FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : A GOVERNMENT DEPARTMENT (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - A WORKER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decisions R-137948-Wt-13 & R-137950-Wt-13.
BACKGROUND:
2. The Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 14th July, 2014. The Court heard the appeal on the 26th August, 2014, the earliest date suitable to the parties.
DETERMINATION:
The Complainant in this case was employed by the Respondent as a Clerical Officer from 10 December 2012 until 26 July 2013. On 24 September 2013 she submitted a complaint to the Rights Commissioner under Section 27 of the Organisation of Working Time Act 1997. She complained that the Respondent infringed sections 12 and 17 of the Act on a number of identified occasions during the course of her employment. The Rights Commissioner decided that the Complaint was not well founded. She appealed against that decision to this Court. The case came on for hearing on 26 August 2014.
Complainant’s Case
Section 12
The Complainant states that, on 5 identified occasions in the relevant time period, pressure of work caused her to curtail her lunch break to less than 30 minutes contrary to section 12 of the Act. She argues that she was operating a flexitime system that recorded the length of her lunch break each day. She argues that she recorded her time on the system and that it produced a report for management that flagged those days on which her lunch break was curtailed. She argues that the system is set up to withhold pay for a period of 30 minutes each day. She submits that when she returned early from lunch management deducted the payment but took no steps to establish the reasons for her early return or to advise her that the taking of a 30 minute lunch break was an entitlement that could and would not be compromised. She finally argues that it took no steps to ensure that she was in a position to avail of the lunch break to which she was entitled.
The Respondent argues that the Complainant was advised during her induction into the Department that she would be operating a flexi time system and that a 30 minute lunch break was mandatory and could not be curtailed. It argues that the flexi time system is structured to ensure that no payment is made for the mandatory 30 minute lunch break. It stated that this was designed to ensure that staff could not benefit either financially or by way of accumulating banked hours from reducing the lunch break to less than 30 minutes. It argued that this was evidence of a culture of compliance with the Act and was designed to ensure that all staff took at least 30 minutes break each day.
Findings of the Court
Section 12 (2) of the Act states
An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to insubsection (1).
The net question for the Court in this case is whether the Respondent required the Complainant “to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes”. Having reviewed the information supplied to the Court and the submissions of both parties to this complaint, the Court finds that on any day on which the Respondent required the Complainant to work for a period of more than 6 hours it allowed her a break of at least 30 minutes in accordance with section 12(2) of the Act. The Respondent operates a flexitime system that allows staff to choose their working hours outside of core hours during which they must be in attendance at work. The system operates on an electronic time recording system that is programmed to remove any incentive to staff to act contrary to Section 12(2) of the Act. The system automatically disregards 30 minutes each day for pay and accumulated hours purposes thereby incentivising staff to avail no less than 30 minutes break each day. In this case the Complainant chose to return to work minutes early on 5 occasions in a six month period. The system identified the infringements and operated as programmed.
The Complainant argues that the Respondent was aware of the breaches and should have taken steps to compel the Complainant to comply with the terms of the Act. It argues that in failing to do so it permitted a breach and is consequently culpable.
The Court accepts that in circumstances where a worker is persistently infringing the 30 minute mandatory break imposed by the Respondent on all staff it would give rise to a requirement to take steps to ensure compliance with the Act. However the question of proportion arises in this case. The Complainant infringed the 30 minute break time on 5 occasions in 6 months. On each occasion the infringement was of a very short duration. The system penalised the Complainant for so doing. In those circumstances the Court finds that the systematic response of the Respondent in this case was proportionate to the infringement that the Complainant committed.
The Court further notes that the Complainant offered no evidence of an oppressive culture within the Department that ran parallel to the flexitime system. The Complainant noted that on occasions she did not finish with a client until after 1.30 pm but was nevertheless required to open again to the public at 2.00 pm. However she offered no evidence that she was on any occasion instructed to curtail her 30 minute break to so do. Furthermore on a number of occasions she returned to work after 2.00 pm and her solicitor conformed to the Court that she was subject to no criticism for so doing.
Determination
The Court determines that the Complaint is not well founded. The Court affirms the decision of the Rights Commissioner.
Section 17
The Complainant stated that she was required to work additional hours without notification as required by section 17 of the Act. She identified an irregular pattern of her finish time as evidence of the additional hours.
The Respondent argues that the Complainant operated a flexitime system and determined her own start and finish times outside the core hours set out in the scheme.
Findings of the Court
Section 17 of the Act states
(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as "additional hours"), the employer shall notify the employee, subject tosubsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.
In this case the Respondent operates a flexitime system. It contains core hours during which an employee must be present at their place of work. They are 10 am to 12.00 noon each morning and and 3pm to 4 pm each afternoon. Outside of those core hours an employee may work up their additional hours at any time between the hours of 8 am and 7 pm.
In this case the Complainant was present during the core hours and made up the balance of her contracted hours at her own discretion within the terms of the scheme. Such an arrangement is more favourable to the Complainant than the requirements of the Act. Accordingly the Court finds no infringement of Section 17 of the Act.
Determination
The Court determines that the Complaint is not well founded. The Court affirms the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
16th September 2014______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.