Complainant

Respondent

Parties

Sandra  Duggan

Go-Ahead Ireland

Representatives

Paul Rowsome, National Bus & Rail Union

Brendan McCarthy, Stratis Consulting

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-00038554-001

07/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00038829-001

20/07/2020

The Complainant is employed by the Respondent as a bus driver.  She has submitted a complaint under the Organisation of Working Time Act 1997 in respect of the lack of facilities for taking her rest break on 23rd May 2020.  She has also submitted a complaint alleging penalisation under the Safety, Health and Welfare at Work Act 2005 as a result of raising a health and safety concern.

The Complainant submits as follows:

The Complainant commenced employment as a bus driver on 16th September 2019.  She mainly drives the no. 17 bus which operates from Rialto to Blackrock via UCD.  Her base is the Respondent’s Ballymount Depot.

On 23rd May 2020, the Complainant started work at 10.15 in Ballymount and, after completing all the required pre-service procedures, she commenced her duty on the no. 17 route. 

It should be noted that the 23rd of May 2020 occurred during the Covid-19 pandemic and, therefore, UCD, like most other such institutions in Ireland, was in lockdown.  Additionally, tropical storm Arthur hit Ireland on that date bringing with it strong winds of between 100km – 130km per hour and heavy downpours of rain.

The Complainant’s rest break for her duty on the 23rd of May 2020 started at 13.32 at UCD and finished at 15.27.  Normally when a bus driver arrives at their break location, they hand their bus over to one of their colleagues and the bus continues on its journey.  If there is no permanent break facility in place at the break location, the Respondent provides an out of service bus in which drivers who are on their breaks can take shelter. However, when the Complainant arrived at UCD on 23rd May 2020, there was no break bus at that location and the Complainant had nowhere to shelter or to sit down.  She was also worried about her personal safety as the bus parking facility in UCD is somewhat isolated.  Furthermore, the Complainant submits that she was cold and wet when carrying out the second part of her driving duty on that date.

The Complainant, like most of her colleagues, had left her mobile phone at her base because of the potential disciplinary issues that may arise as a result of having a phone on display whilst driving.  When another no. 17 bus pulled into UCD, the Complainant asked the driver to contact the depot to inform them that there was no break bus at UCD. 

The Complainant submits that the lack of any shelter, eating, washing or seating facilities on 23rd May 2020 was in breach of sections 18 and 19 of the Safety, Health and Welfare at Work Act 2005 which sets out the minimum standards for the facilities that employers are obliged to provide to enable their employees to take their breaks.  The Complainant further asserts that the lack of appropriate facilities effectively meant that she had no opportunity for rest and relaxation, resulting in her not getting a break as required under section 12 of the Organisation of Working Time Act. 

The Complainant asserts that seven other drivers took their break at UCD on the same day and that they also were not provided with a break bus.

The next day (Sunday 24th May 2020), the Complainant lodged a formal grievance with the Respondent.  Her grievance was rejected by the Respondent on the grounds that the Complainant should have made a call to a supervisor to alert them to the absence of a break bus at UCD on 23rd May 2020.

The Complainant appealed the findings of the Respondent.  Her appeal was again rejected by the Respondent. 

The Complainant cites Case-484/04 Commission v United Kingdom [2006] IRLR888 in support of her claim.

The Respondent submits as follows:

The Respondent submits that the Complainant received her break on 23rd May 2020 and, therefore, it is not in breach of Section 12 of the Organisation of Working Time Act 1997.  The Respondent submits that the Complainant gets a daily subsistence allowance to enable her to buy provisions for her break.

The Respondent maintains that whilst most of UCD was closed on Saturday 23rd May 2020, the Spar shop near the bus parking area was open and was selling hot beverages and sandwiches.  In addition, the Respondent had provided portaloo facilities at the bus parking area.

The Respondent asserts that it was not alerted until quite late on 23rd May 2020 that a break bus was not provided at UCD. The Respondent suggests that if it had been alerted earlier by the Complainant or one of her colleagues, it would have rectified the omission.

The Respondent submits that subsequent to 23rd May 2020, it provided enhanced break facilities at an alternative location on the no. 17 route.

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks 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).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). 

4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

There is no dispute that the Complainant was granted her rest break on 23rd May 2020.  There is also no dispute about the facilities that were available to the Complainant on that date. 

From the Respondent’s response to the grievance raised by the Complainant, it is clear that the Respondent was of the view that there was an obligation on the Complainant to notify the Respondent that there was no break bus located at UCD on 23rd May 2020.  The Complainant strongly disputes that there was any such obligation on her.

Both the Organisation of Working Time Act 1997 and the Working Time Directive on which it is based are primarily directed at protecting the safety, health and welfare of those at work.  This is clear from Article 1.1 of the Working Time Directive which provides as follows:

“Article 1 Purpose and scope

1. This Directive lays down minimum safety and health requirements for the organisation of working time.”

The Complainant cited sections 18 and 19 of the Safety, Health and Welfare at Work Act 2005 in her submission.  Sections 18 and 19 of the Act set out, inter alia, the minimum facilities that an employer must provide to employees to enable them to take their breaks.  Whilst the remit of the WRC does not extend to sections 18 and 19 of the Safety, Health and Welfare at Work Act, I am of the view that in order to comply with section 12 of the Working Time Act, an employer is obliged to provide adequate facilities to enable their employees to take a proper rest break.  This obligation rests solely with the employer.

In her submission, the Complainant referenced a number of other dates on which it is alleged that the Respondent did not provide a break bus at UCD. As these dates occurred after the submission of this complaint to the WRC, I have not taken them into account when making my decision.

Based on the totality of the evidence adduced at the hearing, I find that on 23rd May 2020 the Respondent did not provide the Complainant with adequate facilities to enable her to take her rest break and was, therefore, in breach of section 12 of the Organisation of Working Time Act. 

I note that the Respondent addressed the health and safety concerns raised by the Complainant by subsequently providing a more suitable break facility at an alternative location to UCD.

I have given careful consideration to the submissions of both parties on this issue.

I find that this complaint is well founded, and I direct the Respondent to pay the Complainant redress of €100.  I also direct the Respondent to comply with both the spirit and letter of the provisions of section 12 of the Organisation of Working Time Act 1997.

The Complainant submits as follows:

The Complainant raised a grievance with the Respondent on 24th May 2020 in relation to an alleged breach of health and safety.  The Respondent rejected the Complainant’s grievance.  The Complainant appealed the Respondent’s findings. 

The Respondent again rejected the Complainant’s appeal and, according to the Complainant, subtly raised the possibility of moving the Complainant from her usual route.

The Complainant asserts that by proposing a change of duty as a means of dealing with the Complainant’s grievance, the Respondent penalised the Complainant contrary to section 27 of the Safety, Health and Work Act 2005. 

The Respondent submits as follows:

The Respondent suggested a change to the Complainants’ route in order to provide her with better facilities for her breaks.

The Complainant objected to the Respondent’s proposal. Her objection was accepted by the Respondent and she remains working on the same route. 

The Respondent submits that there were no changes in the Complainant’s working arrangements and, therefore, that she was not penalised.

What is in issue in this case is whether the Complainant was penalised within the meaning of section 27 of the Act for committing a protected act, within the meaning of section 27(3) of the Act. The protected act upon which the Complainant relies in this case is the making of a complaint to the Respondent of a type envisaged by section 27(3)(c) of the Act. That is to say a complaint relating to health, safety and welfare at work.

Penalisation is defined in section 27 of the Act in the following manner:

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

… (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, …

As the Labour Court pointed out in O’Neill v Toni and Guy Blackrock Limited E.L.R. 21:

“it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Complainant must, therefore, first establish that she committed a protected act.

In the herein case, I find that, by making a complaint to the Respondent regarding her concerns for her health and safety due to the failure of the Respondent to provide her with adequate facilities for her break on Saturday 23rd May 2020, the Complainant did commit an act which is protected under section 27(3)(c) of the Act. 

The second requirement is for the Complainant to establish that she suffered a detriment for having committed an act that was protected by subsection 3 of section 27 of the Act.  It is clear from the evidence adduced at the hearing that the Complainant believes that she suffered a detriment when the Respondent proposed to change her route after she raised concerns about her health and safety.

However, it is also clear from the evidence adduced at the hearing, that the Complainant objected to the proposed change and that it did not go ahead.  Accordingly, I am of the view that since the proposed change did not go ahead, the Complainant did not suffer any detriment. 

Bearing all of the above in mind, I find that the Complainant was not penalised by the Respondent for committing a protected act.   Accordingly, I find that this complaint is not well founded. 

Having investigated the above complaint, I find that the Complainant has not established a case of penalisation contrary to section 28 of the Safety, Health and Welfare at Work Act 2005.

Accordingly, I find that this complaint is not well founded.

Inadequate facilities for rest break; penalisation under Safety, Health and Welfare at Work Act