FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : BORD NA MONA (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - HUBERT RYAN (REPRESENTED BY CONNECT TRADE UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No. ADJ-00011663.
BACKGROUND:
2. The Complainant appealed the Decision of an Adjudication Officer to the Labour Court on the 31 October 2018 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 28 May 2019. The following is the Decision of the Court.
DETERMINATION:
This is an appeal by Hubert Ryan (the Complainant) against the decision of an Adjudication Officer in relation to his complaint pursuant to a contravention of the Organisation of Working Time Act 1997 (the Act).
The Adjudication Officer held that the complaint was not well founded.
Background
The Complainant is in the employment of the Respondent since 1980. He normally works Monday to Friday but is also required to work additional hours when required and to undertake call-out work. The Complainant is seeking to be paid for a rest day he took after working 7 days in a row.
Complainant’s case.
The Complainant worked seven days in a row from the 10thJuly 2017 to the 16thJuly 2017. It is his case that he advised his manager on the Thursday that if he was required to work the Sunday he would be taking the Monday as per his entitlements under the Act. The Complainant took Monday the 16thof July 2017 off as a rest-day and when he returned to work on Tuesday the 17thof July 2017 he was advised that if he wanted to be paid for the Monday he would have to take it as annual leave. It is the Complainant’s submission that he should have been paid for the Monday as it was his rest -day The Complainant also submitted that he was on call on Monday the 16thin the evening which raises the issue of whether it was actually a rest day.
Respondent’s case.
The Respondent does not dispute that the Complainant worked the seven days in question. It is their case that he did not discuss taking the Monday with his manager but instead left a post-it- note which was discovered on the Monday morning. It is their position that there was no breach of the Act as the Complainant did not work the following weekend and received his rest break at that stage.
The law
Weekly rest periods.
13.— (1) In this section “daily rest period” means a rest period referred to insection 11.
(2) Subject tosubsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject tosubsections (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 insubsection (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 tosubsections (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 undersubsection (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 undersubsection (2), or
(b) one of the rest periods granted to an employee undersubsection (3),
shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
(6) The requirement insubsection (2)orparagraph (a)or(b)ofsubsection (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.
Discussion
The Respondent submitted to the Court a work sheet that indicated that the Complainant did not work the week-end of the 22ndand 23rdJuly 2017. Section 13 (3) of the Act allows for a situation where the rest day is not taken following the seven days working for it to be granted at the end of the next seven days and for two rest periods to be granted. In this case two rest periods were granted within the time period allowed therefore no breach of the Act arises.
On that basis the Court determines that the Appeal must fail.
The decision of the Adjudication Officer is upheld
The Court so determines
Signed on behalf of the Labour Court
Louise O'Donnell
CR______________________
7 June, 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.