DWT13105

Background

Ms Lidiya Saygina, ('the Complainant'), has been employed by the Respondent as a Cleaner since 26 August 2008. Initially the Complainant’s working hours were from 5:30 a.m. to 8 a.m. in one location in Aungier Street and from 9 a.m. to 10:30 a.m. in another location in Ranelagh. The Complainant requested additional hours from the Company and was assigned additional work in another location between 5:30 p.m. and 7:30 p.m. The Complainant submitted a complaint to the Labour Relations Commission on the 3^rdSeptember 2012 under Section 27 of the Organisation of Working Time Act 1998 (the Act). In the complaint she alleges that the Respondent infringed Section 11 of the Act by failing to schedule her work to provide her with a daily rest period of 11 consecutive hours in any 24 hour period. The Rights Commissioner decided as follows

“On the basis of the evidence presented to the hearing I find that the complaint was presented to the Rights Commissioner on 3^rdSeptember 2012 and covers the period commencing 4^thMarch 2012. I find that the respondent breached the provisions of Section 11 four times per week in the period covered by the complaint. I declare that the complaint is well founded and I require the respondent to pay the claimant compensation in the amount of €5,000.”

The Respondent appealed against that Decision to the Labour Court.

The case came on for hearing before the Court on the 25^thJuly 2013.

Position of the Parties

The facts of the case are not in dispute.

The Complainant submits that she is entitled to a daily rest period of 11 consecutive hours in any 24 hour period. She submits that the scheduling of her work by the Respondent had the effect of denying her access to a rest period of 11 hours on each of the days on which she worked for the Company.

The Respondent submits that the Complainant was initially assigned to work in two locations each morning. It submits that after a period of time the Complainant sought additional hours. The Respondent submits that it facilitated her request by assigning her additional hours on another contract in a third location between 17:30 hours and 19:30 hours each evening. It acknowledges that the time between the end of her evening duties and the commencement of her morning duties does not amount to 11 hours.

However the Respondent relies on Section 4 (2) of the Act

Section 4 (2) states

• "Without prejudice to Section 6, Sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day."

  The Respondent submits that the Complainant’s work was spread out over the day and argues that Section 11 of the Act does not apply to her. The Respondent further submits that as the Complainant works a total of 6 hours each day she has 17.5 hours in which she might enjoy the daily rest envisaged in the Act.

The Law

Section 11 of the Act states:

• “Daily rest period-

  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.”

• (2) "Without prejudice to Section 6, Sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.”

• (2) "Where by reason of the operation of Subsection (1) or (2) of Section 4 , or Section 5 , an employee is not entitled to the rest period or break referred to in Section 11, 12, or 13 the employer concerned shall—
  • (a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first mentioned rest period or break, or

In the Course of the hearing the Court enquired of the Respondent what steps it had taken to comply with the provisions of Section 6(2) of the Act. Specifically it asked the Respondent what steps it had taken when scheduling the Complainant’s additional evening hours to ensure that the “Employee has available to herself a rest period that, in all the circumstances, can reasonably be regarded as equivalent to the 11 consecutive hour’s rest period set out in Section 11 of the Act. The Respondent told the Court that it had not discharged that obligation. However it asserted that the Complainant’s working hours and rest period self-evidently confirm that she has access to a rest period equivalent to that required by Section 11 of the Act.

The Court does not accept this view. Section 6(2) places a positive obligation on the Respondent to 'ensure' that an Employee has access to adequate rest periods when scheduling work. The rights set out in Section 11 are fundamental rights and can only be compromised where the provisions of the Act are strictly complied with. In this case the Respondent confirmed that it did not discharge its obligation to 'ensure' that the Employee had equivalent rest available to her. It is not sufficient to seek to retrospectively determine that a rest period that departs from the provisions of Section 11 of the Act is the equivalent of the rest period mandated in that Section. The obligation is to 'ensure' that an equivalent rest period is allowed in the work schedule. Failure to do so amounts to an infringement of the Act and the Respondent loses the exemption set out in Section 4 of the Act. Moreover the Respondent’s own records show that while the Complainant was scheduled to finish work at 19:30 hours each evening, she in fact consistently worked until 20:00 hours thereby reducing her daily continuous rest period by a further 30 minutes. The Court finds that the Respondent paid no regard to the extent to which the provisions of Section 11 were being compromised in this case.

On the basis of the evidence before it the Court rejects the appeal on the substantive point.

However, the Court finds that the award made by the Rights Commissioner is not proportionate to the extent to which the Respondent infringed the Act. Accordingly the Court has varied the award to reflect the extent of the breach in this case.

Determination

The Court determines that the complaint is well founded and rejects the appeal. The Court requires the Respondent to pay the Complainant compensation in the sum of €2,500. The Rights Commissioner’s Decision is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
1st August, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.