Complainant

Respondent

Parties

Pawel  Zadruzny

G4s Secure Solutions (Ire) Limited

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-00034658-001

14/02/2020

The complainant, Pawel Zadrozny had been employed as a full-time Security Officer since November 2006, contracted to work thirty-nine hours per week, that are averaged over a  two-week period in line with the respondent's payroll process.

His employment transferred to the respondent in October 2011 as a result of a transfer of undertakings.

The complaint arises because the respondent created such a work system that it regularly deprived the employee of the right  to an eleven hour break in each twenty-four hour period. In the period of six months before filing the complaint to WRC, he was deprived of an eleven-hour break twenty-eight times.

He also complains that under section of the 6 of the 1997 Act he was not satisfied with the compensatory rest periods provided.

In the last yearprior tothe complaintto the WRC, the complainant has been regularlyscheduled towork fourteen-hour night shifts.Suchasystemofworkcausedenormousfatigue,lackofsleep,stressandincreasinghealthdisordersto the employee.

As a consequence, he was no longer able to work and was on certified sick leave for a long period. Complaints and requests for compliance with the legal working hours were ignored by the employer.

The respondent once again failed to comply with the law and disregarded and did not follow an earlier WRC Decision: ADJ-00009873.

G4S Secure Solutions (IRE) Ltd is a licensed security provider of static guarding and patrol/response services to customers nationwide and employs approximately 1600 people The complainant has been employed by the company since 17th November 2006 as a Security Officer and is paid €11.65 an hour, working an average of thirty-nine hours per week.

His complaint is under Section 27 of the Organisation of Working Time Act 1997.

On his complaint form, Mr. Zadruzny has stated under the Specific Complaint CA-00034658-001 Hours of Work “I do not get a daily rest period” and under the section Complaint Specific Details or Statement “I have been working without my Statutory rest period from January 2019 to date very often (about half my working time).”

As part of Mr Zadruzny’s submission, “Submission Page II” he has stated:

“In the period of six months before filing the complaint to the WRC, the employee was deprived of 11 hour break 28 times” and “Above complaint arising also under section 6 of the OWT 1997 (OWT); I state that I am not satisfied with the compensatory rest period provided”

The respondent has examined the six-month period prior to the CA-00034658-001 claim which is 14/08/2019 to 14/02/2020.

The working hours report taken directly from the complainant’s work schedule during the reference period was submitted in evidence. 

The complainant works a fortnightly roster that is issued to him several days in advance of work commencing for the next fortnightly period. It is established practice for many years that any queries on the numbers of hours provided or the rest breaks are highlighted to the employee’s manager who will rectify the situation.

No such complaints were raised by the complainant during this time.

There are two occasions when he did not get the required rest period, the first was between August 15th and 16th 2019. The company’s roster system has an inbuilt hard constraint that does not allow the statutory rest periods to be overwritten without employee consent.

This means that an employee, in a general sense cannot be rostered with break rest periods at the same time.

The only other area highlighted is that of August 31st, 2019 where a shift was worked on temporary watch outside of his normal working roster. During times where a site is short staffed, the NCC (National Control Centre) makes call to staffs who are not working on the day in question to see whether they would be willing to work a shift.

It is up to the individual staff member to consent and take up the work or refuse on the basis that they have their contracted work for the period in question.

In relation to the allegation of the complainant regularly working fourteen-hour shifts, this aspect of the claim is outside the scope of the Specific Complaint CA-00034658-001 and it is requested that is treated so for the purpose of this hearing.

We are very much aware of the WRC Decision from 31/01/2018 (ADJ-00009873) and have been since the decision was issued.

The complainant had a good working relationship with his then manager, (during the full period of claim 14/08/2019 to 14/02/2020). As can be seen from the email thread (submitted) from April 2019 he has acknowledged the fourteen hour shifts and agreed those with his manager on the site where he worked.

The site where the complainant was based did have fourteen hour shifts and it was close to the complainant’s home. Other sites could have been provided to the complainant which would have fulfilled his contracted hours, but he chose not to pursue that option. The complainant’s email in his submission dated 30th October 2019 to Mr Barrett acknowledges regular fourteen hour shifts as part of his roster.

Once that email was received on 15th January 2020 regarding the working of fourteen-hour shifts, Mr Barrett responded to him on the same day and told him that he would ensure that fourteen hour shifts would not be rostered but it would be on a site where he had to travel.

For the purposes of our submission, we would also point to General Exemptions The Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) , in accordance with Section 4(3) of the Organisation of Working Time Act 1997, that persons employed in the following activities shall be exempt from the application of sections 11, 12 and 13 of the Act which deal respectively with daily rest, rests and intervals at work and weekly rest.

In conclusion, the respondent submits that they were not in breach of the Act but rather that it acted within the scope of the Labour Relations Commission Code of Practice on Compensatory Rest in accordance with the Provisions the Organization of Working Time Act 1997 and Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998).

Therefore, the Adjudicator is respectfully asked to consider the Respondent’s position and find its favour.

There are two complaints here relating to breaks.

One arises in respect of when the complainant was working a fourteen-hour shift. It is accepted by the respondent that he did work such shifts, but the respondent submits that they were organised in such a way as to ensure there was an eleven-hour break, except on one occasion.

They further say that the fourteen-hour shift was agreed to accommodate the complainant as the location to which he was assigned was nearer to his home, and as soon as her raised any objection to it the shift arrangement was ended. The respondent further relies on the exemptions provided for, (relying on the Code of Practice).

Where Regulations exempt certain activities from the rest breaks, daily and weekly rest periods set out in sections 11, 12 and 13 of the 1997 Act.

Where collective agreements providing for a similar exemption have been concluded by the parties and approved by the Labour Court. (Registered Employment Agreements and Employment Regulation Orders may also provide for the variation of rest periods, but not of working time provisions).

In every case at (I) above where statutory rest times are varied the employer concerned must ensure that equivalent compensatory rest is made available to the employee.

The respondent submits that its sector is covered by an exemption and also says that this aspect of the complaint is ‘outside the scope’ of the specific complaint.

The complainant stated that his complaint related to ‘working without my Statutory rest period from January of 2019’ so I find that this can easily extend to all rest periods, or at least those that fall within the cognisible period.

However, on the basis of the documentary evidence submitted there was only one occasion on which there was a period of encroachment of less that eleven hours between shifts, and not the twenty-eight asserted by the complainant for which no evidence was submitted.

I do not consider that these isolated breaches are sufficient to ground a case against the respondent such that the complainant is entitled to a remedy here, and such incidents are more appropriate to the internal grievance machinery in the first instance where they present as infrequent occurrences.

The respondent has IT solutions in place to manage and limit possible breaches of a worker’s rights and on the basis of the evidence in this case they are largely effective.

For these reasons, complaint CA-00034658-001 is not well founded.

For the reasons set out above complaint CA-00034658-001 is not well founded.

Working Time, breaks.