MWD222

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00019586, CA-00030251-001.

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 22 March 2022 in accordance with Section 27(1) of the National Minimum Wage Act, 2000 and 2015. A Labour Court hearing took place on 24 August 2022. The following is the Determination of the Court.




DETERMINATION:

This is an appeal by David Walsh against decision ADJ-00019586 CA-00030251-001 of an Adjudication Officer in his complaints against his employer Kerry County Council. This complaint was made pursuant to a contravention of the National Minimum Wage Act 2000 (the Act). In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, David Walsh is referred to as the Complainant and Kerry County Council is referred to as the Respondent.

This claim was lodged with the WRC on the 14^th August 2019 the cognisable period for the purpose of the Act is 15^th February 2019 to the 14^th August 2019. There are twelve linked claims as follows: Organisation of Working Time Act 1997:

CA-00025500-001 lodged 1^st February 2019 cognisable period 2nd August 2018 to 1st February 2019.

CA-00029440-001 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-002 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July2019

CA-00029440-003 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-004 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-005 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-006 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-007 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-008 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029440-009 lodged 3^rd July 2019 cognisable period 4th January 2019 to 3^rd July 2019

CA-00029532-001 lodged 8^th July 2019 cognisable period 9th January 2019 to 8^th July 2019

CA-00029532-002 lodged 8^th July 2019 cognisable period 9th January 2019 to 8^th July 2019

The Court in linked case WTC/20/19 and related cases, determined that the time the Complainant spent on standby as a retained firefighter was not working time for the purpose of the Organisation of Working time Act 1997 or the Working time Directives.

Summary of Complainant’s submission

The Complainant submitted that this Act does not define working time rather it defines working hours. It is accepted that the Act states that time spent on call at a place other than a place of work does not constitute working hours. However, the Act does not address what the position is if the Complainant is on call at his place of work albeit that place is his home. Mr Purdy sought to rely on the case of Matzak where the CJEU had determined that in that case standby at his home was working time for the purpose of the working time directive. He also sought to rely on an English case Royal Mencap Society v Tomilson- Blake [2018] EWCA Civ1641 which considered the position of staff doing sleep in shifts.

Mr Purdy submitted when looked at in the round the Complainant is on standby at home because of the time restrictions placed on him in respect of getting to the fire station when an alert goes off. Mr Purdy submitted that the Court should find that the complainant was not paid the minimum rate of pay for those hours and therefore the Respondent was in breach of the Act.

Summary of Respondent’s submission.

Mr Hunt on behalf of the Respondent submitted that the Complainant has not identified a breach of the Act within the cognisable period. The Act at section 8 (2) (i) clearly states that “time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call”. The Complainant in this case is not required by the Respondent to spend his standby time at his place of work or at a place provided by the employer and therefore cannot rely on the provision in the Act. The British case Mencap referenced by the Complainant’s representative was overturned by the British Supreme Court. The Complainant was paid the appropriate rate which is in excess of that provided for under this Act. therefore, no breach of the Act occurred.

Discussion

The Court noting that this Act specifically excludes from the calculation of working time, hours spent on standby at a place other than the workplace or a place provided by the employer, for the purpose of determining pay within the reference period under this Act, and that there is no obligation on the Complainant to spent standby time at his workplace or a place provided by the employer, finds no breach occurred during the relevant period.

The Complainants appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
IK	______________________
8 November 2022	Deputy Chairman