DWT1556

The Complainant submitted a complaint to the Rights Commissioner under s27 of the Organisation of Working Time Act 1997 (the Act). In it he stated that as he was not allocated a specific break time the Respondent infringed section 12 of the Act. He further complained that he did not have access to adequate toilet facilities during the working day.

The Rights Commissioner considered the complaints and issued his decision on 22 April 2015. In it he decided that 1) the provision of toilet facilities is not for consideration under this Act and 2) On the balance of probability … he has adequate opportunities to take breaks.

On that basis he found against the Complainant. The Complainant appealed against that decision to this Court on 27 April 2015. The case came before the Court on 2 June 2016.

At the hearing the Complainant repeated the position outlined above.

The Respondent stated that the Complainant was a static security guard and that he had ample opportunity to take his breaks during his shifts. He argued that when working the day shift the Complainant was required to record the movement of cattle into and of meat out of the plant. He stated that this amounts to between 30 and 45 truck movements over a twelve hour period. He argued that at night there were little or no truck movements. On average each truck movement could be processed in a matter of minutes.

He argued that taken together the Complainant was in a position to schedule his own breaks and to take toilet breaks whenever the need arose. He stated that the Claimant could put a notice on the security hut to say he would be back in ten minutes and proceed to take a comfort break whenever the need arose.

The Complainant agreed that he could schedule his own breaks but argued that he could not allocate a definite time or duration to do so that would be free from interruption. He further stated that while he could leave the security hut to take comfort breaks the people affected would be none too pleased for the delay. Instead he sought the positioning of a portable toilet in a location proximate to the security hut.

The Law

Section 12 of the Act states

• 
  (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 in subsection (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 under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

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

• 2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.

However the exemption is not absolute. Section 3(3) states

(3) The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her

Regulation 4 states

4.If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break

Regulation 5 states

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

(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.

The Court considered the relevance of the exceptions as they apply to static security guards in

Case No DWT13212

That was a case in which a static security guard claimed that he did not have an allocated break time during which he would not be interrupted. He argued that this amounted to an infringement of Section 12 of the Act.

In considering the matter the Court stated

"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".

Conclusions of the Court

The Court finds that the Complainant is a static guard and comes within the excepted groups within the meaning of Section 3 of Statutory Instrument No 29/1998. The Court must therefore decide if the Respondent has met the conditions set out therein so as to be in a position to rely on Section 3.

The Court notes that as in AD13212 the Complainant was supplied with a security hut that contained cooking facilities. The Court noted that the work in which he was engaged required him to monitor the movement of a number of trucks over the course of a shift. The Court notes that the total amount of time he was engaged in that activity is relatively small when considered in the context of the 12 hour shifts he works. The Court is also satisfied that the Complainant was told he could avail of breaks while at work.

The Court further notes that the Complainant accepts that he was told by the Respondent that he could close the office to avail of comfort breaks as required.

Finally the Court notes that the Complainant worked for the Respondent for 4 years during which time he raised no issues regarding access to breaks.

In the circumstances therefore the Court finds that, as a matter of probability, the claimant could and did avail of his breaks. The Court further finds that the issue of the location of the toilet is not one that is properly before it. On the basis that one purpose of a break is to avail of toilet facilities the Court reviewed the matter further in that context. Having considered the evidence before it and in particular the evidence of the Complainant the Court finds that he had reasonable access to toilet breaks and was advised accordingly. His decision not to close the security hut to avail of such breaks was not brought about through the behaviour of either, the Respondent, the client or the visitors to the plant. It was the result of his own view of what he wished to achieve by so proceeding. The Court finds no merit in this aspect of the complaint.

Finally the Court cautions the employer that it must be mindful of the circumstances of workers in circumstances such as that in which the Complainant works. This places a clear onus on the employer to ensure that the circumstances are such that a worker in this situation can as a matter of probability avail of a break so as to protect his or her safety or health at work. It is not sufficient that one is provided with a hut and some cooking facilities but none others and cannot in fact avail of a break as set out in the Act. Such an arrangement would not meet the requirements of the Statutory Instrument and would amount to an infringement of the Act. In this case however the Court is satisfied from the evidence adduced that the Complainant did have access to facilities and an opportunity to take a break to protect his health in the course of the shifts he worked.

Determination.

The Court finds the appeal is not well founded. The decision of the Rights Commissioner is upheld. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
2nd July 2015______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.