Complainant

Respondent

Anonymised Parties

An Engineer

A limited Company

Representatives

Derek Beegan Connect Trade Union

Judy McNamara IBEC

Act

Complaint/Dispute 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-00021943-001

19/09/2018

The respondent provides 24 hours on site support to all of its’ customers. This is achieved by providing an out of hours on - call service form 6pm to 8am and over 24hrs at weekends and bank holidays. Engineers will first use phone and remote support but if that fails they are expected to call out to the site. On - call is voluntary and not all engineers take part it in. Engineers are not directly involved in the ‘provision of services relating to the reception, treatment or care of persons in the hospitals. The statutory exemptions referred to by the respondents are not relevant in the circumstances of this case and do not apply.

Out of hours on- call services is provided from 6pm to 8am the next day and over a twenty four hour period at weekends and bank holidays. A customer seeking support during these hours is transferred to a third party company, who then contacts one of the engineers depending on the equipment that needs attention. The engineer’s sleep/ rest time may be disturbed by firstly taking a call and then should the need arise he/she will travel to the site where the equipment is located and then is generally required to work from 9am the following morning. The number of weeks individual engineers are scheduled to work varies greatly. Approximately one third of the engineers do not participate in the on- call schedule. The complainant does not participate.

The specific breaches of the Act as outlined by the respondent and not the complainant are as follows:

On the 3rd/4th April, 2018, the complainant received 10 hours and 40 minutes rest as he arrived home on 3rd April, 2018 at 10.10pm and started to work again, from home, the following morning at 8.50a.m.

On the 24th/ 25th April, 2018 the complainant received 10 hours 45 minutes rest as he has scheduled a conference call with colleagues.

The Complainant, who is employed by the Respondent as a Customer Service Engineer and who is an employee representative for employees of the Respondent, has made a claim pursuant to s.11 of the 1997 Act alleging that he did not get his daily rest periods. However, the Complainant has made a generalised claim only and has failed to particularise his complaint. Moreover, the Complainant has failed to identify any specific instances of alleged breaches and has failed to specify any dates on which alleged breaches are claimed to have occurred. It is submitted that he has therefore failed to meet the evidential burden on him to adduce evidence necessary to support a stateable case of non-compliance with a relevant provision of the 1997 Act with sufficient particularity to allow the Respondent to know the nature of the complaint against it.

THE SUBSTANTIVE CLAIM

Without prejudice to foregoing and in particular to the Respondent’s position that the Complainant should not be permitted to proceed given his failure to particularise his claim whatsoever, the Respondent’s defence to the claim in so far as this can made at this stage is set out hereunder.

The Respondent is a provider of high-quality medical technology including Diagnostic Imaging Systems to healthcare providers worldwide in the areas of imaging, diagnostics and advanced therapies.

The Respondent’s customer Service Engineers provide 24 hour emergency support to its customers. This is provided on the basis that a failure or a delay in dealing with a service issue in respect to the Respondent’s technology could result in a patient not being diagnosed within time and/or a delay in a patient’s treatment with possible consequential adverse effects arising as a result of the delay. The type of urgent issue that arises out of hours includes for example a non-functioning CT scanner in an accident and emergency department in circumstances where good operating practice for a trauma centre would be to put the accident and emergency department into “Trauma Bypass” mode if there were no operating CT scanner. This means that the hospital in question would be closed to trauma patients who would then have to be brought to a different hospital regardless of its proximity to the accident. In this respect, the document “A Trauma System for Ireland” which is a report of the trauma steering group, provides the recommended designation criteria for an accident and emergency department and confirms that there should be CT scanner with the necessary support to allow immediate availability and that there should also be access to MRI on a 24 basis. It is also the case that the provision of 24 hour emergency support is starting to become a mandatory requirement of the Respondent’s customers and in this respect the recent tender document from Beaumont Hospital confirms that 24 hour support and maintenance is required.

It is the Respondent’s position therefore that the work of the Customer Service Engineers comes within the remit of s.4(2) of the 1997 Act and/or the provisions of the Organisation of Working Time (General Exemptions) Regulations 1998 S.I. 21 of 1998(the “General Exemption Regulations”). This is on the basis that the activity involved is one consisting of periods of work spread out over the day and/or is an activity directly involved in the provision of services relating to the reception, treatment and/or care of persons in a residential institution, hospital or similar establishment.

The Complainant and the Work of a Customer Service Engineer

The Complainant who is employed as a Customer Service Engineer commenced employment with the Respondent on 3rd April 2002. The hours of work state:

“Your standard hours of work are 9.00am to 5.00pm Monday to Friday with a ¾ hour break for lunch. However, you will be required to be flexible and to work additional hours when necessary. Payment for overtime work is governed by the current practice in the firm.”

As a Customer Service Engineer (Engineer) the Complainant is responsible for carrying out daily activities to support and maintain the Respondent’s Diagnostic Imaging Systems as installed in both public and private hospitals in Ireland and Northern Ireland.

As the Engineers do not have a habitual place of work, their hours of work are recorded either from the time they start work from home in the morning or from the time of leaving their house in the morning until either the time they stop work from home in the evening or the time they return home in the evening whichever is applicable.

As per the contract of employment, the normal working hours are from 9.00am to 5.00pm. However, given the use of the Diagnostic Imaging Systems in hospitals that operate outside those hours and mainly on a 24 hour basis, there are occasions when the Engineers are required to work outside of the normal working hours by starting before 9.00am and/or finishing after 5.00pm. This requirement is largely unpredictable.

As stated above, the Engineers also provide 24 hour emergency support. This is provided on a rota system and an additional payment of €310 per week is paid to the Engineer on-call. Of the 31 engineers currently employed by the Respondent, 22 do on-call work. The Complainant does not participate in on-call. An on-site visit is required approximately 25 to 30 times a year and of these only about 6 are on-site visits made between the hours of 10pm and 8am.

On an average working day an Engineer may be either scheduled to carry out planned maintenance at a particular location or be on stand-by waiting for a service call.   Notwithstanding the occasional requirement to provide out of hours and 24 hour emergency support therefore, given the nature of the work – dealing with service and maintenance issues as and when they arise – overall the Engineers actually work approximately 70 per cent of their working hours. This is regularly monitored by the Respondent. If this percentage increased by any significant amount, the Respondent would be required to employ more Engineers.

Exemption from the application of s.11 of the 1997 Act

It is the Respondent’s position that the work of the Engineers is exempt from the provisions of the 1997 Act regarding the application of s.11 of that Act on the basis of s.4(2) of the 1997 Act which provides as follows:

“Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.”

In his complaint form the Complainant rejects the application of s.4(2) on the basis that the contractual hours are from 9.00am to 5.00pm and on-call is an additional task to be provided after the daily work. However, as noted above, the work of Engineers is by its nature spread out throughout the day as it is dependent on a request from a customer for support or maintenance. The Engineers also only actually carry out duties for 70 per cent of their contractual hours which means that they have a reasonable amount of time during their working day when they are not carrying out duties. It is submitted therefore that the exemption at s.4(2) does in fact apply.

It is further and/or in the alternative submitted on behalf of the Respondent that the work of the Engineers comes within the provisions of the General Exemption Regulationsmade pursuant to section 4(3) of the 1997 Act. In particular, the Respondent relies on paragraph 3(b)(i) of the Schedule thereof which provides as follows:

“3(b) An activity falling within a sector of the economy or in the public service the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be, and in particular, any of the following activities –

(i)                  the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment.

In his complaint form the Complainant rejects the application of this exemption on the basis that the Engineers are not “directly” involved in the provision of the services in question. He explains this by stating that on-call is voluntary and for those Engineers taking part, it does not form part of their “main activity.” It is submitted that this argument misunderstands the relevant provisions; it is not necessary to establish that on-call duty is the main activityrather it is necessary to show that the employee to whom the exemption is being applied is “engaged wholly or mainly in carrying on or performing the duties of the activity concerned” as per Regulation 3(2)(a)(i) of the General Exemption Regulations.This therefore clearly relates to the activity in question not the hours during which the activity is performed. It is clear that the Engineers are “wholly or mainly” engaged in the activity of providing maintenance and support in respect to the Respondent’s Diagnostic Imaging Systems and technology. It is further submitted that given the fundamental importance of having functioning imaging systems in hospitals in respect to both the diagnosis and treatment of patients and given the Engineers’ direct role in ensuring these imaging systems are functioning, the work of the Engineer must be viewed as being directly involved in the provision of the service relating to the treatment and/or care of persons in hospitals. If the Engineers did not provide the emergency service in question, this would leave hospitals with essential scanning, diagnostic and treatment equipment that could not be used which in turn would lead to delayed diagnosis and treatment of patients, the timing of which could be absolutely critical.

As the Respondent relies on the provisions of the General Exemption Regulations when on the rare occasions it is not possible to comply with section 11 of the 1997 Act, the Respondent provides equivalent compensatory rest periods as per s.6 of the 1997 Act and Regulation 4 of the General Exemption Regulations.

The Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998 (the “Code”) provides that it is important for compensatory rest to be provided as soon as possible and generally in an adjacent time frame. In this respect example one contained in the Code is the most relevant to the Respondent’s circumstances wherein it applies to an exempted employee who works from 9.00am to 5.30pm in an industry that cannot be interrupted on technical grounds and who works two weeks per month on-call for maintenance work. Where, for example, on a Wednesday night he is called out to perform emergency repair work from 8.30pm to 11.30pm, his entitlement to 11 hours consecutive rest is interrupted. However, prior to the call out he had received 3 hours rest and after the call out he had received 9.5 hours rest. In total therefore, he had received 12.5 hours rest and as a consequence the Code confirms there is no further entitlement to rest as the exemption applies.

It is the Respondent’s practice to give compensatory rest at the start of start of the next day. If this is not feasible because of objective work requirements, the employee will be able to avail of his compensatory rest period at the earliest possible opportunity, for example, by finishing work early on the next day (the day after not being able to avail of the 11 hour rest period or an aggregate of the 11 hour rest period). Whereas until 19th July 2018 this was an informal policy, this has now been formalised and a copy of the Respondent’s Compensatory Rest Policy provides as follows:

“There may be instances where employees cannot avail themselves of 11 hours rest between finishing work and starting again the next working day. There may also be instances where employees performing on-call activities may have their rest periods interrupted and could not, as a result, avail themselves of an aggregate of 11 hours rest. In both of these cases the company will ensure that equivalent compensatory rest is made available to the employee.

If an employee has not been able to avail themselves of the 11 hour rest period, or an aggregate of 11 hours rest as outlined above, or they become aware of a significant risk of not being able to do so in advance, they must contact their line manager at the earliest possible opportunity to inform them of same.

The line manager will then change the employee’s start time to allow them to avail of the rest as outlined above, or if this is not possible for objective reasons, ensure that equivalent compensatory rest is made available to the employee at the earliest possible opportunity afterwards.”

The Respondent has received no complaints from any of its Engineers about the failure to benefit from compensatory rest as per either the informal or the more recent formal procedure. It is also noted that there is no complaint made by the Complainant herein in respect to the failure to abide by the provisions on compensatory rest periods.

It should also be noted that it is the express policy of the Respondent as communicated to the Engineers that the health and safety of staff is paramount in all cases and whenever an Engineer deems himself unfit for work in any case due to fatigue or otherwise, he should inform his line manager of the situation and not undertake any additional duties. This was confirmed to the Engineers in an email of 28th June 2018 from the Respondent’s Head of Service, in the course of the ongoing discussions about the changes to the on-call system and the 11 hour rest period. This policy is in fact availed of by employees and there have been occasions when an Engineer has called his line manager to say that he is too exhausted to drive in which circumstances the Engineer is relieved from duty.

The Complainant’s Hours

The excel file containing the Complainant’s time records for the relevant six-month period prior to the lodging of the claim (i.e. from 20th March 2018 to 19th September 2018) is exhibited. The 11 hour rest period is calculated from when the Engineer finishes his last period of work or travel in a day to when he starts work or travel the next day. On examination of the records it is apparent that the Complainant did not obtain 11 hours rest as per s. 11 on only two occasions:

1. 1. On 3rd/4th April 2018, he received 10 hours and 40 minutes rest as he arrived home on 3rd April 2018 at 10.10pm and started to work again from home the following morning at 8.50am.
   2. On 24th/25th April 2018, he received 10 hours 45 minutes rest as he had scheduled a conference call from 8.00pm to 10.00pm.

In respect to the 3rd/4th April 2018 incident, the Complainant’s time record indicates that on 3rd April 2018 the Complainant left home at midday having had no prior work or travel before midday that day. He then travelled to Limerick University Hospital and assisted another engineer in diagnosing a fault. He arrived home from work that evening at 10.10pm Then on the following morning, he completed two ten-minute tasks from home prior to returning to Limerick University Hospital. The first ten-minute task from 8.50am to 9.00am was recorded by the Complainant almost two weeks later on 17th April 2018 and the second ten minute task from 9.00am to 9.10am was recorded five days later on 9th April 2018. If it were not for these two ten-minute tasks the Complainant would have received his 11 hour rest period.

On 24th/25th April, the Complainant interrupted his 11 hour rest period to engage in a conference call with other colleagues to discuss the on-going consultation regarding the change to the on-call arrangements. This call took place from 8.00pm to 10.00pm. The Complainant has recorded this as “T&C’s Circuit call” in his time log.The Respondent was not responsible for arranging the call or the time of this call nor was the Respondent made aware of it in advance.

The analysis also shows that for the relevant period, the average daily rest period received by the Complainant was 15.5 hours (excluding weekend breaks).

Prior to lodging the claim herein, the Complainant had not complained about alleged breaches of the 1997 Act in respect to his working hours nor had he invoked the internal grievance procedure in respect to same.

This complaint specifically relates to two alleged breaches of Section 11 of the Organisation of Working Time, Act, 1997.

Section 11 “An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

On the 3rd/4th April, 2018, the complainant received 10 hours and 40 minutes rest as he arrived home on 3rd April, 2018 at 10.10pm and started to work again, from home, the following morning at 8.50a.m.

On the 24th/ 25th April, 2018 the complainant received 10 hours 45 minutes rest as he has scheduled a conference call with colleagues. This call was not within the knowledge of the respondent.

The respondent argues that even if there were a breach of the Act, the complainant’s role is exempt from requirement specified in Section 11 on the basis of Section 4(2) of the 1997 act which provides:

Section 4(2) “Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day……”

The complainant rejects the application of Section 4(2) on the basis that the contractual hours are from 9am to 5pm and on call is an additional task to be provided after the daily work. The work of Engineers is by its nature spread out throughout the day as it is dependent on a request from a customer for support or maintenance. The complainant also rejects the exemption applied to his situation on the basis that the service he provides does not relate to the reception, treatment or care of persons in a hospital.

Before I can embark on a decision in relation to the exemption, I must first establish whether or not there has been a breach of the Act. Then and only then can I analysis the factual circumstance relevant to the alleged exemption.

I am not satisfied that the respondent was in breach of the Act on the 24th/25th April due to the fact that the complainant took it upon himself to engage in the conference call which said call was not within the knowledge of the respondent. The only possible breach is from the 3rd/4th April. The complainant did not provide any particulars of this breach nor was he in a position to expand on it when asked. It was the respondent who provided the particulars, from their records. There was no evidence that the complainant was actually required to carry out the two short tasks at the time he did. He made the decision, for reasons not explained during the hearing, to carry out the tasks when he did. The complainant is aware of the act and of the requirement set out in Section 11. If he made the decision himself, with no direction from the respondent, to carry out certain work related tasks 20 minutes before the 11 hours had passed then he cannot alleged that the respondent did not afford him the rest period. It is on that basis that I find that there was no breach of the act. On that basis I do not need to comment on the exemption.

The complaint fails.

The complaint fails.