Complainant

Respondent

Parties

Jennifer  Duffy

Camphill Communities of Ireland

Representatives

Ger Malone SIPTU

Act

Complaints 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-00044264-001

21/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044264-002

21/05/2021

The complainant was employed by the respondent as a social care worker in October 2018. She worked 40 hours per week and was paid €1,200 per fortnight. The complainant resigned on the 26th February 2021. She is claiming that contrary to the terms of the Organisation of Working Time Act, 1997 that she did not get breaks and that she was not notified of changes to her terms and conditions of employment contrary to the Terms of Employment (Information) Act, 1994.

The complainant said that she is a social care worker and she worked in a house for caring for 3 males with intellectual disabilities. She said that one person needed one to one care while eating.  She said that she started in 2018 and up to August 2020 she mostly got her breaks. A new coordinator was appointed in August 2020 and after that she did not get breaks particularly at the weekends.  She said that she worked 12 hour shifts, 9am to 9pm every second weekend and she did not get any breaks.  She said that during the week she got some breaks because there were other staff working there, but at the weekends she worked on her own.

The complainant said that she raised the issue with the person in charge (PIP) and she was told that she needed to raise it with her direct line manager. She was told to phone one of the other houses to find cover for her breaks and they could not provide cover as they were short staffed.  She said that she was expected to eat her meals in the house with the residents. She raised the issue of breaks by email in October and again in December 2020, but the matter was never sorted out. In an email of the 8th December the complainant pointed out that she was not been facilitated with breaks when she worked at the weekends and asked for the matter to be rectified. The PIP responded asking if she had highlighted the issue with her direct line manager. The complainant said thin a response email that the solutions suggested by the manager were unsatisfactory and the onus should not be on her to find a replacement while she took a break.

SIPTU submitted that the complainant rarely got a proper break but during the weekdays, she could usually get out of the house for 10 or 15 minutes but at weekends most of the time she could not leave the house because of understaffing and the requirements of the residents.

SIPTU submitted that they raised this as an ongoing frequent problem, not just for the complainant but for other staff also. This was raised at every meeting that SIPTU had with Management and the standard response was; "it was the norm in healthcare". It was repeatedly pointed out to management that breaks are a statutory entitlement.

On the 22nd December 2020, SIPTU wrote to the respondent about the breaks and pointed out that the members of the union were not accepting they had to work alone. At a meeting on 22nd December with the HR Manager the breaks issue was raised. It was pointed out that the breaks were an entitlement, that they derived from European Law and were a protective health, safety and welfare matters. The HR Manager stated that it was the "norm" in health to have paid breaks and to stay with the residents during such breaks. SIPTU pointed out that irrespective of being paid the right to a break is a statutory right and it is not a right of the employer to not provide staff with breaks.

It was submitted that management were insistent that no such obligation existed, that once staff were paid for breaks they were obligated to stay with the residents for the duration of their shifts.

It was submitted that management were insistent that no such obligation existed, that once staff were paid for breaks they were obligated to stay with the residents without a break for the duration of their shifts. In support of that position, it was submitted that the decision of the Court of Appeal in Northern Ireland in the case of Chief Constable of the Police Service of Northern Ireland & Anor v Agnew (2019) (MCA June 2019) Ref: STE10946 was relevant to the case herein. The Directive 2003/88/EC. states in the recital states that "the improvement of workers safety.. .and health is an objective which should not be subordinated to purely economic considerations"

It was submitted that, while this case dealt with annual leave, it is clear that any practice or omission of an employer that may potentially deter an employee from taking a break is incompatible with the purpose and right to a break.

The employer told the union that the pay would have to be reduced and that roster would have to change to facilitate the break were definite deterrents to taking breaks.

It was submitted that it was for the Respondent to schedule the breaks.

Section 2 (1) of the Act contains the follow definitions "rest period" means any time that is not working time”

"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,

It was submitted that the complainant was always at her place of work and at her employer’s disposal and carrying on and performing her social care duties in the house for the duration of her shift.

In the Labour Court Determination No DWT 1 1 17 in the case of Nolan Transport and Jakonis Antanas, the Court referred to the ECJ case C-484/04 Commission v United Kingdom (2006) IRLR888 In explaining the nature of the obligation Advocate General Kotott pointed out (at par 69 of her opinion) "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. This she pointed out, requires that within the employment appropriate rest periods are actually scheduled " In concluding the LC said "if the act were to be interpreted in the way contended by the respondent and it were to be held on that on its true construction the act provides that it is ultimately for an employee rather than for the employer to see to it that the obligations regarding breaks are observed, the state would be in default of its obligations under the directive".

It should also be taken into account that the respondent repeatedly disregarded the complainants rights and her appeals for rights to be complied with. It was submitted that there was a serious breach of the complainant’s right to have a break and an award of appropriate compensation for the distress suffered by the complainant for having to work 12 hour shifts without a break.

It was submitted that in a 2019 decision of the Labour Court (Stablefield Limited v Ana Lacramioara Manciu) an award of €20,000 was made to an employee who worked more than the maximum working week, and this demonstrates that the Court is prepared to award significant compensation where there is a conscious breach of an employee's rights.

CA-00044264-002 Terms of Employment

It was submitted that failed to notify the complainant in writing to changes in her contract of employment.  The sick pay and conditions of service changed in that the paid sickness benefit was changed from 3 months to 15 days. The respondent changed the hourly rate from €13.50 to €15 and the complainant did not receive a written notification of the change. Under the Conditions of Service contract the respondent changed the respondent changed the breaks and did not ensure that the complainant was provided with a break. The hours of work were changed from 40 hours per week to 80 hours per 2 weeks (48 hours one week and 32 the next week) and she was not consulted or given the change in writing.

The respondent submitted that it is a not for profit organisation involved in the provision of residential services to adults with intellectual disabilities. Supported Living is a model of support to people with an intellectual disability, to live their own lives – not simply to fit them into a “residential service” but looks at each community member and helps them to be supported and involved in everything that needs to be done in their home and in the lifestyle that community member prefers.

The complainant was employed as a Social Care Worker in the respondent’s organisation from 30/10/2018 until 28/2/2021 when she left the employment. She worked with SSDL for a period and then transferred into supporting in Kevin’s House as the SCW there.  3 males lived in the house supported by the organisation. It was submitted that none of the Residents are funded for 1:1 support.  At times, like all other staff working in social care, the complainant would have engaged in lone working. All staff would have worked alone in this house at one time or another.

In settings where Residents live in homes in a Community, the arrangement is that staff members are present, or in the immediate vicinity, and it is possible that only one staff member will be present for certain periods of time. The respondent supports its Community Members with support in their homes and this is a fundamental part of what the organisation offers its residents. It was submitted that the staff are part of a family/community and in this model all staff are paid for their entire shift. As part of the model all staff are expected to partake of their meals with the residents. For staff and Community Members with support needs, mealtimes are shared and sociable events which provide a structure and routine for the residents throughout the year. The respondent submitted that breaks had been discussed with staff and their Union Representative and they have been told that breaks could be scheduled, but this would result in the shifts being longer to accommodate breaks where staff would be scheduled absent from the homes during the breaks. Currently Staff are paid to have their meals with the Community Members in their homes.

It was submitted that if the complainant needed a break there were staff in five other houses who could assist at any time, additionally, there was a Person in Charge, a Quality and Safety Officer, and House Co-ordinators including Community on Call and volunteers who could be called upon.

It was also submitted that the respondent organisation was exempted from the Act provided for under the Organisation of Working Time Regulations.

Witness Head of HR

The head of HR gave evidence that the respondent company complied with their duty to give breaks. She said that the organisation is involved in providing social care for people with disabilities and is covered by the exemption provided for in Regulation 3 of SI. NO 21 of 1998.  She said that the complainant could take informal breaks and that she could leave the house for her breaks provided she got a volunteer.

Witness: Head of Services

The Head of Services said that there were no breaks scheduled for the complainant as rostered breaks are not part of the model of the organisation. She was paid for her breaks and was expected to sit down and eat with the residents. She did not accept that any of the residents had to be supervised or assisted while eating 

Terms of Employment

It was submitted that there was no requirement to notify the complainant about breaks as there was no change in the break policy.  The complainant was invited to a meeting about the change in the payroll policy.  The respondent said that there was no change to the sick leave policy.

Section 12 of the Organisation of Working Time Act 1998 provides:

(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).

Section 4 of the Organisation of Working Time Act provides for Regulation as follows:

(3)” Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16 or 17 any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.”

Section 6 of the Act provides:

6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.

(2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in section 11, 12, or 13 the employer concerned shall—

(a) ensure that the employee has available to himself or herself a rest period or

break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or

(b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5.”

(3) The reference in subsection (2) (b) to the making of arrangements as respects

an employee’s conditions of employment does not include a reference to—

(a) the granting of monetary compensation to the employee, or

(b) the provision of any other material benefit to the employee, other than the provision of such a benefit as will improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work.

Regulations

The exemptions referred to above are set out in Statutory Instrument 21/1998 of the Organisation of Working Time (General Exemptions) Regulations, 1998.  Schedule 2 of this Statutory Instrument provides:

3. An activity falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,

 or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

 and, in particular, any of the following activities—

 (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,

 The Regulation goes on to provide:

“4 Compensatory rest periods

 4. If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.

 5 Duty of employer with respect to the health and safety of employee

 5. (1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines.

 (2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.”

 The first matter I must decide is whether the respondents organisation is an establishment providing services in a “residential institution, hospital or similar establishment”

The respondent is providing housing and other supports to people with intellectual disabilities. In this case there are 3 people living independently in a house supported by social care workers and volunteers. It is one of 7 houses in the community setting providing similar services to residents with disabilities. I note that it is a section 39 facility under the Health Acts.  I am of the opinion that the respondent’s organisation can be construed as a similar establishment to a hospital or a residential institution given the services provided to people with disabilities.

Th Act provides at Section 6 cited above that where the exemption applies that the employer should provide an equivalent rest period in accordance with Section 12.  The Regulation provides for “compensatory rest periods” and goes on to provide at Regulation 5 cited above that a shift, which is longer than 6 hours duration, there is an obligation on an employer to provide a break.   There was no evidence produced that the complainant could take such breaks. The HR manager said that the complainant could take informal breaks, but she would have to get a volunteer to replace her during the break. The model operated was that the employees had to eat with the residents and they were paid for meal breaks. The complainant said that she was on duty during her meals and had to assist one of the residents with his food.

The Labour Court held in Nolan Transport cited above held that it is the employer’s duty and not the employee to ensure that breaks are scheduled and to interpret the OWTA otherwise would be in breach of the Directive and community law.  

 I note that the complainant worked shifts of 12 hours without a break. The taking of her meals with the residents cannot be regarded as a break given that the complainant had a supervisory role and was working during this period. The Act provides the definition of “rest period” as follows:

Section 2 (1) of the Act contains the follow definitions "rest period" means any time that is not working time”

"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,

 I am satisfied that the respondent was unable to show the provisions of section 12 of the Act was complied with. In Tribune Printing & Publishing Group v Graphical Print & Media Union (DWT 6/2004) the Labour Court held that an employer had not only an obligation to ensure that their employees received rest breaks but that;

“… employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty”

The respondent submitted that the exemption pursuant to Section 6 cited above applied and stated that the complainant was provided with food and was paid for her meal times as objective justification for not providing breaks. In a case where the exemption under section 6 applies, the Act states at Section 6 (3)(a) and (b) cited above that paying the employee or providing any other material benefit cannot be used as objective justification for not providing breaks. I am satisfied therefore there was no objective justification established.    

I am satisfied therefore that the respondent failed to provide the complainant with breaks in accordance with section 12 of the Act. I find therefore the complaint is well founded. Given that the respondent made no provision whatsoever to provide a break and required the complainant to work 12 hour shifts without a break, I consider it is a serious breach of the Act and an award of 5 weeks compensation in the amount of €3,000 is just and equitable in the circumstances.

Terms of Employment

Notification of changes.

5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under Section 3, 4 and 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The complainant stated that she was not notified of changes to her contract of employment. She said that there were a number of changes to the contract the pay period was changed from weekly to fortnightly, the hours of work were changed from 40 hours per week to 48 hours one week and 32 hours the next, sick pay was changed and there was no notification of an increase in pay. The respondent said that the staff were called to a meeting in relation to the payroll changes and that there was no change in the sick leave policy.

Having heard the evidence I am satisfied that the respondent failed to provide the complainant with a notification in writing of the changes to her contract of her employment pursuant to Section 5 above in relation to the change in the payroll period and the change in the weekly hours.  I find that that these complaints are well founded.  I award compensation in the amount of €200.

 I am not satisfied that there was any change to the sick leave policy. I find therefore that this aspect of the complaint is not well founded. 

CA-00044264-001

I find that the complaint pursuant to Section 12 of the Organisation of Working Time Act, 1977 is well founded and I award compensation in the amount of €3,000.

CA-00044264-002

I find that the complaint pursuant to Section 5 of the Terms of Employment (Information) Act, 1994 is well founded and I award compensation in the amount of €200.

Organisation of Working Time Act, 1977 – Section 12 breaks, Section 6 – exemptions, Organisation of Working Time (General Exemptions) Regulations, 1998, Regulation 3 – exemptions.