DWT1484

Background

The National Ambulance Service operates an emergency pre hospital care service within the state. The Complainant is employed to work in the service on 585 hour roster spread over a fifteen week period. The shifts he works are as follows

8.00 am to 8.00 pm

8.00 pm to 8.00 am

10.00 am to 6.00 pm x 1 week

9.00 am to 5.00 pm x 1 week

The roster provides for the following breaks

A 15 minute break in the first four hours of the shift

A 30 minute break in the second four hours of the shift

A 15 minute break in the last four hours of the shift.

The nature of the emergency service provided by the Respondent results in circumstances where it is not possible for the claimant to avail of the breaks and rest periods set out in the Act. The Claimant however asserts that he is not provided with compensatory rest periods as required by section 6(2) of the Act. The Respondent denies the alleged infringements of the Act.

The Complainant’s Case

Section 11

The Complainant states that the exigencies of his job require him to work beyond the end of his rostered shift. He argues that when this occurs he should not, in accordance with Section 11 of the Act, be required to commence his next shift without the benefit of a break of 11 hours. He argues that the guidelines under which he works do not afford him such a rest period. He argues that he does not become entitled to such a beak until he overruns his normal finish time by 3 hours. On any other occasion he is required to report for work as rostered without the benefit of such a rest period.

He identifies five occasions on which he states he was not permitted a rest period of 11 hours between shifts. Three of them however occurred after the date on which he filed his complaint with the Rights Commissioner. They therefore cannot be considered as part of that complaint. The two remaining complaints refer to the 7th September 2012 and the 30^thOctober 2012.

7th September 2012

The complainant states that on that night he finished a rostered 8 am to 8 pm shift at 9.30 pm. He states that he contacted his control centre to advise it he was taking 11 hours equivalent compensatory rest as he had done, without controversy, in the past. He states that this was acknowledged by the Controller without comment and he proceeded to take the rest period as notified. He states that he subsequently received a phone call from the Operations Resource Manager in which he was told he had no entitlement to take such a compensatory rest period unless his shift had over ran by 3 hours and then only with the sanction of a responsible officer. On the 12th September he received a letter from the National Ambulance Service setting out the policy on such rest periods. That letter contained threats of disciplinary sanction should he in future breach the policy on this matter.

30th October 2012

On that date the Complainant finished work at 21.50 hours and was scheduled to report to work the following morning at 8.00 am. In his initial submission he states that he notified his management that he was not feeling well and this caused him to report sick the following morning. In a subsequent submission he states that he was refused an 11 hour break between those shifts. He states that he was threatened with disciplinary action if he did not report for work at his scheduled start time. He states that after such a long day’s work he felt ill and took sick leave the following day. In the interim however the Controller had rang to advise him that senior management required him to attend work at his normal start time the following morning in line with the Service’s policy on compensatory rest periods.

He argues that the Respondent afforded him no compensatory rest period on any of those occasions thereby infringing section 11 as modified by section 6(2) of the Act.

Respondent’s Position

The Respondent argues that the nature of the service it provides renders it impossible for it to determine the precise finish time of a shift. It argues that the Act makes special provision for emergency services and that it acts in accordance with those provisions.

It argues that it provides the Complainant with compensatory rest periods when it cannot afford him an 11 hour rest period between consecutive shifts.

It refers to the LRC Code of Practice in relation to compensatory rest periods and argues that the station in which the Complainant is based has several rest rooms, entertainment including multi-channel TV, recreational/exercise equipment, catering and other rest facilities available for staff. It further argues that the Complainant can avail of HSE staff canteen facilities in all other hospitals and Community based locations.

It further argues that where the shift over runs by 3 or more hours the guidelines in place provide for the Claimant to be afforded an extended rest period to ensure that his need for rest and relaxation is not compromised.

On that basis it argues it makes adequate provision for compensatory rest for the Complainant.

Findings of the Court

Section 11 of the Act states

11.—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

The facts of the case are not in dispute. The Complainant has identified two occasions on which he alleges the Respondent infringed section 11 of the Act. However the complainant told the Court that he took an 11 hour break before commencing work on the 8th September 2012. Accordingly no infringement of the Act occurred on that date. He further told the Court that he took sick leave immediately after the over run on the shift he worked on the 30^thOctober 2012. Accordingly no infringement of the Act could have occurred on that date.

Nevertheless the Court notes that the guidelines that are in force in the National Ambulance Service regarding compensatory rest periods states state

“Accordingly, the shortening of an 11-hour rest period because of an emergency/urgent call to anywhere at or near the end of a shift, does not automatically confer an entitlement to any defined rest period. In such circumstances, the crew are expected to report on time for their next shift.”

It goes on to state

In relation to Health and Safety concerns that may arise where there is a significant (3 hours or more) reduction of any rest period, then common sense applies.”

The Court notes that the Respondent relies on this policy to justify its requirement that staff report for work at their scheduled shift commencement time despite the absence of an 11 hour break between shifts.

The Court takes the view that such a standing instruction is not permitted under the Act. The Complainant is entitled to an 11 hour break between shifts except where, for objective reasons, such a break is not possible.

Objective reasons must be assessed in the context of each individual circumstance that arises and cannot be dealt with by way of a standing instruction in the nature set out in the guidelines quoted above. The Act places an obligation on the Respondent to provide the Complainant with a break of 11 hours between shifts and where it fails to do so to justify it failure on objective grounds on each and every occasion in the context of the circumstances then prevailing.

Inconvenience to rosters or costs to the Service do not amount to objective justification. The entitlement to an 11 hour break is a fundamental right in EU law and any departure from it must be justified in the context of the individual breach. A standing order does not meet that requirement.

Determination

The Court orders the Respondent to bring its policy into line with the terms of the Act in respect of the curtailment of an entitlement to an 11 hour break between consecutive shifts.

Section 12

The Complainant states that he was not afforded breaks consistent with Section 12 of the Act on 29 November 2012, 14 January 2013, 15 January 2013 and 16 January 2013. He states that while he was in the base he was at all times subject to emergency call out at 90 second notice. He further submits that he was required to attend to administrative and supervisory duties and was not in a position to avail of a rest period on any of those days. Duties and was not in a position to avail of a rest period on any of those days.

The Respondent argues that the Complainant had ample time over the course of the day to schedule a break. It refers to the work he carried out on those days and argues that he was at base for a sufficiently extended period of time to so do.

Findings of the Court

Section 12 of the Act states

12.—(1)An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2)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).

(3)The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee undersubsection (2)shall be more than 30 minutes (but not more than 1 hour).

(4)A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained insubsection (1) or (2).

The Minister exempted ambulance services from the strict provisions of Section 12 of the Act. However the exemption is not absolute. The Statutory Instrument places an obligation on an employer to provide a worker with equivalent compensatory breaks where the provision of Section 12 cannot be complied with.

The net point made by the Complainant is that he is at all times on 90 second notice of a call out. He argues that he is entitled to a break period during which he cannot be called out to respond to an emergency.

The Court does not accept that argument. In the normal course of events a break consists of a free period of time the duration of which is known to the worker before the break commences. However in an emergency service such as this it would be disproportionate to impose such a condition in such an absolute manner. What the Court must weigh is whether the duration and frequency of call outs is such that a worker is prevented from availing of such breaks during working hours. In this case the Court has examined the records and after making allowances for the criticisms of those records put forward by the Complainant, finds that he had adequate opportunity to take breaks from work in the course of each of those days. He was on each occasion involved in administrative work at the ambulance base and could have scheduled time to take a break while engaged on those tasks.

Accordingly the Court finds that the complaint is not well founded and determines accordingly.

Signed on behalf of the Labour Court



Brendan Hayes
CO'R______________________
23rd September, 2014Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.