Complainant

Respondent

Anonymised Parties

A Car Park Attendant

A Carpark Operator

Representatives

Bernadette Thornton SIPTU

Darragh Whelan IBEC

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-00021650-001

07/09/2018

The complainant is employed by the respondent as a car park attendant since March 2012. He is claiming that the respondent is in breach of the Organisation of Working Time Act 1997 regarding the provision of breaks.

The complainant is a car park attendant and is employed by the respondent since March 2012. He said that he was paid one hour break each day and he could leave the site during the break. On the 12th of March 2018 his manager visited the site and handed him a memo explaining that he would be continued to be paid for his break, however, he would not be allowed to leave the site and he would be required to interrupt his break to attend to customers. The complainant disagreed with this change in his working conditions and appealed the proposed change to his terms and conditions of employment. He said that he has worked under protest since then. He is claiming that he is entitled his break as an uninterrupted break as he had since he commenced employment with the company. He is also claiming that he should be able to leave the site during his break.

The complainant attended a grievance meeting on the 19th of July 2018 and the outcome of the meeting determined that was he would be paid for his break, but he was required to remain on site while having his lunch. He appealed this decision, but his grievance about his break was not upheld.

The complainant’s union representative submitted that S.I. 21/1998 does not apply. The exemption does not apply as the complainant enjoyed a paid break from September 2013 until it was changed in March 2018. The claimant wishes to a hold on to what he had, an hour of downtime each day.

The complainant’s contract of employment refers to the employee handbook forming part of the terms and conditions of employment. The handbook states at section 30: (1) each employee is provided a break based on length of the shift being worked, in accordance with the Organisation of Working Time Act. For all employees, each 8-hour shift includes an unpaid one-hour meal break. Also, at (3) it provides: breaks shall should be taken in non-work areas.

It was submitted that the contract also states that any change will be given in writing one week in advance. This did not happen, and the company acknowledged this during the grievance process. The Respondent seems to now have issued a new handbook where the section on breaks as outlined above has been deleted.

The Union submitted that Section 12 of the Act has not been satisfied, that the covering of breaks by another staff member has been withdrawn, that the Complainant was willing to take his breaks at his own expense and the employer has breached his right to an uninterrupted break, which is part of his contract of employment.

It was submitted that the Adjudication Officer’s Decision in the case of A Deputy Manager v A Bookmaker ADJ-00012077 is a relevant in relation to where a complaint in relations to break entitlements was upheld.  

The complainant is alleging a breach of section 12 of the Organisation of Working Time Act and the respondent submits that the Complainant's complaint is misconceived as he is employed in a sector covered by the exceptions in section 12 of the Act and set out in S.I. 21 of 1998.

The respondent operates a number of car parks throughout the city and a number of these sites are staffed by one employee, these are referred to as lone sites. The complainant is employed as a carpark attendant on a lone site. His duties include the cleaning, maintenance, patrolling, opening, closing of the car parks and provision of general assistance to customers of the car park. These responsibilities include managing access and egress from the car park and reporting on any health or safety concerns or unauthorised access to the car park.

As the car park cannot be left unattended, employees on lone sites are required to take their breaks on site. Facilities are provided on site for employees to take their breaks, these include a water cooler, cattle, fridge, toaster and microwave. Employees on lone sites are paid for their breaks.

The respondent operates a Break Interruption Policy for lone workers. The main points of this policy are;

(i)                  all employees are responsible for ensuring that they take a break in agreement with their manager. If an employee cannot take a break or is interrupted on their break there is a procedure to follow: as an example - if an employee is scheduled to have a 30 minute break and after 10 minutes his/ her break is interrupted to attend a customer, then he/ she would resume the break after the interruption has been dealt with and would in this instance have 20 minutes left to take. This would be noted by the employee on the break sheet with the reasons for the interruption.

(ii)                It is the responsibility of an employee to inform their manager in writing on the break sheet why they are not able to take their break or show where the break was interrupted, why is was interrupted and then when it was resumed and completed.

(iii)               if an employee misses their break completely then they should state the reason in writing as soon as possible and no later than one week after the missed rest break and submit to his/her Manager via the break sheet or in the site diary or message book.

It was submitted that it is important for employees complete this process and ensure any break interruptions are reported on the break sheets.

The complainant is employed on a lone site. The policy did not apply to the complainant until 2018 because up to then his breaks were covered by an employee from another site and that employee retired and the rosters were then reduced. However, the complainant was always paid for breaks. The Complainant raised an objection to the requirement that he remained on site during his lunch break. His complaint went through the Grievance Procedures but was not upheld.

Section 12. 0f the Act provides —(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).

Section 4 of the Organisation of Working Time Act provides for Regulation as follows:

(3)” Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16 or 17 any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.”

Section 6 of the Act provides:

6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.

(2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in section 11, 12, or 13 the employer concerned shall—

(a) ensure that the employee has available to himself or herself a rest period or

break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or

(b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5.”

It was submitted that the exemptions referred to above are set out in Statutory Instrument 21/1998 of the Organisation of Working Time (General Exemptions) Regulations, 1998. The complainant is engaged in an activity covered by schedule 2 of this Statutory Instrument.

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.”

The complainant is seeking to rely on ADJ 00012079, a claim by an employee against a book makers shop who was not receiving breaks in accordance with Section 12 of the Act.   It was submitted that the case can be easily distinguished from the instant case as the employee involved in that case was not covered by the exemption set out in S.I. 21/1998.

The complainant is employed as a carpark attendant and the activity he is engaged in falls within the activities exempted under schedule 2 of the Organisation of Working Time Act (General Exemptions Regulations) Statutory Instrument 21, 1998, cited above, in relation to the matter of breaks. Under the exemption, the employer is not obliged to provide breaks within the prescribed time limits as per the Act, provided that the employer provides breaks which are reasonably equivalent.

Regulation 4 provides: “ 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.”

I note that the employer pays the complainant for a 1-hour break and the complainant, who was the only employee on this site, could leave the site for an hour and his break was covered by an employee from another site. However, this employee retired, and the complainant is now required to take his 1-hour break on site. I note that the respondent has a policy in relation to interruptions during breaks which requires employees on lone sites to document interruptions on the break sheet, stating if the full break was taken, and the reason they could not take their full break. Therefore, the respondent has procedures in place regarding breaks.

However, I am satisfied that the complainant’s employment is an exempted employment regarding breaks in accordance with the Statutory Instrument. I find therefore that the complaint is not well founded.

I find that the complaint is not well founded.

Organisation of Working Time Act, S.I. No. 21/1998 Organisation of Working Time (General Exemptions) Regulations, 1998. Exemptions-Car Park Attendant