Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019570-001

04/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00019571-001

04/06/2018

The Complainant commenced her employment with the Respondent on 1st July 2016. She is employed as a cleaner. She is paid €10.85 per hour and works 32 hours a week. The Complainant commenced sick leave on 21st May 2018 and remained on sick leave until commencement of her maternity leave on 3rd August 2018. The Complainant was assigned to clean a number of premises during the course of her working day. Typically, she would start work in the same location every day. Having completed her rostered hours at one location she would travel to another location. The Complainant referred two complaints to the Workplace Relations Commission (WRC) on 4th June 2018 alleging that she did not receive payment for her 15 minutes breaks and that she was not paid for traveling time.

The Complainant submits that she is not paid for her 15 minutes break, which she claims she is entitled to. The Complainant submits that there is a note on her timesheet stating that she is entitled to 15 minutes paid break after 4 hours work. Therefore, she claims she should receive payment for that break.

At the hearing the Complainant confirmed that during the work assignment she would stop to eat a sandwich or have a cigarette. The Complainant confirmed also that she would have a cigarette on a regular basis after each job.

The Respondent submits that she is non-Irish national. She confirmed that she was also an employee of the previous owner of the business before taking over as the Complainant’s employer. The Respondent noted that she understands that the ignorance of the law is no excuse but she emphasised that it is a learning process for her and she is committed to rectify any shortcomings.

In respect of the Complainant’s claim that she was not paid for her 15-minutes breaks the Respondent submits that the employees are entitled to a 15-minutes break after 4.5 hours of work and to 30 minutes if working 6 hours or longer. The Respondent clarified that the employees have a roster of clients and hours of work. She pointed out that the 15-minutes break is included in what is marked as scheduled time for a particular client. E.g. if an employee is scheduled to work for a client from 9am to 12 am, it is up to the employee in question to ensure that a 15-minutes break is taken. The Respondent argues that due to the nature of the business it is impossible for her to control whether or not an employee takes a break.

The Complainant alleges that she was not paid for her 15-minutes break. The Complainant did not claim that she did not receive her break entitlements but that no payment was made to her in respect of a 15 minutes break as per a note on her timesheets. The Respondent contended that the employees were made aware of their break entitlements. The Respondent tendered in evidence a sample of work sheet showing the hours worked by the Complainant and the locations at which she performed that work. The Complainant did not dispute the accuracy of the information contained in the document. The Respondent asserted that the Complainant’s scheduled hours of work, as marked on the roster contained provision for the taking of a 15-minutes paid break during working time. However, the Respondent did not tender any evidence in support of that assertion. In addition, the Respondent claimed that the Complainant would have received unpaid breaks as shown on the work sheet.

I find the Complainant’s evidence rather confusing. The Complainant alleged that she did not receive payment for the 15-minutes break. However, the Complainant confirmed at the hearing that she would have stopped during work hours (reckoned for the purpose of the pay) to have a sandwich or a cigarette break. I note that in the correspondence to the WRC dated 1st August 2018 the Complainant states:

“Referring to the breaks that we should get paid, she [the Respondent] decided that we will be getting paid for them but they will be included in the time that we should spend for cleaning on each places…”

In respect of unpaid breaks, the Complainant confirmed that she would take a cigarette break between the assignments and that typically the time allocated for travelling between locations would be in excess of the time required for that purpose. E.g. the Complainant would be allocated one-hour break in circumstance where the travel time would be approximately 10 minutes. Therefore, the period allocated for travelling from one location to another was sufficient to enable to Complainant to take a break, albeit unpaid. The Complainant then went on to state she was not paid for the time required to unload the cleaning equipment. However, she then confirmed that at no stage she was required to do this before her shift commenced.

Section 12 of the Organisation of Working Time Act provides as follows: -

” (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 the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

Having considered the parties’ submissions and the evidence before me I find the Complainant had opportunity to take breaks during the course of her working day. I am satisfied that the Complainant did, in fact, take the breaks she was entitled to. The Organisation of Working Time Act does not provide for payment for breaks. As such a break may be unpaid and as the Complainant could avail of breaks I cannot identify any infringement of the Organisation of Working Time Act.

I declare the complaint not well-founded.

The Complainant submits that she starts work at 6.45am and works at at least 3-5 different locations in the city and in the vicinity. The Complainant submits that she is not paid for travelling from one place of work to another. The Complainant claims that on 24th May 2018 the Respondent did not pay her the amount of €52.50 in that respect. The Complainant referenced the Court of Justice Decision Case C-266/14 in support of her argument.

The Respondent did not dispute the claim. The Respondent submits that the Complainant raised the issue with her at the end of May 2018 and the Respondent asked for some time to review the matter. The Respondent noted that the Complainant was aware that at the time the Respondent was travelling abroad for her son’s urgent surgery. Following her return the Respondent has already received the WRC notification of the complaint. The Respondent submits that the travel time payment was introduced as of 1st June 2018. The Respondent noted that the business was inspected by the WRC Inspector and she has since implemented the correct payment for travelling time. The Respondent submitted that on average travel time amounts to 1.5 hours a week.

It is not in dispute that the Respondent did not pay her employees for travelling time until 1st June 2018. The Complainant raised the matter with the Respondent in the end of May. The Respondent obliged to address the matter after her return from abroad where she had a scheduled surgery for her ill son. In the meantime, the Complainant referred her complaint to the WRC. Immediately after her return the Respondent addressed the matter and, as of 1st June 2018 all employees are paid for travelling between the sites. It was not disputed that no arrears have been paid to the Complainant who was on sick leave at the time. The Complainant’s assignments are primarily located in the city centre, in the range of 10 minutes’ drive from one another according an online route planner. The Complainant resides some 4 km and some 10 minutes’ drive according the online route planners from the city centre where she works.

The Complainant argues that she was entitled to be paid for time spent travelling from one location to another. She referenced the Court of Justice of the European Union Decision C-266/14 Federación de Servicios Privados del sindicato Comisiones obrerasv Tyco Integrated Security SL, Tyco Integrated Fire and Security Corporation Servicios SA in support of their argument.

The “Tyco” decision concerned a Spanish company who at one time had regional offices from which its employees worked from. However, “Tyco” closed its regional offices in 2011 and attached all its employees to the central office in Madrid. The employees continued to travel between their homes and their first and last client sometimes travelling up to 100 km daily. The same employees were also required to travel once a week to the offices of a transport logistics company near their homes to pick up equipment, spare parts and materials required to carry out their jobs. The employees concerned were notified on the eve of their working day the task list for the following day.

A complaint came before the CJEU for a decision as to whether the time spent by the employees on daily travel between their homes and the premises of their first and last customer should be designated as working time by their employer. A Decision was issued by the CJEU on 10th September 2015 and it found as follows:

“Point (1) of Article 2 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.”

The Labour Court in DWT1677 Noonan Services v Lilita Abzinova noted that

“…time spent travelling to and from work at the start and end of the working day is not normally considered working time. There are circumstances where such travel may become working time. The CJEU has set out one such occasion in the Tyco case referred to above. However the circumstances between that case and this are not at all similar. In that case the complainant had no fixed base as it had been closed for efficiency reasons by Tyco. Accordingly the complainant, whose work required him to travel to customer sites to carry out work as and when required, commenced work as soon as he left his home to travel to his first customer each day. Likewise he travelled home after he finished with his final customer. The distances he travelled were variable but quite extensive. Accordingly he had no certainty regarding his start or finish time as he was not finished work until he returned to his base which was his home.”

In the instant case, which closely resembles Noonan, the Complainant had a regular roster of sites and regular shifts. She normally started her work between 6.30-7am at the same location in the city centre. She then travelled to another 2-3 fixed locations in the city centre, normally within 10 minutes’ drive. She then made her way home. In essence therefore, she commenced work in the city centre and finished work in the city centre.

Only on a rare occasion, the Complainant would be required to travel to a location some 18 minutes away from the city centre (as per an online route planner).

That work pattern is markedly different from that which applied in the Tyco case. Accordingly, following the Labour Court’s line of reasoning I do not consider the Tyco decision relevant to the instant case.

However, the Labour Court in it’s determination DWT1160 in ISS Ireland Ltd v Petrova found that time spent travelling between locations in a working day should be counted as working time for the purposes of the Organisation of Working Time Act, 1997. The Court found that the time spent at each location, the starting and the finishing point of each journey undertaken and the time allocated for travelling between each of the locations was designated by the respondent. It is time spent travelling in order to undertake the work of the employer and is effectively time that is under its control.

In the instant case the Respondent assigns the Complainant to specified locations at specified times, therefore the time spent by the Complainant in travelling between each of the designated sites must be counted as working time. It was not disputed that time spent travelling between locations was not remunerated. The Respondent confirmed that it was rectified as of 1st June 2018.

In that regard, the Complainant sough a payment of the amount of €52.50 which was due to her on 24th May 2018. The Complainant was unclear as to how did she arrived with this figure and noted that her husband calculated the underpayment. When asked by the Adjudication Officer the Complainant’s husband stated that he summed up all unpaid time between the locations, which he believed the Complainant was entitled to be paid for in its entirety, during the week payment for which should be made on 24th May 2018. The reason for selecting this particular week is unclear. The Respondent argued that at some instances the break between the assignments was up to 1 hour. However, the travel time between the locations was, in fact, in the range of 10 minutes. The Respondent pointed out that, following the implementation of the correct payment for travel time in June 2018 employees are paid on average 1.5 hours travel time a week. The Complainant did not dispute that.

Having considered the evidence available to me and the parties’ submissions I find that the time spent by the Complainant travelling, which is wholly and exclusively undertaken in the performance of her contractual obligation of her employment, and where the commencement and the finishing point is determined by the Respondent, must be regarded as working time.

The Complainant claims that she was due €52.20 in that regard. The Complainant submitted the referral form to the WRC on 4th June 2018. Therefore, the cognisable period for the purpose of this claim is from 5th December 2017 to 4th June 2018. The Complainant was on sick leave from 21st May 2018 and subsequently on maternity leave from 3rd August 2018. Consequently, the Complainant worked for some 24 weeks between 5th December 2017 and 21st May 2018. Taking into consideration the Respondent’s evidence I find that the Complainant would have spent, on average 1.5 hour a week travelling.

I find that the complaint made pursuant to the Payment of Wages Act is well founded and the Respondent shall pay to the Complainant redress of €390.60 (24 weeks x 1.5 hours x €10.85).

Travel time- paid breaks- TYCO