DWT13121

The Claimant contends that he was not afforded breaks at work in accordance with s.12 of the Act.

The Claimant was employed as a security guard from September 2009 until September 2012. His duties involved maintaining security at the premises of one of the Respondent’s clients. He was located in a security hut at the entrance of the premises and he was responsible for checking trucks and other vehicles entering and leaving the premises. The nature of his duties was such that he could not leave the security hut, other than to check vehicles, during his normal shift.

The Court is satisfied that the activity in which the Claimant was engaged comes within the ambit of paragraph 2 of the Schedule to the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. 21 of 1998) (the Regulations) . That being so,prima facie,the Claimant’s employment came within the exemption at Regulation 3 from the requirements of sections 11,12, 13 and 16 of the Act.

The point taken on behalf of the Claimant is that the availability of the exemption is conditional on compliance with Regulation 5 of the Regulations. This provides: -

• “An employer shall not require an employee to whom the exemption applies to work during a shift or other periods of work (being a shift or other period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines”

It is the Respondent case that the Claimant was provided with kitchen facilities in the security hut in which he worked and that there were significant periods of inactivity during the day during which he could take breaks. The Court was further informed that the Claimant was told on induction that he could not leave the security hut but that he could use the facilities provided to take breaks during the day.

Conclusion of the Court

The Court notes that the Claimant worked for the Respondent for three years during which time he made no complaint in relation to the matter now before the Court. The Court is satisfied as a matter of probability that the Claimant was told that he could take breaks during periods of inactivity during the course of his shift. The Court is further satisfied that the presence of cooking facilities in the security hut must have made it clear to the Claimant (if he was ever in any doubt) that he could avail of breaks while at work. It is not denied that the Claimant did in fact take breaks.

In these circumstances the Court is satisfied that Regulation 5 of the Regulations was complied with in relation to the Claimant. The Court is further satisfied that the Regulation 3 of the Regulations was operative in this case and that the Claimant’s employment came within the exemption provided by that Regulation.

By way of general observation, it appears that disputes of the type giving rise to this case could be easily avoided if the Respondent placed a suitably worded notice in the security hut advising employees in the circumstances of the Claimant that they are obliged to take a break not later than 6 hours after commencing work.

However the Court is satisfied that the within complaint is not well-founded. The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
6th September, 2013.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.