Complainant

Respondent

Anonymised Parties

A security guard

A security provider

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-00014739-001

03/10/2017

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

CA-00014739-002

03/10/2017

The complainant worked for the respondent between the 6th June 2014 and the 17th July 2017. He asserts that there were breaches of the Organisation of Working Time Act regarding daily and weekly rest periods; the respondent denies the claims.

The complainant outlined that he could raise breaches of the Organisation of Working Time Act back to 2015. He had not thought of the second set of issues addressed in this adjudication when he submitted the first set of forms. He had also referred another set of complaints subject to CA-00017450.

In respect of daily rest breaks, the complainant said that on the 8th September 2016, he worked in a named town from 1pm to 9pm and then drove to the control room (about 22 kilometres away) to work from 9.30pm to 6am. On the 7th July 2016, he started in the same facility at 1pm and finished at 9pm, before starting in the control room at 9.30pm, finishing at 6am. On the 10th July 2016, the complainant started at 12 noon and worked to 6pm in the town and was supposed to start at 6pm in the control room. He finished at 6am the following day. On the 8th June 2016, the complainant started at 6pm and finished at 6am and then went to the town at 1pm and then to the control room at 6pm. He referred to text messages from a named member of management. On the 23rd May 2016, the complainant worked at the control room between 6pm to 6am and then at a named site between 1pm and 9pm. On Sunday 29th May 2016, he worked at another site between 12 noon to 6pm and then in the control room from 7pm to 6am.

In respect of weekly rest breaks, the complainant outlined that between the 12th and 20th February 2017, he worked nine days in a row. Between the 28th December 2016 and the 2nd January 2017, he worked between 10am and 9pm, six days in a row. In the week of the 6th February 2017, he worked Monday, Thursday, Friday (doing 9am to 9pm and 10pm to 3am) and on Sunday. In the week of the 20th February 2017, the complainant had Tuesday and Wednesday off.

The complainant said that a named member of management was in charge of doing the rotas. The complainant had raised this with senior managers (present at the adjudication), who told him he had to work, even if he was sick. He raised the specific issue of the back to back shifts. He had spoken to the respondent about excessive hours but they were not happy. He included these issues in the second set of complaints as he had not known his rights.

The respondent referred to the previous complaints referred by the complainant that had been dealt with at an adjudication in November 2017. It referred to the requirement for the complainant to present a stateable case of breaches of the Act (Nolan Transport v Antanas DWT1117). It submits that per S.I. 21/1998, “any activity of security or surveillance” is exempted from the rest period requirements set out in sections 11, 12 and 13 of the Act. The 2015 and later, the 2017 ERO applied to the complainant’s employment.

Referring to Stasaitis v Noonan Service [2014] IEHC 199, the complainant could avail of compensatory rest arrangements, for example better physical conditions. Referring to the Code of Practice on Compensatory Rest Periods, the respondent cites “when any variation of the 11 consecutive hours statutory rest is permitted under the Act, the employer should ensure that the health and safety requirements for adequate compensatory rest are sufficient in the circumstances pertaining to that employment. This is equally applicable to the weekly rest provision.” It submits that on every occasion the complainant did not receive a rest period provided in the Act, from which he was exempt, he was afforded rest in compliance with S.I. 21/1998 and compensatory rest in line with the Code of Practice. He was generally rostered for at least two days off each week, generally concurrently. He was paid breaks and had access to canteen facilities.

The respondent submitted that there was no basis to extend time for the complaints. It submitted that the complainant’s employment was within the scope of the Employment Regulation Order. The complainant had full facilities available to him at the control room. There was a back room. Their role was to monitor a business campus and the complainant would be taking over from the named manager. It submitted that on Sundays and at night time, the barrier to the business centre was quiet. The person on duty at the control room could not sleep. The respondent submitted that the complainant was on a standard rota and worked 40 hours. He was off Tuesday to Thursday. Staff might chop and change their rostered days.

The complaints were referred to the Workplace Relations Commission on the 3rd October 2017. Pursuant to section 41(6) of the Workplace Relations Act, a complaint must be made within six months of the date of contravention, extendable, with reasonable cause, for a further six months. By their nature, a contravention of a daily rest period occurs on the day in question and a contravention relating to a weekly rest period occurs at the end of the week in question. The latest contraventions within the six-month period are those from April 2017 to the end of the complainant’s employment in July 2017.

In assessing whether reasonable cause allowed for the extension of the limitation period, I note the well-established principles set out by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425. There must be circumstances that explain and excuse a delay. The complainant referred to overlooking this aspect of his complaint. I find that the complainant has not shown circumstances which explain and excuse the delay, and which allow an extension of time.

The complainant did not advance evidence relating to any contravention from April 2017 to the end of his employment in July 2017. The respondent presented the complainant’s rosters for this period. They do not disclose a breach of the Organisation of Working Time (General Exemptions) Regulations, the Employment Regulation Order or the Code of Practice. It follows that the complaints are not well founded as there is no evidence of a contravention.

CA-00014739-001

This complaint pursuant to the Organisation of Working Time Act regarding hours of work – daily rest break is not well founded as there is no evidence of a contravention within the limitation period provided by section 41(6) of the Workplace Relations Act and applicable to such a complaint.

CA-00014739-002

This complaint pursuant to the Organisation of Working Time Act regarding hours of work – weekly rest break is not well founded as there is no evidence of a contravention within the limitation period provided by section 41(6) of the Workplace Relations Act and applicable to such a complaint.

CA-00014739-001

I find that the complaint pursuant to the Organisation of Working Time Act is not well founded as there is no evidence of a contravention within the limitation period provided by section 41(6) of the Workplace Relations Act and applicable to such a complaint.

CA-00014739-002

I find that the complaint pursuant to the Organisation of Working Time Act is not well founded as there is no evidence of a contravention within the limitation period provided by section 41(6) of the Workplace Relations Act and applicable to such a complaint.

Organisation of Working Time Act

Workplace Relations Act / section 41(6)

Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425