonetheless, the Act was contravened and this must be marked by the Court in considering the question of redress.

Having taken account of these considerations the Court determines as follows:

Ms Gfenecheva

The Rights Commissioner found that s.13 of the Act was contravened in this case and awarded the Claimant compensation in the amount of €500. The Court found that that the complaints in this case were not well founded. Accordingly the decision of the Rights Commissioner in respect to Ms Gfencheva is set aside.

Ms Petrova

The Rights Commissioner found that s.11 and s.13 of the Act was contravened and she awarded the Claimant compensation in the amount of €1,000. The Court did not find any contravention of s.11 but it did find that s.12 and s.13 was contravened. The Court regards the quantum of compensation award by the Rights Commissioner as reasonable and that award is affirmed.

Ms Kirkova

The Rights Commissioner found that s.11of the Act only was contravened in relation to this Claimant. The Court has found that s 11 and 12 was contravened in this case. The Rights Commissioner awarded Ms Kirkova compensation in the amount of €1,000. . The Court regards the quantum of compensation award by the Rights Commissioner as reasonable and that award is affirmed.

Mr Mitsov

The Rights Commissioner found that Mr Mitsov’s claims were not well founded. The Court has reached the same conclusion. The decision of the Rights Commissioner is affirmed.





Signed on behalf of the Labour Court



Kevin Duffy
19th May, 2011______________________
CONChairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.