FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NOONAN SERVICES GROUP LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD) - AND - JOHN LYONS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No r-157762-wt-15/RG.
BACKGROUND:
2. The Worker appealed the Adjudication Officer’s Decision to the Labour Court on the 1st March 2016 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 22nd April 2016. The following is the Determination of the Court.
DETERMINATION:
Mr John Lyons brought a complaint before an Adjudication Officer pursuant to the Organisation of Working Time Act 1997 (the Act) alleging a breach by his employer Noonan Services Group Limited of Section 12 of the Act.The Adjudication Officer decided that his complaint was not well founded. Mr Lyonsappealed this Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Lyons is referred to as "the Complainant" and Noonan Services Group Limited is referred to as "the Respondent". The Complainant submitted a claim under the date to the workplace relations Commission on 9th July 2015.
Background
The Complainant has been employed with the Respondent since October 1995. He has been employed as a Security Supervisor in many of the Respondent’s sites and during the cognisable period covered by the claim (10thJanuary 2015 to 9thJuly 2015) was employed as a Security Supervisor on the Coca Cola site in Ballycoolin, Dublin 11.
Evidence
Evidence was given to the Court under oath by the Complainant and by Ms Ann Halligan, Operations Manager, on behalf of the Respondent.
Summary of the Complainant's Case
Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted that the Complainant did not receive his breaks in accordance with Section 12 of the Act.
Mr Grogan disputed the Respondent’s contention that it was encompassed by the exemption provided in the Organisation of Working Time (General Exemptions) Regulations 1998 (S.I. 21 of 1998) (the Regulations) on the basis that the Complainant was required to carry out additional duties, not connected to security, which brought him outside of the exemptions.
In his evidence to the Court the Complainant said that he worked a ten hour shift, from 7.00am to 5.00pm Monday to Friday. He said that while he was entitled to a fifteen minute early break and a one hour lunch break on many occasions he was unable to avail of them as he was interrupted by people seeking to gain access to the site.
The Complainant said that in addition to his security duties at the security gate, he carried out other duties, e.g. cutting the grass, weeding and filling drinks coolers.
Summary of the Respondent’s Position
Mr John Barry, Management Support Services (Ireland) Limited, on behalf of the Respondent submitted that the Company was exempted from the provisions of the Organisation of Working Time Act, 1997, by virtue of S.I. 21 of 1998as the Complainant was engaged wholly or mainly in duties of a security or surveillance nature, to protect the site, that required his continuous presence. Mr Barry stated that the Complainant was paid for all hours of his shift and accordingly was required to be on site for all hours and to take his breaks during times of inactivity. On that basis he submitted that the Complainant was in a position to take compensatory rest where it was not possible to avail of his break entitlements as provided for under Section 12 of the Act.
Ms Halligan in her evidence furnished a copy of a document entitled “Site Details”, specific to the Coca Cola Ballycoolin site, which specified that security officers should take their break at quiet times and if interrupted should then extend their break to allow for the time taken out. She said that the Complainant was a very competent and experienced Security Supervisor who was familiar with the entitlements to breaks. She trusted him to manage his breaks and he never made a complaint or brought the issue to her attention.
Conclusions of the Court
The Court is satisfied that the activity in which the Complainant was engaged comes within the ambit of paragraph 2 of the Regulations. That being so,prima facie,the Complainant’s employment came within the exemption at Regulation 3 from the requirements of sections 11,12, 13 and 16 of the Act.
The point made 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”
Determination
In these circumstances the Court is satisfied that Regulation 5 of the Regulations was complied with in relation to the Complainant. The Court is further satisfied that the Regulation 3 of the Regulations was operative in this case and that the Complainant’s employment came within the exemption provided by that Regulation.
However the Court finds 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
Caroline Jenkinson
CR______________________
3rd May, 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.