Complainant

Respondent

Anonymised Parties

Senior House Matron

Secondary School

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-00022540-003

10/10/2018

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

CA-00022540-004

10/10/2018

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

CA-00022540-005

10/10/2018

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

CA-00022540-001

10/10/2018

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

CA-00022540-002

10/10/2018

The Complainant was employed as a Senior House Matron by the Respondent, a day and boarding secondary school, from 19thAugust 2007 to 20th August 2018 when her employment was terminated by way of redundancy. The Complainant was paid a monthly salary of €2,200.

The Complainant submitted a WRC complaint referral on 10th October 2018. It should be noted that the WRC complaint referral form is not a statutory prescribed form. While complainants are encouraged to particularise their complaints on the complaint form, this does not always occur.

The complaint referral form submitted by the Complainant contained two specific complaints relating to breaks and excessive hours. In the narrative on the form, the Complainant made reference to not receiving Sunday premium.

At hearing, it transpired that the complaint relating to breaks actually encompassed three issues – (i) rest breaks, (ii) daily rest breaks, and (iii) weekly rest periods.  

For ease of reference, each complaint has been given its own complaint reference number as follows:

CA-00022540-001   Rest breaks

CA-00022540-002     Excessive hours

CA-00022540-003     Daily rest breaks

CA-00022540-004     Weekly rest periods

CA-00022540-005     Compensation for working on Sunday

Both parties made submissions at the hearing and were afforded to opportunity to make additional submissions following the hearing – the last submission was received on 17th January 2019.

The herein complaint was submitted to the Workplace Relations Commission on 10th October 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 11th April 2018 to 10th October 2018.

However, the Complainant’s employment with the Respondent was terminated on 20th August 2018 and therefore the cognisable period cannot extend beyond that date.

Furthermore, according to the rosters submitted by both parties, the last day the Complainant was rostered for duty in the Respondent’s school was Friday 22nd June 2018. After that date, the school was closed for the summer holidays and the Complainant commenced a period of annual leave.

Taking all of the foregoing into consideration, I find that the cognisable period for the herein complaint is 11th April 2018 to 22nd June 2018.

The Complainant submits that she did not receive rest breaks

The Complainant relied on the following precedent in support of her case –UK Court of Appeal [2004] EWCA Civ 1559 Gallagher & Ors v Alpha Catering Services Ltd.

The Respondent refutes the Complainant’s assertion that she was not given rest breaks.   However, they do acknowledge that hourly breaks were not recorded but suggest that local arrangements were in place to ensure that employees got their breaks.

Moreover, the Respondent submits that in her role as Senior Matron, the Complainant was substantially in control of her own work.

The Respondent has submitted the following precedent in support of their case: Stasaitis v Noonan Services Group Ltd, the High Court 2014 IEHC 199.

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks 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).

Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

The issue at the heart of this referral is whether the Complainant received the breaks to which she is entitled under Section 12 of the Act. The Complainant alleges that she did not receive such breaks.

The Respondent has cited the High Court case Stasaitas v Noonan Services Group Ltd [2014] ELR 173as an authority for the proposition that the Act does not require breaks to be specified in all circumstances. However, the Complainant in that case was a security guard and, therefore, works in an industry which under the Organisation of Working Time (General Exemptions) Regulations, 1998 is exempt from the requirements of Section 12 of the Act.   Accordingly, it is my view that the precedent quoted is not an authority for the proposition advanced by the Respondent.

I note the Respondent’s contention that in her role as Senior Matron, the Complainant was substantially in control of her own work and, therefore, was in a position to manage her own breaks.

I must now decide if the Respondent is correct in placing the onus on the Complainant to ensure compliance with the hourly break requirements of the Act. In this regard, I am guided by the Labour Court which found in the case ofGina’s Italian Ice- Cream Ltd and Ewelina Gacek (DWT 1627) that:

“The Court finds that the responsibility for ensuring compliance with the Act rests with the employer.”

In light of the Labour Court’s findings, I find that the Complainant’s role as Senior Matron does not remove the Respondent’s obligation to her under Sections 12 nor their obligation under 25(1) of the Act to maintain records of all breaks taken.

Taking all of the above into consideration, I find that the Respondent did not keep appropriate records to show compliance with Section 12 of the Act.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €500.

The Complainant submits that she was required by the Respondent to be present at her place of work every Sunday to Thursday night from 11pm to 7am when she would be either on sleepover duty or on call.

The Complainant submits that being on sleepover duty meant that her name and telephone number would be given to the students and they would know to contact or call her if necessary.

The Complainant submits that being on call meant that she was at her workplace and was available to come on duty if needed.

The Complainant submits that while she was present at her workplace at night she was prohibited from drinking, smoking or having visitors.

The Complainant submits that when she was working a Friday evening shift she was expected to remain in her workplace overnight on Friday night where she would be either on sleepover duty or on call.

The Complainant submits that when she was at her place of employment at night she was working and, therefore, that she worked 76 hours per week.

The Complainant relied on the following precedent in support of her case – C-437/05 Jan Vorel v Nemocnice Cskey Krumlov.

The Respondent disputes that the Complainant was required to work excessive hours.  

The Respondent submits that the Complainant was rostered for a total of 32 hours per week.

The Respondent submits that there was a tradition in the school for residential staff to stay overnight on the campus during term time.

The Respondent submits that when the Complainant was not rostered for sleepover duty she was not on call.

While the Respondent accepts that the Complainant was required to reside on campus during term time, the Respondent contends that when she was not rostered for sleepover duty she was off duty and was not on call.

The Respondent has submitted the following precedent in support of their case: HSE v IMPACT (Labour Court Recommendation LCR20837).

Section 2 of the Organisation of Working Time Act 1997 provides the following definitions:

“ rest period” means any time that is not working time;

“ working time” means any time that the employee is—

( a) at his or her place of work or at his or her employer’s disposal, and

( b) carrying on or performing the activities or duties of his or her work,

and “ work” shall be construed accordingly.

The Court of Justice of the European Union has held that for the purpose of Directive 93/104/EC on the Organisation of Working Time (now Directive 2003/88/EC) time spent by workers at their place of work during which they remain liable to be called upon to perform the duties of their employment is to be regarded as working time. The Directive is transposed in Ireland by the Organisation of Working Time Act 1997.

The Complainant’s contract is very clear that she is required “to be on the premises at night Monday to Friday during term time whether on duty or not”.

I note the Respondent’s contention that despite the requirement for the Complainant to reside on campus during term time, when the Complainant was not on sleepover duty, she was not on call.

The notion that staff would be required to remain on the premises without being on call is not plausible. If there was no expectation that staff would be on call, then I am at loss to understand the requirement for them to remain on the premises, thereby unduly restricting their personal lives.

In the situation where the primary purpose of the employment, according to the Complainant’s employment contract, was to “maintain an orderly and purposeful environment that has as its focus student achievement in all aspects of school life” the Complainant was obviously constrained in her behaviour whilst she was on the school premises whether or not she was on duty. Her time would not be her own to spend it as she wished.

I note that the document entitled “Rostering Arrangements 2017-2018: explanatory notes” which was submitted by the Respondent at the adjudication hearing, contains the following statement:

“Staff are required to be on the premises at night from Sunday to Thursday inclusive and to be on call, if necessary, whether or not on duty”.

The above statement directly contradicts the Respondent’s assertion that when the Complainant was off duty she was not on call.

The Respondent relies on HSE v IMPACT (Labour Court Recommendation LCR20837) where the Labour Court despite its recommendation that “time spent on sleepovers should be acknowledged as constituting working time” did not recommend that compensation should be paid for the breach of the Working Time Directive or that payment should be retrospective.

That case differs from the herein case insofar as it was a case under the Industrial Relations Acts where the approach of the Court was to find “a practical and fair industrial relations basis upon which the dispute should be resolved”.

In its determination, the Court clearly stated that “having regard to the legislative basis under which the dispute is before it, the Court cannot and does not purport to resolve any differences between the parties concerning the interpretation of either the Directive or the Act of 1997. Accordingly, nothing in the recommendations that follow should be understood as addressing those issues or purporting to define the legal rights and duties of the parties under either the Directive or the Act.”

I find, therefore, that the precedent cited by the Respondent is of no relevance to the herein case.

Taking all of the above into account, I find that when the Complainant was required to remain at her workplace overnight she was either on sleepover duty or on call and, therefore, under Directive 2003/88/EC transposed by the Organisation of Working Time Act all of the time that the Complainant was required to be at her place of work should properly be categorised as working time.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €3,000.

The Complainant submits that she did not receive daily rest breaks.

The Complainant relied on the following precedents in support of her case – DWT1484 HSE National Ambulance Service v David O’Connor.

The Respondent rejects the Complainant’s claim that she did not receive daily rest breaks.

Section 11 of the Organisation of Working Time Act 1997 provides that:

“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”.

It is common cause that the Complainant was required to reside at her workplace from Sunday night to Thursday night inclusive.  

Both sides submitted copies of rosters at the hearing and afterwards. It was not possible to reconcile all of the rosters submitted.

Following the hearing, the Complainant submitted copies of emails which she received from the   Head of Boarding in which the roster for the coming week was communicated to her – the Respondent was given an opportunity to comment on these. I have drawn up a roster for the Complainant based on these emails.

Based on the emails submitted by the Complainant, I find that she was required to do sleepover duty on either a Friday or Saturday night six times during the cognisable period.

In light of my previous findings that all of the time that the Complainant spent at her place of work should be categorised as working time, I find that on the nights that the Complainant was required to reside at her workplace she was not in receipt of a daily rest break.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €3,000.

The Complainant submits that she did not receive weekly rest breaks.

The Respondent rejects the Complainant’s claim that she did not receive weekly rest breaks.

Section 13 of the Organisation of Working Time Act 1997 provides that:

“(1) In this section “ daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

( a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

( b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

( a) the rest period granted to an employee under subsection (2), or

( b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.”

Both sides submitted copies of rosters at the hearing and afterwards. It was not possible to reconcile all of the rosters submitted.

Following the hearing, the Complainant submitted copies of emails which she received from the Head of Boarding in which the roster for the coming week was communicated to her – the Respondent was given an opportunity to comment on these. I have drawn up a roster for the Complainant based on these emails.

Based on the emails submitted by the Complainant, I find that during the cognisable period from 11th April 2018 to 22nd June 2018, there was only one 7 day period (from Wednesday 11th April 2018 to Tuesday 17th April 2018) where the Complainant did not receive a weekly rest break in accordance with Section 13 of the Organisation of Working Time Act.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well-founded in part and I direct the Respondent to pay the Complainant redress of €100.

The Complainant submits that she was not compensated for working on Sundays.

The Complainant relied on the following precedents in support of her case – DWT171 Masterlink Logistics v Jakub Rudzinski; DWT13102 Matthew Scally v Aoife Lynch & Michelle Kelly.

The Respondent submits that the Complainant enjoyed the following favourable terms and conditions of employment:

·         paid holidays which were similar to those enjoyed by teachers who were employed by the Respondent.

·         the Complainant was not placed on seasonal lay off during the school holidays.

·         the Complainant’s was provided with her meals when she was at work.

The Respondent submits that the favourable terms and the generous paid leave enjoyed by the Complainant compensates her for Sunday working.

Section 14 of the Organisation of Working Time Act 1997 provides that:

“(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3)“ comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings). “

I note the Respondent’s assertion that the Complainant’s favourable terms serve to compensate her for working on Sundays.

I must now decide if the Respondent’s assertion is valid.

In reaching my decision, I am guided by the Labour Court which held as follows in Viking Security Ltd v Tomas Valent (DWT1489):

“In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernable from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.”

From the evidence adduced, I find that while the Complainant’s contract obliges her to work on Sundays when required, no mention is made in her contract of how she is to be compensated for so doing. No evidence was adduced to suggest that the matter was discussed as part of the contract negotiations.

Given the Labour Court’s findings that compensation for Sunday working should be explicitly stated in the contract of employment or in the associated discussions, I find that the Complainant was not adequately compensated for Sunday working.

Both sides submitted copies of rosters at the hearing and afterwards. It was not possible to reconcile all of the rosters submitted.

Following the hearing, the Complainant submitted copies of emails which she received from the   Head of Boarding in which the roster for the coming week was communicated to her – the Respondent was given an opportunity to comment on these. I have drawn up a roster for the Complainant based on these emails.

Based on the emails submitted by the Complainant, I find that she was required to work on 6 Sundays during the cognisable period.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well-founded and I direct the Respondent to pay the Complainant redress of €300.

Sleepovers, on-call, rest breaks, Sunday premium