Complainant

Respondent

Parties

Ana  Oliveira

B. Gallagher Ltd trading as the Station House Hotel

Complainant

Respondent

Anonymised Parties

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Representatives

  In person

Barry O’Mahony BL, instructed by Ryan McAllister ARAG Legal Protection Ltd

Act

Complaint/Dispute 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-00052034-001

01/08/2022

This complaint is that on eight occasions the Complainant was not provided with an 11-hour rest period in every 24 hours worked

Under oath the Complainant gave the following evidence:

She commenced working for the Respondent as a hotel receptionist in May 2022.

Her complaint is that when the Complainant was employed, between May 2022 and July 2022, on eight occasions she was not provided with an 11-hour rest period in every 24 hours worked. The breaches occurred on the following dates:

3rd / 4th May 2022

11th/ 12th May 2022

31 May/ 1 June 2022

5th/ 6th June 2022

7/th /8th June 2022

14th/15th June 2022

30th June/ 1 July 2022

4th/ 5th July 2022

On each occasion the Respondent required her to work a late shift (ending at 11pm) followed by a morning shift (commencing at 7am) which resulted in her not getting 11 hours of rest within a 24 hour period.

In response to the Respondents preliminary application that they were exempt (based on an unforeseen shift change and her job being an activity within tourism) the Complainant stated that not all the changes in shift were unexpected, some were planned for and in any event she was the only receptionist who was required to work a late followed by early shift.

The Respondent legal representative made the following legal submission:

1.       The entitlement to a daily rest period - of not less than 11 hours in each period of 24 hours of work - is a right that is set out in section 11 of the Organisation of Working Time Act 1997.

2.       There are however exemptions to this provision.

3.       There is an exemption where there has been a change in shift (as per section 4 of the Organisation of Working Time Act 1997 which provides

“…these sections (including section 11) shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11..” and

4.       There is another exemption from section 11 (under SI 21/1998) where the activity requires the “continuity of production of the provision of services” and includes the activity of tourism. (Schedule para 3 of SI 21/1998).

5.       If an exemption applies on either basis there is no breach if the employee receives compensatory rest as per Regulation 4 of

SI 21/1998.

6.       The Respondent relied on the Labour Court decision of Marchford Ltd v. Dariusz Olejarz DWT 1180 to support the finding that where there has been a shift change an exemption under section 4 may arise and where equivalent compensatory rest has been provided to the worker, no breach of section 11 occurs.

The Respondent’s Evidence

Mr. Gallagher, the managing director of the Respondent, under oath accepted that there were 8 occasions between May and July 2022 when the Complainant was asked to work the late shift and early shift however these arose out of unforeseen circumstances of illness or bereavement of other staff who the Complainant stepped in for.

Mr. Gallagher, said that it was not policy nor planned for the Complainant to work a late shift followed by an early shift but the summer months of May June and July in 2022 were unusual in that staff were either ill, in hospital or were suffering a bereavement which resulted in last minute shift changes.

On each occasion where the Complainant did not receive 11 hours rest time, she received compensatory rest periods immediately following that shift.

The unforeseen circumstances to explain why the Complainant’s shifts was changed were specifically as follows:

3rd / 4th May 2022 – The main receptionist mother-in-law became ill

11th/ 12th May 2022 – The manager went on annual leave

31 May/ 1 June 2022 – The manager became seriously ill

5th/ 6th June 2022 – The manager was on sick leave

7/th /8th June 2022 – The manager was on sick leave

14th/15th June 2022 – The manager was on sick leave and other staff were also out sick

30th June/ 1 July 2022 – The manager was on sick leave

4th/ 5th July 2022 – The manager was on sick leave

These unforeseen absences necessitated the Complainant’s shift to be changed.

The Respondent manager under oath accepted that the reason that the Complainant was required to work a late followed by early shift on 11th/ 12th May 2022 was because she was on annual leave.

The facts in this complaint are largely not in dispute.

The issue is whether or not the Respondent was entitled to an exemption based on either section 4 of the OWTA (a shift change) or because the Complainant’s role required a continuity of service and  was an activity of tourism.

I am satisfied that the Complainant received compensatory rest for all eight of the section 11 alleged breaches, however the right to an exemption is not only determined by whether compensatory rest has been provided. The Respondent right to apply an exemption must first be established.

I am not persuaded by the Respondent’s general application that any job that comes within the tourism sector is exempt from the obligation to provide a section 11 rest period. The Respondent has not provided me with any authority to support this defence and without which, I am not inclined to accept such a wide-reaching interpretation of Regulation 21/1998.

In respect of a section 4 exemption, I accept that in seven of the eight instances where a continuous rest period of 11 hours was not provided to the Complainant, that seven of those occasions arose from circumstances that were not planned. It is relevant that the employment in question only lasted 3 months and I accept the Respondent’s evidence that during that time, unforeseen challenges did arise and this required the Respondent to change the Complainant’s at the last minute.

I make no statutory interpretation of section 4 of the OWTA other than to apply what has been urged by the Respondent (the Complainant being unrepresented.) From a consideration of the wording of section 4 it is arguable that an interpretation could be made that an exemption only arises where the change of shift is decided by the worker as opposed to being required by the Employer (“each time he or she changes shift and cannot avail himself or herself of the rest period..in section 11.”  However I leave this point of interpretation for another case on the basis that Counsel for the Respondent urged the interpretation that a change of shift is not limited by one that is chosen by the worker and I was not provided with any other authorities on the interpretation of section 4 other than the test which was applied by the Labour Court in Marchford Ltd v. Dariusz Olejarz DWT 1180. For this reason I trust and rely on the construction of section 4 urged by the Respondent.

However, there was one occasion of alleged breach that arose as a result of the Respondent manager taking annual leave on 11th/ 12th May 2022. This was the sworn evidence of the Respondent’s manager.  It is not contended by the Respondent that this unforeseen because it was planned from before the Complainant started work. As this was not unforeseen I find that there was not a change of shift, but rather it was one that had been rostered from when the Complainant started work on 3 May 2022.

I therefore find that a section 11 breach did occur on 11th/ 12th May 2022 but that the Respondent was entitled to rely on a section 4 exemption in respect all of the other seven alleged section 11 breaches.

I find that the complaint - that the Respondent breached the Complainant’s right to a rest period (as per section 11 of the OWTA) on one occasion namely 11th / 12th May 2022  - to be well founded.

Under section 27 (3) of the OWTA for a breach of section 11 I may make an award of compensation not exceeding 2 years renumeration.

I make an award of compensation to the Complainant for this breach in the sum of €400.00. My reason for this is the fact that even though only one of the eight alleged breaches of section 11 succeeded, an award under section 27 (3) must be at a level which deters future breaches by the Respondent.  €400 is a proportionate remedial sum bearing in mind that the Complainant had only started work a week before this breach occurred and this breach was done without any apparent appreciation by the Respondent that they should not have managed their roster in this way.

This level of award balances the need to ensure that the right to daily rest is protected while accepting the challenging circumstances that the Respondent was in (in terms of staff absences) in the summer of 2022.

I find that the complaint that the Respondent breached the Complainant’s right to a rest period (as per section 11 of the OWTA) on 11th / 12th May 2022 is well founded.

I award the Complainant €400.00.

I find that the complaint that the Respondent breached the Complainant’s right to a rest period (as per section 11 of the OWTA) on 11th / 12th May 2022 is well founded.

I award the Complainant €400.00.

OWT – daily rest period - section 4 exemption – exemption under activity of tourism (S.I. 21/1998)