Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Charity Service/Respite Centre

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-00022802-001

23/10/2018

The Complainant alleges she did not get any breaks or rest periods over a three-day period in breach of the Act.

The Complainant made a verbal submission.

The Complainant was employed since 2010 as a Social Care Worker.

The Complainant worked 58 hours per fortnight.

The Complainant worked continuously at weekends and had no cover for her breaks.

The Complainant did sleepovers and hade 4 Service Users to mind on her own.

The period in question was April 20th 2018 to April 23rd 2018.

The claim is rejected.

The claim was lodged with the Workplace Relations Commission on 23 October 2018. The Complainant had been on long term sick leave for the six months preceding the claim, excluding the period 20-27 April 2018.   It is the position of the Respondent that the claim is limited to this one-week period between 20-27 April 2018. Prior to this singular week, the Complainant has been on long term sick leave since circa the week commencing 10 December 2017.

Section 41(6) of the Workplace Relations Act 2015 (the "2015 Act") provides that: "Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates."

Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v The Equality Tribunal and County Louth VEC [2016] IESC 40wherein McKechnie J stated: “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. It is bound by what jurisdiction it has and must act accordingly.”

It is on this basis that it is submitted by the respondent that the Adjudication Officer limit this claim to the period 20-27 April 2018.

The matter before the Adjudicating Officer, has already been before the Labour Court, resulting in a comprehensive recommendation in September 2014 (LCR 20837). The claim was brought by IMPACT and SIPTU on behalf of its members, of which the Complainant was a member. It is the position of the Respondent that the Complainant is then in turn bound by the recommendation, accepted on her behalf by her nominated Union, SIPTU. The referral before the Court included the issues of sleepovers, maximum working week and rest periods.

The Labour Court in their recommendation, LCR20837, recognised the operational difficulties in changing long established working patterns. The Court went on to recognise that ‘ a major restructuring of the way in which the services of those associated with these claims is delivered will have to be undertaken in order to bring about full compliance with the legislative requirements concerning working time. This is acknowledged by all parties.’

Following the Labour Court recommendation, a national steering committee was established consisting of representatives from the HSE, Tulsa, Department of Health and Section 38 agencies and officials from both SIPTU and Forsa. The group submit progress reports to the Labour Court, the latest in November 2018. The items raised before the Court have been dealt with on a phased basis.

As part of this solution orientated approach, Local Implementation Groups (LIG’s) composed of both management and staff have been established in 3 pilot sites, one of whom is the Respondent, to identify and agree local solutions to areas of non-compliance specifically in relation to breaks taking into account advice received from the European Commission. The steering group provides support and guidance to the LIG’s. Following successful completion of the pilot this new roster and any lessons learned will be shared with the steering group to enable compliant rosters to be rolled out across the sector nationally.

The Complainant commenced employment with the Respondent on 11th April 2010 on a fixed term relief basis as a Social Care Worker. This contract was renewed on four occasion in the period 31th September 2010 to 28th February 2015. The Complainant was then informed by letter that she was being offered a contract of indefinite duration on a basis of 30 hours availability per pay period, paid whether they were worked or not in line with the SIPTU/Respondent “Banked Hours Agreement”. This was confirmed in writing on 7 October 2014. On the 22nd September 2015 it was confirmed that these hours were being increased from 30 hours to 73.5 hours per fortnight commencing on the 25th September 2015. On 25 October 2016, the respondent acceded to a request from the complainant to reduce her contracted hours of 73.5/78 to 55/78 per fortnight.

The Complainant works at a Respite Centre. The service provides respite care for residents in a safe, homely environment which promotes independence and quality care based on individual needs and requirements. The house can accommodate up to 4 services users with mild to moderate intellectual disabilities, nursing care is not provided. There is an on-call psychiatrist to support staff and services users if required 24/7. There is also an on-call social care manager on duty from 8am to 10.30pm and an on call nurse manager from 10.30pm to 8am 24/7. An individual healthcare plan is created for each service user. The Complainant specifically requested a move to the respite centre.

The respondent has a comprehensive grievance procedure in place however the Complainant failed to utilise same and the Respondent HR department was only put on notice of the issue on receipt of the WRC complaint. In the first instance, employees are encouraged to utilise and exhaust internal procedures in the first instance.

In the reference period to the claim, the Complainant was rostered from the evening of Friday 20 April 2018 at 16.00 to 10.00am Monday 23 April 2018. Each night contact hours ceased at 23.00 and the Complainant engaged in a sleepover arrangement until 9.00am each morning.

On Tuesday 24 April 2018, the Complainant attended off site training from 9.30 – 5.00.

On Wednesday 25 April 2018, the Complainant was rostered from 16.00 in the evening until 10.00am Thursday morning. She commenced again on Thursday evening at 16:00 until 10:00am on Friday morning. Contact hours ceased at 23.00 and the Complainant engaged in a sleepover arrangement until 7.00am each morning.

The implementation of and compliance with the working time directive in the social care sector is currently under review and the respondent is actively participating in a pilot programme in this regard. The process is as recommended by the Labour Court, the appellant Court in this instance.

The matters raised by the Complainant are the subject of a joint management / union EWTD compliance steering committee of which her union is a key stakeholder.

Without prejudice to the foregoing, it is the position of the Respondent that no breach has occurred.

While the Organisation of Working Time Act regulates rest break periods, it also provides for exemptions to the prescribed rest periods by way of statutory instrument.

The Respondent is involved in the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment. The Respondent seeks to rely on the exemption provided for in S.I. No. 21/1998 - Organisation of Working Time (General Exemptions) Regulations, 1998 relating to: “the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment”.

Section 6 (2) (b) of the Organisation of Working Time Act states that “if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee”.

Such arrangements cannot be monetary or of any material benefit to the employee. The Respondent refers to the recent High Court case of Stasaitis v Noonan Service Group Ltd & Anor [2014] IEHC 199. In the case, Kearns P analysed what these ‘compensatory arrangements’ could be including the following:

Taking breaks during periods of inactivity (available to the Complainant in the instant case)

Amenities (Private Bedroom, staff office and shared living room all available to the Complainant)

Kitchen facilities (Available to the Complainant)

Kearns P in finding in the favour of the Employer noted that compensatory arrangements maybe met where the employee is ‘provided with better physical conditions or amenities or services whilst at work’. Of note, Kearns P did not accept the Complainant’s argument that he had not received rests breaks where the Employer had not specified breaks by way of fixed duration.

In support of the foregoing, the Respondent refers to the Code of Practice on Compensatory Rest Periods where the above provisions are expanded upon in support of the Respondent position.

Section 3(2) of the Code of Practice states ‘Exempted employees who miss out on their statutory rest entitlements should receive equivalent compensatory rest as soon as possible after the statutory rest has been missed out on……The Organisation of Working Time Act 1997 and the EU Directive on Working Time do not specify any timeframes within which compensatory rest must be made available.’

Once the Complainant’s shift had concluded, the Complainant was provided with 54 hours continuous rest before commencing her next rostered shift which compensates for the rest breaks not taken during the time spent on site.

The company has at all times acted fairly and reasonably towards the Complainant and has fully complied with the provisions of the Organisation of Working Time Act 1997 as it applies to them. The Respondent respectfully asks that the adjudicator reject this claim.

This claim was limited to a maximum of 3 Days duration based on the date the claim was submitted to the WRC, October 23rd 2018 and the duration of dates which the claim is eligible for consideration are April 20th to 23rd 2018, as Section 41 (6) of the Workplace Relations Act 2015 restricts a claim to a period of 6 months from the date a claim is presented to the WRC.

The claim related to breaches of Section 11 and 12 of the Organisation of Working Time Act 1977 in relation to the non-provision of rest periods and time off between shifts.

Section 3 (2) (a) of S.I. No 21/1998-Organisation of Working Time (General Exemptions) Regulations, 1998 provides exemption to Sections, 11, 12, 13 or 16 of the Organisation of Working Time Act 1977 for employees engaged in certain categories of workers. Schedule 6 (3) (i) exempts employees engaged “in the provision of services related to the reception, treatment or care of persons in a residential institution, hospital or similar establishment.” The Complainant is engaged in the care of persons in a Respite Centre and as this is a residential institution the Respondent is exempted from Sections 11, 12, 13 and 16 of the Organisation of Working Time Act 1977 and therefore the Complainants case for breach of those Sections of the Act has no legal basis and accordingly her claim is not well founded.

Rest Periods