ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000682

Complaint for Resolution:

Date of Adjudication Hearing: 19/07/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent raised the issue of the complainant’s description of his complaint on the complaint form. Specifically he stated he was not provided with weekly rest periods. Then further on the form he stated he did not receive lunch or tea breaks.   The statements are at odds and in any event, both are refuted. In relation to the provision of breaks, it is submitted that the claim can only relate to any alleged complaint which occurred in the six months prior to making the claim i.e. from 20^th May 2015 onwards to 19^th November 2015. Notwithstanding this, the background to the substantive issue is as follows:

The complainant is a permanent employee since 11^th March 2011, having previously worked for the Council in various roles since 1996.   His hours of work are

-          08.30 to 17.00 Tuesday to Friday

-          08.30 to 16.00 Saturdays

The number of rostered hours comprise a total of 41.5 hours, thereby building in 2.5 hours (one half hour per day) for lunch with paid breaks being provided within normal rostered time also. The manner in which his breaks are taken is flexible to allow for the nature of his duties.   It is the Council’s position that the complainant’s point is now ‘moot’ and relies on the Labour Court Determination No HSD134 Wicklow County Council and Mr John Dunphy in support of the position of ‘mootness’.   It is also the Council’s position that Section 6 of the Act provides for compensatory rest periods where it was not able to set down exact rest periods

The Council refers to the High Court case of Stasaitis v Noonan Service Group Ltd & Anor [2014] IEHC 199 which concerns a security guard confined to his hut for the duration of his working hours and in which the High Court found that the (Labour) court was entitled to hold that the arrangements put in place whereby the appellant could obtain rest during periods of inactivity at work.   It is submitted that in this instant case, the complainant had access to facilities and it puts the case four square with that case.

Decision:

The date of receipt of this complaint is 19^th November 2015. The cognisable period therefore is from 20^th May 2015 to 22^nd October 2015 (when relief was provided). The complainant outlined his claim in the narrative of his complaint form and I deem it properly before me that he complains that section 12 of the Act has been breached by the respondent.

Section 12 of the Act provides:

“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 a break of at least 30 minutes; such a break may include the break referred to in subsection (1)”.

The Act also provides that where an employer does not provide records the burden of proof that the Act has been complied with lies with the employer.

I accept the complainant’s evidence that he was not in a position to take breaks in accordance with section 12. I find that the nature of the complainant’s employment is not exempt under the requirements of the Organisation of Working Time (General Exemptions) Regulations 1998.

I note that ‘relief’ began to be provided from 22^nd October 2015. I note the respondent’s submission that the point is now ‘moot’ now that a second staff member has been assigned to the centre.     However, because the complainant was not given the provisions of section 12 for the cognisable period outlined, I declare his complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation which is fair and reasonable in all the circumstances of the case.

Dated:   8^th September 2016