DWT1914

DETERMINATION:

This matter comes before the court as an appeal by Ms Deirdre Morgan (the Appellant) of a decision of an Adjudication Officer in her complaint made under the Organisation of Working Time Act, 1997 (the Act) against her former employer, Sandra Cooney’s Home Care Limited (the Respondent).

The Adjudication Officer upheld the Appellant’s complaint and awarded her €150.00 in compensation. The within complaint was made to the Workplace Relations Commission on 30^thJuly 2018.

Preliminary matter

The Appellant made application to the Court to anonymise the decision of the court. The Appellant submitted that disclosure of her identity could have adverse implications in terms of future applications for employment.

The Respondent submitted that it opposed the application and put forward a view that disclosure of the Respondent’s identity could be argued to be detrimental to the Respondent.

The Act at Section 44(7) provides as follows:

• (7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

The case

The cognisable period for the within complaint, having regard to the time limits set out in the Workplace Relations Act, 2015 at Section 41 (6), is 31^stJanuary 2018 to 30^thJuly 2018. The Appellant has complained that she did not receive her daily rest as set out in the Act at Section 11 and she did not receive weekly rest as set out in the Act at Section 13.

It is common case that the Claimant worked every day from 31^stJanuary 2018 to the 6^thJuly 2018 inclusive. It is common case that on no date across that period did the Appellant receive the daily rest period of 11 hours set out in the Act at Section 11. The Appellant received daily rest of 10 hours. It is also common case that the Appellant received no weekly rest period in any seven day period between those dates.

It is common case that in the period from 6^thJuly 2018 to 30^thJuly 2018 the Appellant did not receive the daily rest set out in the Act at Section 11. She received 10 hours daily rest each day. It is also common case that between those dates, while the Appellant did receive weekly rest, it was not to the amount set out in the Act at Section 13. The Appellant was afforded two consecutive 24 hour rest period in each 14 day period but such rest was not preceded by an 11 hours daily rest period as required by the Act at Section 13 and no submission was made that the provisions of the Act at Section 13(6)(4) applied.

The Law

The Act at Section 11 provides as follows:

Daily rest period.

• 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.

Weekly rest periods.

• 13. (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 least24 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.

The obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the workplace is a fundamental social right in European Law. There is no dispute before the Court as to the fact that the Respondent in the within appeal failed to ensure that the Appellant was afforded adequate rest having regard to the Act. It is clear that throughout the cognisable period for the within complaint the Appellant was not afforded her statutory entitlement to daily rest of 11 hours and for all of that period save the last three weeks she was not afforded any weekly rest.

The Respondent submitted that the Appellant actively sought through self-rostering to attend at work across the seven days of the week and that she herself is responsible for much of the breaches of the Act which have occurred.

The uncontested evidence before the Court disclosed that the Claimant regularly commenced work before the expiry of an 11-hour period since she last worked on the previous day and that she mainly worked seven days per week.

The question of whether the Working Time Directive, from which the Act of 1997 is derived, imposes an obligation to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken was considered by the then ECJ in Case C-484/04, Commission v United Kingdom [2006] IRLR 888.

This case concerned guidelines issued by the UK Authorities on the application of statutory provisions equivalent to the Act of 1997. These guidelines provided that “employers must make sure that workers can take their rest, but are not required to make sure they do take their rest”. The Commission brought proceedings against the United Kingdom claiming that in issuing these guidelines it had failed to fulfil its obligation to effectively implement the Directive. The Court held that the impugned guidelines amounted to an incorrect statement of Community law.

In its’ Judgment the Court held as follows: -

• Workers must actually benefit from the daily and weekly rest periods provided for by Articles 3 and 5 of the Directive. Those provisions impose clear and precise obligations on the member states as to the result to be achieved by such entitlement. A member state which, in the national measures implementing the Directive, provides that the workers are entitled to certain rights to rest but which, in the guidelines for employers and workers on the implementation of those rights, indicates that the employer is nevertheless not required to ensure that the workers actually exercise such rights, does not guarantee compliance with either the minimum requirements laid down by Articles 3 and 5 or the essential objective of the Directive, which is to secure effective protection of the safety and health of employees by allowing them to enjoy the minimum periods of rest to which they are entitled

In this case it is clear and undisputed that the minimum daily rest period prescribed by Section 11 and the minimum weekly rest period prescribed by Section 13 were disregarded. It is equally clear to the Court that the Respondent took no practical steps to ensure that that its obligations under the Act in that regards were observed. Accordingly, the Court is satisfied that Section 11 and Section 13 of the Act were contravened in relation to the Claimant.

The right to adequate rest is a right derived from a Directive of the European Union. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

The Act at Section 27(3)(c) provides that the Court may award compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years remuneration. The Appellant in the within appeal was paid €12.00 per hour at the material time and appears to have been rostered to work significantly in excess of 40 hours per week each week.

Determination

The Court determines that the appeal must succeed. In measuring the amount that is just and equitable having regard to all the circumstances the Court has taken account of the gravity of the infringements which it has found to have occurred and the sustained nature of those infringements. Having regard to these factors and the obligations arising from the CJEU decision in Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the Court has measured the amount of compensation which is just and equitable at €15,000. The Respondent is directed to pay the claimant compensation in that amount.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
27 June 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.