ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018318
Parties:
| Complainant | Respondent |
Anonymised Parties | A Retained Firefighter | A Local Authority |
Complaint:
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-00023531-001 | 26/11/2018 |
Date of Adjudication Hearing: 09/01/2020
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant is employed by the respondent as a Retained Firefighter since July 2011. The within complaint relates to an alleged breach of Section 15 of the Organisation of Working Time Act, 1997 (Excessive Weekly Working Hours). The complaint was referred to the Workplace Relations Commission on 26th November 2018. The cognisable period of the complaint is therefore 27th May 2018 to 26th November 2018. Note: The complainant also submitted a separate complaint bearing the Adjudication reference number ADJ 000-21122 on 15th April 2019 and 3rd July 2019 in respect of multiple alleged breaches of the Organisation of Working Time Act, 1997 (including a breach of Section 15 of the Act relating to the requirement to work in excess of the statutory maximum number of hours per week). The adjudication decision in ADJ-00021122 should be read in conjunction with the decision of the within complaint. |
Summary of Complainant’s Case:
The complainant contends that he is required to work 168 per week when on standby as a retained firefighter. The complainant cited the case of C-518/15 Ville de Nivelles v Rudy Matzak, ECLI:EU:C:2017:619 (hereafter “Matzak”) which he contends is on all fours with the specifics of his employment. The complainant contends that as a result of the CJEU decision in “Matzak” he works 168 hours per week which is in excess of the statutory maximum number of weekly hours of work permitted. |
Summary of Respondent’s Case:
The respondent contends that the CJEU decision in “Matzak” has no application to the complainant’s employment on the basis that the complainant is employed on a full-time basis elsewhere during periods of on call. The respondent contends that the complainant is paid a retainer to be available on standby and is paid an additional fee when required to attend a call out. The respondent stated that the period of standby does not meet the definition of working time as, while the complainant is available, he is not engaged in the provision or services at that time. |
Findings and Conclusions:
In Decision No. ADJ-00021122, I have addressed the complainant’s assertions that the period of time he spends on standby meets the definition of working time. In line with that decision, I do not find that to be the case and I find that the “Matzak” case cannot avail the complainant in advancing his compliant on the basis that the decision in “Matzak” is not on all fours with the specifics of the complainant’s employment with the respondent. Accordingly, I find that the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, I find that the complaint is not well founded. |
Dated: 9th April 2020
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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