Complainant

Respondent

Anonymised Parties

Home Care Assistant

Home Care provider

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-00030129-001

08/08/2019

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

CA-00030129-002

08/08/2019

The complainant works as a rapid response care assistant providing home care services for the elderly and persons with disabilities since April 2018.

Her salary is €26,500 per year. Her contract hours are 9 am to 9 pm. The complainant sometimes works in excess of 12 hours per day.

Her complaints are that the respondent is in breach of sections 11,12,13 and 15 of the Act of 1997.

She submitted her complaints to the WRC on 8/8/2019.

CA 00030129-001

The complainant identified the months of June and July as the period within which the breaches occurred. Between June and August 2019, she did not receive the statutory entitlement to a rest period of not less than 11 hours in each period of 24 hours.

Between on call time, travel time and attending to clients she works 12 hours a day and sometimes 14 hours a day. This can be for 10 days in a row. She has raised the matter with the respondent’s director but was advised that as a rapid responder she has to do the calls.

These breaches occurred on June and July 2019.

The complainant maintains that she works in excess of 48 hours per week. In relation to the above complaints the complainant argues that as she is at the employer’s disposal for 12 hours a day, and given that the intervals between clients are taken up with driving, on call time should be factored into the calculation of her working time for the purposes of estimating her entitlements under sections 13 and 15 and also with regard to her annual leave entitlements.

CA 00030129-002

The respondent failed to provide the complainant with breaks as required by section 12 of the Act of 1997 and during the period June- July 2019. The complainant could only rarely get time between visiting clients to avail of a break. The respondent did not designate any periods for breaks.

The complainant went on sick leave on 30 /7/ 2019

CA 00030129-001

The respondent argues that they are exempt from the requirements of section 11 of the Act by virtue of The Organisation of Working Time (General Exemptions) Regulations, 1998,S.I. No. 21 of 1998.

Without prejudice to the above, the respondent also objected to the inclusion of complaints concerning an alleged breach of sections 13 and 15 of the Act of 1997 as they should have been particularised as separate complaints.

Without prejudice to the respondent’s argument that S.1 No 21 of 1998 applies, the respondent’s records, submitted at the hearing, demonstrate that in the referable period commencing June 2019, the complainant’s daily rest period fell below the 11 hours on the

6 June (10.55mins),

17 July (10 hours),

21 July (10.50), 9 July.

The respondent rejects that there was a breach of section 13 of the Act.

The respondent rejects the complainant’s contention that she was required to work 60 hours a week or that they were in breach of section 15 of the Act of 1997.

CA 00030129-002

Without prejudice to the respondent’s argument that the Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21/1998), exempts the respondent from compliance with section 12 of the Act of 1997, the respondent submits that the complainant was rarely required to work more than 3-4 hours without a break. The complainant was required to work in excess of 4.5 hours on seven occasions only during the course of her entire employment stretching back to April 2018. When this occurred, she was provided with a compensatory break.

In the period June – July the complainant worked in excess of 4 hours on 3 occasions before receiving a break. The respondent states that it is impossible to designate a particular time for a break as the complainant is on the road attending to clients. The complainant has the option of and responsibility for taking breaks in the intervals between attending to clients.

I am required to establish if the respondent has breached the statutory obligations laid out in sections 11, 12, 13 and 15 of the Act.

Preliminary Point concerning complaints cited.

The respondent argues that The Organisation of Working Time (General Exemptions) Regulations, 1998, S.I. No. 21 of 1998 exempts the activities undertaken by employees in the home care industry from the obligations laid out in sections 11,12 and 13 of the Act.

In relation to the instant complaints, Section 3 of the Regulations state

“Without prejudice to Regulations 4 and 5 of these regulations and subject to subsequent provisions of the Regulations, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11,12 ,13 and 16 of the Act”.

The Schedule of the Regulations provide that the activities contained at section 1 and 3 respectively are exempt from Section 12 of the Act. These activities are as follows;

“1. An activity in which the employee is regularly required by the employer to travel distances of significant length, either from his or her home to the workplace or from one workplace to another workplace.

3. An activity falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,

or

(b) 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 terms of how the complainant’s work activities match or depart from those laid out in the Regulations, the complainant is not engaged in travelling long distances, nor is she engaged in the treatment of persons in residential institutions. The respondent did not demonstrate how the rate at which the provision of services to the clients varied significantly. In fact, the respondent’s own records indicate a reasonably constant rate of service provision to the clients.

The complainant’s contract specifies that she will receive breaks in accordance with the Act of 1997 and provides for no exemption from same.

The complainant could not determine her own hours.

The respondent failed to submit any authority for the proposition that the S.I 21 /1998 applies to employees in the home care services and that they therefore cannot draw on the protections contained in the Act of 1997.

For the above reasons, I find that exemption pleaded and contained in The Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) does not apply. I can therefore consider the complaints submitted under 11,12, 13 of the Act.

Substantive complaints

CA   00030129-001.

Alleged breach of section 11 of the Act of 1997; failure to provide daily rest periods of a minimum of 11 hours in each period of 24 hours.

I find that the uncontested records, supplied by the respondent, indicate 3 breaches by the respondent; the first occurred on the 6 June (a shortfall of 5 minutes)), the second on the 17 July (a shortfall of an hour) and the third on the 21 July (a shortfall of 10 minutes).

While at the lower level of non- compliance, I find this element of the complainant’s complaint to be well founded and the more serious of the two complaints. I decide that the respondent should pay the complainant €600 which constitutes two day’s pay for each breach.

Admissibility of alleged breaches of section 13 and 15.

The respondent maintains that complaints under these sections are inadmissible as they were not identified as separate complaints. I find that the text in the complaint form and the evidence of the complainant refers to these alleged breaches. I find them to be admissible.

Reckonability of standby or on call time.

The complainant bases these complaints under section 13 and 15 on the premise that all on call time should be reckoned as working time and should be factored in for the purposes of calculating consequential entitlements in respect of the above sections. The complainant’s contract requires her to be on call from 9 am to 9pm and to work no more than 44 hours a week. Hence, she maintains that the number of hours calculable for entitlements stands at 60 and not 44 per week.

She is required to be   the employer’s disposal during periods of on call. This is the extent of the support cited for this proposition.

ADJ-00020012 is a recent adjudication decision which examined the proposition that on call time is de facto working time and therefore has implications for the statutory provisions of the 1997 Act concerning breaks and working hours for retained firefighters.

The adjudicator drew on the CJEU ruling in Ville de Nivelles v Rudy Matzak Case C 518/15 and stated

“I find that in the Matzak case the fact that the employee cannot choose the place where they stay during stand-by periods that provides the constraint that led the Court to decide that such periods must be classified as “working time”.

The Adjudicator further stated

“Therefore, I do not accept that the restrictive elements pertaining to the decision in Matzak in regard to the classification of working time (i.e. being physically present at a place determined by their employer during stand-by periods thus making it impossible for them to choose the place where they stay during those periods can be applied to the complainant’s position.”

He rejected the applicability of Matzak to the complainant’s situation.

So also in the instant case, the salary of €26,000 is payable irrespective of the number of calls which the complainant makes. The contract requires the complainant to attend within one hour of receiving an emergency call. During these intervals between attending to clients – and they frequently amount to 3 hours-she is free to use her time as she wishes. She is not required to be at a particular place, nor at the employer’s centre.

The complainant, therefore does not meet the criteria set out in the above decision nor in the Matzak ruling.

I find that on call time is not working time and is not reckonable for the purposes of identifying entitlements to or breaches of section 13 or 15 of the Act of 1997.

That being the case and based on the evidence submitted I find that no breach occurred under sections 13 or 15.

CA 00030129-002.

Failure to provide breaks. Section 12 of the Act, compliance with which is in issue in this case, provides 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”.

I find on the basis of the respondent’s uncontested records that the complainant’s assignments led to breaches of the above provisions on the 6 July, (4.45 minutes), and the 20 July (6.25 minutes).

I find this element of the complaint to be well founded. I require the respondent to pay the sum of €200 as compensation which amounts to two day’s pay.

CA 00030129-001.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €600 in compensation for this breach.

CA 00030129-002.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €200 in compensation for this breach.

Total Award in respect of

CA   00030129-001 and

CA 00030129-002.

is €800.

Rest breaks; applicability of S.I N 21 /1998