ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023943

Parties:

	Complainant	Respondent
Anonymised Parties	A Car Parking Attendant	A Car Parking Management Company

Representatives

SIPTU

IBEC

Complaint(s):

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-00030550-001	29/08/2019

Date of Adjudication Hearing: 18/10/2019

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

A Labour Court determination was issued in August 2019 which found that the Complainant should be able to take his breaks in accordance with the provisions of the Organisation of Working Time Act 1997. Prior to this, the Complainant claimed that while he was getting the required break, he was unable to leave site and it was therefore not an uninterrupted break. Despite the Labour Court determination and a revised procedure from the company purportedly giving effect to this, the Complainant alleged that he was still unable to leave site because it was not clear from the revised procedure that he could do so. While this position was clarified at the hearing, and the procedure was further revised to the satisfaction of the Complainant, he is seeking compensation given the failure of the company to fully and properly effect the determination of the Court.

Summary of Complainant’s Case:

Despite the Labour Court determination and a revised procedure from the company allegedly giving effect to this, the Complainant claimed that he was still unable to leave site during his breaks and the revised procedure did not specifically state that he could do so. He claimed that he sought clarification from the Respondent on a number of occasions but that the matter was not addressed.

Summary of Respondent’s Case:

The Respondent stated that through its revised procedures, it gave effect to the Labour Court’s determination within 3 weeks of its receipt and that the Complainant was thereafter able to leave site for his required break. It was also highlighted that the Complainant did not invoke the grievance procedure prior to lodging his complaint to the WRC.

Findings and Conclusions:

In reaching my decision, I must assess whether any compensation should be given to the Complainant for the Respondent’s alleged failure to fully give effect to the Labour Court determination and address the Complainant’s claim that he was still unable to leave site, notwithstanding the purported revision of the procedures surrounding breaks.

While the Respondent has stated that the revised breaks procedure issued on 26th August 2019 adequately addresses the Labour Court determination, it was not specifically stated that employees could leave site for the duration of their required break. The Complainant states in his evidence that he sought clarification on a number of occasions from line management but that such requests were ignored and he had to continue remaining on site for the duration of the breaks.

Given that there was no direct evidence presented by the Respondent to suggest that the requests for clarification had not been made, I am satisfied that they were indeed sought by the Complainant in order for the Respondent to clarify the procedure but that such clarifications were not forthcoming. Given the failure of the Respondent to provide same, I consider that the Complainant had little choice but to remain on site for the duration of his required break. Accordingly, I find that his complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

While I find that the complaint was well founded, I must consider the very short time period involved, namely the period between the date on which the revised procedure was issued and the date of the hearing, when the break procedures were clarified to the Complainant’s satisfaction. Accordingly, I make an award of €150 in respect of the breach of the Act.

Dated: 19th November 2019

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Key Words: