Complainant

Respondent

Parties

Peter  Corrigan

Gudaspa Ltd.

Representatives

  Self Represented

Barry Crushell,  Crushell & Co Solicitors

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-00039421-001

28/08/2020

The Complainant was employed from July 8th 2019 to July 27th 2020 as a Person in Charge. He submitted a claim under the Organisation of Working Time Act 1997 on August 8th 2020 stating, “I did not get weekly rest periods”. At the Hearing the Complainant expanded on this claim to include payment for all time being on call for 9 months. The Respondent denied the complaint.

The Complainant was employed from July 8th 2019 to July 27th 2020 as a Person in Charge.

The Complainant stated he was not required by his contract (which was not provided to the Adjudicator) to respond to calls outside of work hours. He said he was told by his Director that he had to take calls.

The Complainant stated he would get on average about four calls a week from staff or people associated with Patients.

The Complainant stated he had to go in to work about ten times to deal with situations and gave example of when a colleague’s car broke down. He stated these calls mainly came from new staff.

From December 2019 the Complainant stated he was the only person allowed take calls as per HIQA guidelines.

Between December 2019 and July 2020, the Complainant stated he only had three weekends when he got no calls.

The Complainant stated he could not go to the Cinema, visit his home town or socialise due to being on call.

The Complainant stated he got a weekly allowance of 50 Euros after a time for being on call but no extra pay and was told he could take time in lieu.

The Complainant stated he was owed 24,800 Euros for the time he was on call and he had calculated this time owed at the Minimum Wage and not his normal salary an it was for nine-months time on call.

The Complainant stated from August onwards the duties were shared out on a more equitable basis.

The Respondent denied it had any claim to answer and the complaint was misconceived as The Complainant appeared to be seeking payment for out of hours on call duty.

The Respondent stated the line of contact was from the Person in Charge to the Director of Services and then two Directors of the Company.

The Complainant had only ever had responsibility for a maximum of two Residents and his role was administrative and Supervisory in nature.

The Respondent stated there was only one Resident most of the time in the premises the Complainant attended, and the Family of that Resident took that Resident home every weekend from January to March and the Resident was absent from the premises for the following three months due to Pandemic situation.

The Respondent stated that all Residents always had a one to one Nurse assigned to them and there were no instances of aggressive behaviour by the Resident in question.

The Respondent checked their phone records and found no evidence of the frequency of calls being made to the Complainant.

The Respondent stated the Complainant was in an Admin role and was totally underutilised during his employment and the Respondent had considered whether his role was viable.

The Complainant has failed to identify any dates when he did not get his weekly rest periods and the Respondent cannot respond to an abstract claim.

With respect to working time, Article 2(1) of Directive 2003/88/EC defines working time as follows: “working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.

Working time is defined by section 2(1) of the Organisation of Working Time Act, 1997 as follows:

““working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal, and

( b) carrying on or performing the activities or duties of his or her work,”

With regards to working time, the Court of Justice of the European Union (CJEU) has given specific definition in relation to this in the CJEU cases of Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria de Sandidad ey Consumo de la Generalidad Valenciana [2000] IRLR 845and Landesshauptstadt Keil v Jaeger [2003] IRLR 804("the SIMAP and Jaeger cases"). The CJEU held that the time spent on-call by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace and that by contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer only the time linked to the actual provision of services must be regarded as working time.

The CJEU revisited this issue in its decision in Case C-518/15 Ville de Nivelles v Rudy Matzak ECLI:EU:C: 2017: 619 where it found as follows “Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as 'working time', within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C-151/02, EU:C:2003:437, paragraph 65 and the case-law cited).”

The Complainant has failed to provide any evidence as to when, outside of his usually working hours, he was engaged in “work”, for the purposes of the Act, as is required (we refer to A Beauty Therapist v Beauty and Hairdressing Salon (ADJ-00025776). 

The claim is frivolous, vexatious and without any merit whatsoever and denied by the Respondent.

The Complainant alleged he did not get weekly rest periods in breach of the Act. However, the Complainant failed to provide any specific dates when these alleged breaches occurred. In reply to the Respondents position that they had examined their phone records and could not find evidence of the calls the Complainant stated he received,  the Complainant stated they could have been made to his private phone. No evidence was provided by the Complainant to support this position.

The Parties provided widely different views of the situation relating to the on-call situation. On one hand the Complainant stated it was a weekly occurrence and the Respondent stated they had little or no knowledge of the Complainant being called or indeed the need for same.

The Complainant provided no specific details of dates and times when he alleged he was called in out of hours to go to work, or the phones calls he had to respond to and the specific details of when he did not get weekly rest periods. In the absence of such evidence or specifics the Complainant has failed to establish a prima face case that the Act was breached.

I Decide that the complaint is not well founded.

Weekly Rest Periods