ADJ-00030643

Complainant

Respondent

Parties

Michael Deady

Camphill Communities of Ireland

Representatives

Ger Malone, SIPTU

Sarah Conroy, Beale & Company

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-00041143-001

19/11/2020

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

CA-00041143-002

19/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041143-003

19/11/2020

The respondent is a company limited by guarantee that owns and operates residential communities for people with intellectual disabilities.  It receives funding from the HSE to carry out this work.  On May 2nd 2018, the complainant commenced working as a care assistant in one of the respondent’s houses.  He submitted these complaints to the WRC in November 2020 and in September 2021, two months before this hearing took place, his employment transferred to the Brothers of Charity in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  The respondent to these complaints is the transferor.

The complainant works 12 hours a day and is paid €12.50 per hour.  The complaints which were the subject of this adjudication hearing concern breaks at work, pay for holidays and sick pay.

In her submission on behalf of the complainant, Ms Malone said that in March 2020, the respondent changed the complainant’s roster and he was rostered on 12 hour rolling shifts consisting of 36 hours in week one and 48 hours in week two.  He was frequently rostered to work on his own, sometimes with four residents, and it wasn’t possible to take a break.  The complainant provided an example of his roster for nine weeks from August 31st 2020 until November 1st 2020.  These show that, in some weeks, he was rostered to work on his own for full days, and, on other days, he was rostered on his own for part of the day.  At times, Ms Malone said that the complainant couldn’t take a break, even to go to the toilet.  Some of the agency staff who worked alongside the complainant were not familiar with the residents and he couldn’t leave them alone while he took a break.

At the hearing, the complainant said that the issue is not that he wasn’t able to manage, but that the responsibility for the residents was too much, without a break.  He said that there were safe-guarding issues that were not considered and that the employer was not supportive when he raised his concerns.  The complainant said that he worked on his own mainly at weekends.  Co-ordinators were present from Monday to Friday, and he could be rostered with an agency relief worker during the week.  The complainant said that “a break in Camphill constitutes having a break with residents.”

Ms Malone said that the complainant raised this issue of breaks numerous times, at team meetings and with the house co-ordinator and with the person in charge, Mr Brian Duggan and with the HR manager. 

Ms Malone submitted a copy of a letter she wrote to Ms Louise Gorman on December 22nd 2020.  On the date of this hearing, Ms Gorman was the acting (CEO); in December 2020, she was the group HR manager.  The purpose of the letter was to explain to Ms Gorman that SIPTU members were at breaking point due to under-resourcing and constant pressure and stress at work.  At a meeting of SIPTU members and Ms Gorman at 4.00pm on the same day, Ms Malone said that she pointed out that the right to breaks at work was derived from an EU directive on health and safety at work.  She said that Ms Gorman’s response was that “it was the norm in healthcare” to have paid breaks and to remain with residents.  Ms Malone said that the union’s position regarding the right to take a break was disregarded.  

In her submission, Ms Malone outlined the provisions of section 12 of the Organisation of Working Time Act in relation to breaks at work.  She said that, from March 2020, the complainant was frequently deprived of the opportunity to take a break.

Ms Malone said that the employer’s proposal to change the roster to facilitate the employees to take their breaks is a deterrent to them taking their breaks.

The respondent’s position is that breaks at work are provided.  Because of the “life-sharing model,” employees sometimes take their breaks with the residents.  This is part of the respondent’s ethos.  At the hearing, Ms Gorman said that volunteers are sometimes available to support the staff and volunteers sometimes live in the houses.  Ms Gorman said that residents are not in the houses all day, although this changed during the Covid-19 pandemic.  Employees are provided with food and they are paid to sit and eat with the residents.  The respondent denies the allegation that the complainant has not been given his breaks.

In an appendix to the respondent’s submission, Ms Conroy included a copy of timesheets signed by the complainant in which he agreed that he has “taken all breaks in accordance with CCOI break policy and the Organisation of Working Time Act.”

The Legal Framework on the Right to Breaks at Work

Section 12 of the Organisation of Working Time Act 1997 (“the Act”) places a statutory obligation on employers to ensure that an employee is given breaks during the working day.  An employee rostered for more than 4 hours and 30 minutes is entitled to a break of at least 15 minutes.  An employee rostered for more than six hours is entitled to a break of at least 30 minutes.  The 30 minute break may include the 15 minute break.

To demonstrate that an employee got a break during the working day, section 25(1) of the Act requires employers keep records to show compliance with Section 12:

An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

Findings

The entitlement to breaks makes no exception for employees in organisations providing care to people with disabilities.  The model of care provided by the respondent where staff and residents have their meals together does not have to exclude the entitlement of employees to breaks during the working day and this is simply a policy preferred by this employer. 

No evidence was submitted at the hearing to demonstrate that the complainant got his breaks during the day and the acting CEO said that the respondent’s model of care expects staff to have their breaks with the residents.  While the complainant signed a time sheet which included a statement that he has taken his breaks, he said that he was required to sign this so that he would be paid for the hours he had worked, and that he didn’t always get his breaks.  Ms Malone said that the timesheets are “a mechanism to create an illusion of compliance.”

In breach of section 25(1) above, the respondent provided no records to show that the complainant got the breaks to which he was entitled, whether during mealtimes with residents or otherwise.

Conclusion

Taking all of the evidence into consideration, I have reached the conclusion that, in breach of section 25 of the Act, the respondent did not keep appropriate records to show that the complainant got the breaks to which he is entitled.  I am further satisfied that, in breach of section 12 of the Act, he did not always get the breaks to which he was entitled.

These complaints were submitted to the WRC on November 19th 2020 and the timeframe for which I have jurisdiction to consider a breach of the Organisation of Working Time Act is the six months from May 19th 2020.  I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €1,600, equivalent to approximately three week’s gross pay. 

When he went on holidays in August, the complainant received pay for eight hours a day, although he was rostered for 12 hour days.  On October 7th 2020, Ms Malone phoned Ms Gorman and she explained that the complainant’s annual leave was being calculated incorrectly.  The issue was not addressed.

In her submission, Ms Malone outlined the provisions of Statutory Instrument 475 of 1997 (SI 475/1997), which sets out regulations for the calculation of pay for holidays.  Ms Malone said that it is clear from the Regulations that the complainant is entitled to receive his average weekly or daily pay based on his wages in the 13 weeks before he goes on holidays.  The employer has calculated holidays on the basis of an eight hour day.

Ms Malone referred to the following legal precedents in support of the union’s position:

Chief Constable of the Police Service of Northern Ireland and Another v Agnew[1]

Ms Malone said that the outcome of this decision of the Court of Appeal in Northern  Ireland is based on EU law and is applicable here.

Sash Window Workshop v King[2]

Here, the Court of Appeal in the UK held that “the right to paid annual leave must be regarded as a particularly important principle of EU social law.”

Ms Malone argued that paying an employee eight hours pay when they normally work 12 hours a day is a deterrent to the employee with regard to taking their holidays.  She asserted that the 2003 Directive on the organisation of working time may not be interpreted in a restrictive manner and she argued that I must consider the period from March to November 2020 as the timeframe during which the complainant was not permitted to take his breaks at work.

Nolan Transport and Jakonis Antanas[3]

Here, the Labour Court referred to the case at the Court of Justice of the European Union (CJEU), case-C484/04, Commission v The United Kingdom[4] where Advocate General Kotott pointed out “that it is for the employer to actively see to it that an atmosphere is created in which the minimum rest periods prescribed by Community Law are effectively observed.”

Stablefield Limited v Ana Lacramioara Manciu[5]

Here, the Labour Court awarded Ms Manciu €20,000 in response to a finding that she worked in excess of the maximum working week, in the full knowledge of her employer.

Sabine Von Colson and Elisabeth Kamann v Land Nordrein-Westfalen[6]

Seeking compensation as provided for under the Organisation of Working Time Act, Ms Malone referred to this precedent decision of the CJEU, to advocate for compensation which includes an amount that is effective, proportionate and dissuasive.

Referring to section 19(1) of the Organisation of Working Time Act 1997, Ms Conroy said that the maximum amount of annual leave to which the complainant is entitled is four working weeks.  She said that he received four working weeks, in accordance with his contract of employment and that the length of the shift “is irrelevant.”

Ms Gorman said that holidays are calculated on the basis of an entitlement to four weeks’ paid leave.  When the complainant transferred to the Brothers of Charity in September 2021, he was paid for 166.5 hours, which was the balance of the holidays he had not taken at the time of the transfer.

Following the hearing, Ms Conroy sent me details of the complainant’s annual leave in 2020 and 2021.  These documents show that the complainant’s annual leave was calculated on the basis of an entitlement to 8% of the hours he worked and that he carried over 17.88 hours from 2020 into 2021.  The document shows that, when he transferred to the employment of the Brothers of Charity, he was paid in lieu of 19.62 hours not taken as holidays. 

The Legal Framework Regarding Holiday Pay

Section 20(2) of the Organisation of Working Time Act provides that,

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate,

Subsection (c) is not relevant to our purpose here.

At the hearing, the complainant said that from March 2020, he was required to work a 12 hour shift, working 36 hours in week one and 48 hours in week two.  The meaning of section 20(2)(b) above is clear and provides that, when an employee is taking holidays, they are entitled to their normal weekly pay.  The complainant was an hourly-paid employee, working alternate 36 hour and 48 hour weeks and he was paid accordingly.  The issue for consideration here is, what was his normal weekly pay?

Ms Malone asked me to consider the provisions of SI 475/1997, the Regulations on the Organisation of Working Time (Determination of Pay for Holidays).  Paragraph 2 of the Regulations applies to employees whose pay does not vary from week to week.  Paragraph 3 applies to those whose wages is not consistent from week to week:

(2)  If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

(3)  If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs…

Subsection (b) is not relevant to our purpose here.

It is apparent from this paragraph that, an employee whose wages varies from week to week is entitled to holiday pay based on an average of the pay received during the 13 weeks preceding the holidays.

Findings

The evidence of the CEO was that the complainant received his entitlement to four weeks’ holidays, and that, before he transferred to the Brothers of Charity, he was paid for the annual leave he had not taken up to the date of the transfer.  This is not the complaint submitted however, as the issue in contention is holiday pay and not the entitlement to holidays.

From the evidence submitted by the complainant, it is apparent that, on two occasions in August 2020, when he took two days’ holidays, he was paid for 16 hours.  If he had been at work, he would have been paid for 24 hours.  He therefore received less pay that week than he would have received if he had been at work.  This is the predicament that SI 475/1997 is intended to avoid.

As the complainant worked alternate long and short weeks, and was paid accordingly, in accordance with paragraph 3 of SI 475/1997, his holiday pay should have been calculated based on his average wages in the 13 weeks before he went on holidays.  The respondent provided no evidence that this was the method used.

Conclusion

On the two occasions that he went on holidays in August 2020, the complainant was paid less than he would have been paid if the respondent had applied the method set out in SI 475/1997 on the calculation of holiday pay.

I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €525, equivalent to one week’s gross pay.

In September 2020, the complainant was absent from work due to illness.  He was rostered for three 12 hour shifts during his absence, but he was paid for 24 hours.  He claims that he was left short in his wages of €259.15.  It is the union’s case that there is no provision in the complainant’s terms and conditions for his sick pay to be based on eight hour days, when he works 12 hour shifts.

Addressing this complaint, the respondent’s submission states as follows:

“Under the respondent’s sick pay policy, sick leave is calculated at 15 days per annum x 8 hours.  If you are working a 12 hour shift, you should be paid for such.  However, an employee will not receive anything more in total than the equivalent of 15 days x 8 hours (120 hours).”

Findings

In accordance with the respondent’s sick pay policy, when an employee is absent due to illness and, when they are rostered for a 12 hour shift, they are entitled to be paid for a 12 hour shift.  At the hearing of this complaint, the respondent referred to the maximum of 15 eight hour days’ sick pay to which an employee is entitled.

It seems to me that the reference to eight hour days is associated with the pre-March 2020 roster, when the complainant worked eight hour days.  We know that in March 2020, the roster changed to 12 hour days.  Apart from this, no evidence was submitted by the respondent to show that the complainant exceeded the 15 day maximum entitlement in the sick pay policy.

Conclusion

From the evidence submitted at the hearing, I find that the complainant was absent for three 12 hour shifts, for which he was entitled to be paid €450 (36 hours x 12.50).  Instead, he was paid €300 for three eight hour shifts (24 x 12.50).  It is apparent therefore, that he was left short of €150 in his wages that week.

I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €300, equivalent to twice the shortfall in his wages in September 2020.

CA-00041143-001: €1,600     Breach of section 12 of the Organisation of Working Time Act

CA-00041143-002: €525        Breach of section 20 of the Organisation of Working Time Act

CA-00041143-003:  €300       Failure to correctly calculate sick pay

Total award:                             €2,425

As this award is compensation for a breach of a statutory right, it is not subject to any statutory deductions.

Breaks at work, holiday pay, sick pay