Complainant

Respondent

Parties

Melissa  Gallagher

HSE North West

Representatives

Niall O'Sullivan PNA

 Paul Hume and Edel Ellis, HSE

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-00062580-002

04/04/2024

CA-00062580-002

This is a complaint brought by the Complainant, a nurse, under the Organisation of Working Time Act (OWTA) 1997 in respect of the Respondent’s failure to provide her with rest breaks.

The Respondents deny the complaint and contend that rest breaks were provided at all times. 

The Respondent also asserts that the complaint is out of time.

An Industrial Relations dispute issued by the Complainant was withdrawn at the Adjudication on 2 December 2024.

The Complainant (MG) gave the following evidence under oath

MG is a native of Donegal who qualified in nursing in 2016. She initially worked in the national forensic mental health services until 2020 when she took up a post in Galway Roscommon mental health services. In September 2022, she returned to Donegal to take up a position as a staff nurse in Donegal intellectual disability services in a day Centre in Killybegs.

From starting her position September MG became concerned when she was told that her rest breaks were to be taken with the service users meaning that she would not get an uninterrupted break. There was no staff room available for staff to get away from the job and avail of rest breaks.

MG claims that this resulted in sometimes having to feed a service user, supervise a service user, cut up food for a service user at the same time as she was supposedly taking her rest breaks. This was nearly every day and every break. At times while eating her lunch or having a cup of tea, she was also feeding or helping a Service User. There was in reality no rest break provided.

MG was often the only nurse who was on duty. A trained clinician, such as a registered nurse is required to be present with service users at all times, even if there are other health care workers present. This is due to the obligation to keep the service users safe when they are in the centre.

MG said that there should be two nurses on each day shift, but that was often not the case.

MG said that in previous jobs staff could go to a separate room to shut their eyes,  to have a coffee or make a phone call and the break, whether 15 minutes or 30 minutes, was uninterrupted. However, in Clara House the Complainant was required to be on duty supervising service users during her rest breaks to make sure that a service user didn’t choke when they were eating or otherwise was unsafe.

MG raised her concerns a number of times with Management. It led her to her raising a grievance, the process of which started in March 2023 and ended in December 2023. The reason MG raised a grievance was because the centre was understaffed. There were not enough health care assistants. But it was MG who would be in trouble if a service user was exposed to a risk caused by insufficient staff numbers. The only way to safely deal with it was to reduce Service User numbers until more staff were recruited, but Management refused to do that. There was a negative confrontation on 19 November 2022 between the Complainant and CB, the manager. MG was treated as a troublemaker.

Her grievance which went through several stages, and also included a related IR grievance about breast feeding breaks. Neither grievance was upheld.

MG contended that what she was provided with did not constitute a rest break because she remained on duty during the supposed rest period which was in breach of the OWTA.

She did not receive compensatory rest periods. V occasionally she was allowed home early if during her rest break she had to intervene or take action to help other staff or a service user, but the rest breaches were not confined to that. Supervising service users who have ID is an onerous task. You are closely observing them all the time to ensure that nothing unsafe is going on. Management did not accept that the breaches were occurring each time the staff was supposedly on a rest break but in reality was doing supervisory work.

The Complainant was cross examined as follows:

MG had no previous experience working in the area of intellectual disability prior to her placement in September 2022.

MG notionally received rest breaks however she was supervising service users at the same time so she did not really get a break. It wasn’t possible to take a break. She asked if her break was actually a rest break, why was she not able to leave the dining room during her break?

MG accepted that the alleged rest break breaches occurred between September 2022 and the 13th of February 2023 when she went on sick leave, ie for approximately 5 months and that she left the service on the 21st of April 2023.

MG remembers two days where the service was not understaffed. The reason she remembers those days because they were so much easier to manage than every other working day there.

Throughout her service with the Respondent, she accepts that there were two vacancies one for a nurse and one for a healthcare assistant.

At the start of her employment, she was told that meals are taken in the dining room. MG did not know that this meant she would be working during her rest breaks.

When MG raised the issue with her manager CB she was told “you’re on a paid break which means a working break’

In previous placements on her breaks, she could go into a separate room so was no longer working and she could relax. Even 15 minutes of relaxation is a break.  In previous jobs, there was a staff room or a canteen or she could walk around the grounds. She accepts that she wore a panic alarm but during the rest period itself, she was not supervising and could switch off.

A witness, Lynne Stewart gave the following evidence under oath

LS worked in Clara house for one year which overlapped with when the Complainant was also working there.

LS corroborated that staff were told each morning by way of a staff notice board the times of their rest breaks.

LS corroborated that her rest breaks were taken alongside service users with them in the dining room. And that there was no chance to have an uninterrupted break.

LS said that the breaks were essentially the same as when they were working because they were expected to do supervise the service users even if at the same time as they were having a cup of tea or eating their own lunch.

LS said that where she now works staff take their breaks in a separate staff room. She accepts that the staff to service user ratio is similar to Clara house.

Submissions on behalf of the Complainant.

For the purposes of this Adjudication, it is conceded on behalf of the Complainant that the Respondent activity is exempt from the obligation to provide rest periods under section 3 (1) of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations.

However the Complainant submits that even if a Respondent activity is exempt, there is an obligation on the Respondent to provide the Complainant with rest breaks that may be reasonably regarded as equivalent to the statutory rest periods and breaks. This did not occur because the failure to provide breaks had become a cultural norm in Clara House.  Furthermore the Respondent accepts that compensatory breaks cannot be evidenced because the Respondent failed to keep any records of breaks that were allocated to staff during the time that the Complainant was employed there.  

Carmel Boyle (CB), manager of the Respondent gave the following evidence under oath.

CB is the manager of Clara house which is a day-care intellectual disability (ID) services day centre in Killybegs, Co. Donegal.

Service users with an ID attend this Day Centre from 9am until 4pm Monday to Thursday and 9 am until 4pm on Fridays.

The Complainant commenced employment as a staff nurse in Clara house in September 2022.

Her role was to work alongside healthcare assistants to provide a day service to service users with ID.

Statutory rest breaks (15 minutes in the morning 30 minutes at lunchtime and 15 minutes in the afternoon) were and are provided to all staff working in Clara House every day.

Each staff member is made aware every morning when they go into work, the time of their rest periods which is allocated in time slots and posted on staff noticeboard.

During a rest break if a staff member needs to leave the building, CB or another member of Management needs to be informed because the supervision of service users, needs to be continuous. It is only, if and when adequate cover is in place, that a staff member may be permitted to leave the building during their rest break. This is in case there is an emergency or if a staff member calls for assistance. Rest breaks are usually required to be taken by staff in a shared dining room alongside service users. Service Users treat Clara House as their home and for this reason there is no separate room into which staff may go and Service Users may not. That is the nature of the care that is provided to Service Users with an ID.

If an employee’s rest period is broken or is uninterrupted because a staff member is required  to assist another staff member or to help a Service User during their breaks, that that interruption is then reported to CB who either ensures that additional TOIL is paid to that staff member  or the staff members is permitted to leave to go home at the end of the day 15 minutes earlier or whatever time that the break was interrupted for. In this way compensatory rest periods are provided.

CB was cross-examined as follows

When asked is there a place to go for staff for an uninterrupted break during rest breaks during the day, CB answered that there was not.

When asked if a staff member were permitted to leave the building to go to their car for their rest periods, she answered that they could, so long as there was enough supervisory cover within the dining room and that they had permission. If there was no cover then they would not be allowed to leave the building.

When asked if any records kept with respect to the rest periods that were allocated to staff or taken by staff or whether break interruptions were recorded,  CB answered that there were no such records were kept.

When asked, did the service ever become short staffed resulting in staff being unable to take rest periods CB answered that the service can be short-staffed, but it was not possible to reduce the service users who come to the centre each day. CB said that if they became understaffed, she would go on the floor to supervise.

CB accepted that the service had staff vacancies which it was not possible to fill. It is not easy to recruit staff to work in ID services.

Staff know from the noticeboard every day their rest break times,  but when they are on their break, they are expected to remain in the dining room to supervise the service users, particularly when service users are eating because of the choke risk for some service users. There is no other way to manage the risk.

If a staff member told CB that she did not get a sufficient break that day, then member would be allowed to leave early at the end of that day. In that way, the staff member received compensatory rest periods, which is permitted under the OWTA.

End of evidence

Submissions on behalf of the Respondent

The following submission points were made on behalf of the Respondent.

Time. The alleged breaches occurred between September 2022 and 13 February 2023, when the Complainant went on sick leave and did not return to work in Clara House. The WRC complaint was filed on 4 April 2024, therefore the complaints are outside 12 months from the date of the alleged breach.

Adjournment Application

The Respondent applied for an adjournment pending the outcome of collective bargaining discussions that are underway before the Labour Court, a meeting in respect of which, is pending.

The Respondent applied for an adjournment on a second basis, that a WRC decision (Adj 46783 Jackie Deevy v. HSE) issued on 16 November 2024 (between the first and second hearing dates of this Adjudication) dealt with similar issues and this decision is under appeal by the Respondent to the Labour Court. A hearing date is awaited. The Respondent requested that the present Adjudication be adjourned until the outcome of that appeal and clarification of the legal position because this decision impacts thousands of health care professionals employed by the Respondent, not only in the field of ID.

Substantive Defence

The Respondent submits that Rest breaks were applied by the Respondent and or if the rest breaks afforded to the Complainant did not meet the requirements of OWTA obligations, the service provided by the Respondent is an exempt category under section 3 (1) of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations because (applying the criteria of the Schedule of those Regulations) the Complainant’ employment is (Article 3)  “an activity falling within a sector of… the public service, the nature of which is such that employees are directly involved in ensuring the continuity of…the provision of service and is relating to the care of persons in a hospital or similar establishment.”

The Respondent submits that the provision of day care to service users with ID is an exempted activity and that compensatory rest periods were provided to the Complainant.

In my investigation of this complaint I am required to decide the following issues:

1.      Is the complaint out of time?

2.      Was it appropriate to refuse the Respondent’s adjournment application?

3.      Did the Respondent provide the Complainant with rest periods?

4.      Is the Respondent activity exempt under section 3 (1) of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations and if so, were compensatory rest periods provided to the Complainant?

1.      Time

The alleged rest breaches occurred between September 2022 and 20 April 2023 (when the Complainant left the Respondent service.) A WRC complaint issued on 4 April 2024 which is outside 6-month post breach but just inside 12 months post breach period.

While I accept the generally accepted view - that the exercise of internal grievances do not stop time running against a WRC time limit (Brother of Charity Services Galway v. O’Toole EDA 177) - in this case the Complainant’s internal grievance encompassed not the rest breach complaint but also an inextricably linked IR complaint in respect of the Respondent’s failure to provide her with breast feeding breaks during her working day (in accordance with HSE policy on breast feeding breaks.) Both her OWTA complaint and IR dispute to the WRC arose out of the one and same internal grievance, and both related to the taking of breaks the outcome of which was in December 2023.

I am satisfied that the Complainant could not have referred her IR dispute to the WRC until that process was concluded (because of the duty to exhaust internal remedies) and that the related rest period grievance travelled with that grievance. However, when she lodged her internal grievance in March 2022 she could not have known that the breach for a breast feeding break would turn into an IR complaint whereas the ordinary rest breach would become an employment rights breach under the OWTA. I am satisfied that her rest period breach continued until the outcome of her internal grievance issued on 4 December 2023, in which neither her rest period or IR grievance were upheld. I am satisfied that her complaint into rest breaches was a continuing one until the internal grievance was decided and when her WRC complaint issued on 4 April 2024 that it was within the 6 months post breach time limit.

Alternatively I am satisfied that the reason that the Complainant did not pursue her rest breach complaint until after 6 months but still within 12 months post breach, was due to a lengthy 9 month internal grievance process, which I am satisfied provides me with reasonable cause to extend time for the Complainant to present her complaint.

I am satisfied that the complaint was brought within time.

2.      Was it appropriate to refuse the Respondents application for an adjournment.

As recorded above an adjournment was sought by the Respondent on two bases.

I am satisfied that the WRC decision in Adj 46783 [Jackie Deevy  v. HSE] is a decision involving similar facts and the same Respondent and I accept that the Respondent is appealing that decision to the Labour Court.

However the present Complainant has a right for her complaint to be investigated and be decided from which an appeal to the Labour Court may or may not also be raised. The WRC has a statutory duty to investigate complaints that are brought before it and unless the Labour Court determination in the Deevy case was pending imminently I am not persuaded to adjourn this Adjudication on an unknown time-line of an appeal in a similar case which the Labour Court is yet to hear.

Likewise just because the issue of rest periods may be a component part of an ongoing collective bargaining process is too uncertain a basis for an Adjudication to be delayed until it is concluded.

It was for these reasons that I refused the Respondent’s application for an adjournment.

3.      Did the Respondent provide the Complainant with rest periods?

I am not satisfied that the Respondent provided the Complainant with statutory rest periods as protected by section 12 of the OWTA.

The test for what constitutes a rest period is found in the interpretation section 2(1) of the OWTA. This section was applied in the WRC decision, Adj 33463 Duffy v. Camphill Communities of Ireland.

In that decision a “rest period” is defined in section 2(1) of the OWTA as any time that is not working time.

“Working Time” is defined as any time that the employee is

(a)    At his or her place of work or at this or her employer’s disposal and

(b)   Be carrying on or performing the activities or duties of his or her work.

In the Labour Court decision of Tribune Printing and Publishing Group v. Graphical Print and Media Union (DWT 6/2004) the Labour Court held that not only is there an obligation on an employer to ensure that their employees receive rest break but also 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”

In the present complaint during the 15 minutes/30 minutes/15 minutes that were allocated to the Complainant each morning via the staff notice board as being her rest period, complied in name only with the provisions of section 12 of the OWTA. In reality the rest breaks were not rest periods because they were working time.

During what were ostensible rest periods the Complainant had to remain at her place of work, be at the Respondent’s disposal and supervise service users by remaining in the same room (and sometimes feed them and intervene to help them) if and when the need arose. I am satisfied that these periods of time did not constitute rest periods and that they were working time.

Working in disability services can be exhausting work. At the risk of understatement rest breaks are particularly necessary for staff working within this area.

I am satisfied that the Complainant was not provided with rest breaks which complied with section 12 of the OWTA.

4.      Is the Respondent activity exempt under section 3 (1) of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations and if so, were compensatory rest periods provided to the Complainant?

I am not convinced that the Complainant is correct in conceding that the Respondent activity is exempt under section 3 (1) of SI 21/1998 Organisation of Working Time (General Exemptions) Regulations, however as she has expressed this concession, for the purpose of this Adjudication, while I do not make such a finding, I am obliged to accept that position.

I am not satisfied that the Respondent has discharged the obligation to prove that compensatory rest was provided to the Complainant.

Applying section 25(4) of the OWTA which states that in the absence of working time records the onus is on the employer to show compliance with the Act that compensatory rest was provided to the Complainant, where the Respondent concedes that no such records were kept and where the Managers evidence is that it was only if the rest break (that took place in the dining room where the staff were supervising) was interrupted requiring action by a staff member that compensatory breaks were provided and not outside that, given the evidence of the Complainant, as corroborated by LS that she and other staff most days were required to supervise service users through their breaks, I am satisfied that compensatory breaks were not provided to the Complainant.

And the evidence of SB was it was only if a staff member had their break interrupted by an intervention as opposed to when the Complainant was supervising. However supervising is work. It requires a worker to be on a state of alert to respond to an emergency. This is not rest. It is unclear why staff were required to take their rest breaks in the dining room with the service users unless that is so.

I am satisfied that the Respondent has not discharged the onus of proving that compensatory rest periods was provided to the Complainant each day that she was required to work though her rest periods.

Based on the above reasons I am satisfied that this complaint is well founded.

In deciding on what is an appropriate level of award to make to the Complainant I have taken into account that breaches under section 12 of the OWTA effected the Complainant on a daily basis during the time she worked in Clara House but that she only worked there for 5 months.

Bearing in mind the CJEU decisions on the necessity that compensation awards are at a level to “be effective and to have a deterrent effect” [paragraph 28 of the judgment in Von Colson and Kamann v. Land Nordhein-Westfalen ECR 1984-01891] and becausethe award ceiling that may be made under section 27(3) of the OWTA is two years remuneration,  I am inclined to follow the same approach as my colleague did in the case of Adj. 46783.

I consider that the appropriate award that should be awarded to the Complainant is ten weeks gross salary, which is agreed is the sum of €9380.00.

This complaint is well founded. I award the Complainant €9380.00.

Organisation of Working Time Act 1997 [OWTA] Rest breaks – compensatory rest periods.