ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00042867

Parties:

Complaints:

Date of Adjudication Hearing:  15/05/2023

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.

In particular, the Complainant herein has referred a number of complaints under one Act - The Organisation of Working Time Act 1997 :

The Complainant has asserted that the Respondent Employer has contravened the OWT Act and in particular has alleged a contravention under Section 11 of the Act which concerns daily rest periods. Section 11 reads:

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant has alleged a contravention of Section 13 of the Act which relates weekly rest periods:

13.— (1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a)if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b)if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

The Complainant has alleged a contravention of Section 15 of the Act which relates to weekly working hours:

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) ..

The Complainant has further alleged a contravention of Section 17 of the Act which relates to provision of information in relation to working time:

17.-(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or as the case may be the day in each week that he or she proposes to require the employee to work,  of the times at which the employee will normally be required to start and finish work on each day or as the case may the day or days concerned of that week.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

• (i) Declare the complaint was or was not well founded;
• (ii) Require the Employer to comply with the relevant provision;
• (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   21st July 2023

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: