Complainant

Respondent

Anonymised Parties

An Employee

A Leisure Centre

Representatives

none 

Muireann McEnery , Ibec

Act

Complaint 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-00039327-001

24/08/2020

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

CA-00039327-002

24/08/2020

The Complainant is employed by the Respondent having commenced In October 2006.  The Complaint Form was received by the WRC on the 24thAugust, 2020. The Complainant is seeking redress pursuant to the Organisation of Working Time Act [1997-2017] in respect of a 50% reduction in his daily break. The Respondent denies the complaint.

CA-00039327-001

The Complainant outlined his complaint. He stated that he worked eight hours daily and that he had a contract of employment which granted him a 60-minute paid rest break which term of employment he held for the previous 14 years. The Complainant stated that on the 29th June 2020, he was informed by the Manager of the Respondent that this break was being reduced to 30 minutes which the Respondent stated was due to the ‘’economic and operational impact of Covid-19”. The Complainant stated that initially he thought the thirty minutes reduction was a temporary measure. However, when he asked when his full break would be reinstated, the Complainant was told that “this will be indefinite and permanent change”.

The Complainant stated that at the same time the Respondent created a new position of Duty Manager notwithstanding the purported financial difficulties.

It is the Complainant’s position that the Respondent is using the Covid-19 pandemic as an excuse to reduce the duration of his break from sixty to thirty minutes. The Complainant stated that he had worked tirelessly and understood the challenges for the Respondent caused by the pandemic but that his sixty minute break period was a key contractual term of his employment. In this regard, the Complainant maintained that his contract can only be changed by mutual consent and that he does not accept the 50% reduction to his break. Notwithstanding, the Complainant clarified that since the 29th June 2020, he has continued to work as rostered with the 30 minute break but is doing so under protest.

The Complainant provided various emails exchanged with the Respondent in the course of which he sought to resolve his grievance including the record of a meeting held with the Respondent on 14 July 2020.

CA-00039327-002

The Complainant stated that the entirety of his complaint was contained in complaint CA-00039327-001 and accordingly, at the commencement of the adjudication hearing, he withdrew complaint CA-00039327-002.

The Respondent disputed the complaint on the basis that notwithstanding the reduction in the Complainant’s daily break from sixty to thirty minutes, the Respondent was fully complying with the terms of the Organisation of Working Time Act [1997-2017]. The Respondent stated there were only two persons working on contracts containing a one hour break provision. The Respondent stated that it notified the Complainant by email on the 25th June 2020 as follows:

“I just wanted to touch base with you prior to your return on Monday 29th June. Due to the impact that COVID-19 has had on the operations of the Centre a number of key changes have been made to ensure its viability going forward. Some of which I have spoken about in our meetings and others will be conveyed to you in the coming days. One of the changes will be to staff breaks. In order for us to facilitate staff breaks with keeping the operational needs of the Centre in mind we are standardizing all breaks (working over 6 hrs) for leisure staff at the statutory 30 minutes…..”

In a further email to the Complainant of the 27th June 2020 the Respondent advised that the change will be “indefinite and permanent”. The Respondent stated that due to Covid its income had been reduced as there were less users of the centre. The Respondent also stated that in addition to the thirty minute break, there was also two ten minute breaks and that all staff have flexibility in relation to use of the kitchen facilities during this time. The Respondent also outlined its rationale for appointing a Duty Manager and stated that this was under discussion in 2017.

The Respondent stated that the centre was closed during Covid lockdown measures and consequently the Manager did not have adequate opportunity to seek resolution of the matter directly with the Complainant.

It is the position of the Respondent that it is in compliance with the Organisation of Working Time Act [1997-2017].

CA-00039327-001

Sections 12 (1) and (2) of the Organisation of Working Time Act [1997-2017] state 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; such a break may include the break referred to in subsection (1).”

The facts are largely not in dispute in this case nor is the content of the various emails exchanged between the parties. Further I note that the Complainant confirmed by email of the 16th July 2020 that the minutes of the meeting held between the parties on the 14th July were correct. I have considered the record of that meeting and I note that whilst the Respondent stated the situation would be kept under review, there was no indication that the Complainant’s break time would revert to sixty minutes.  In an email of the 27th July 2020 the Respondent acknowledged the Complainant’s concerns re communication.

My function as Adjudication Officer is to establish if the provisions of the Organisation of Working Time Act [1997-2017] have been breached. In this regard, I note that the Complainant acknowledged at the adjudication hearing that he could not find a specific legislation to deal with his breach of contract concerns.

I have considered the application of Sections 12(1) and 12(2) of the Act as outlined above. In circumstances where the Complainant worked eight hours daily, I am satisfied that the granting of a thirty minute daily rest period – which is not in dispute - fulfils the requirement of the Act. I have also noted that the Complainant accepted at the adjudication hearing that there was additional flexibility for small breaks during the working day to use the kitchen facilities. Accordingly, I am satisfied that in so far as the Complainant’s daily rest and interval periods are concerned, the Respondent has not breached the provisions of the Organisation of Working Time Act [1997-2017].  

CA-00039327-001

For the reasons outlined this complaint is not well founded.

CA-00039327-002

The Complainant withdrew this complaint in the course of the adjudication hearing and therefore, I make no decision in the matter.

Rest and Interval at work periods; Contract