ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047313
Parties:
| Complainant | Respondent |
Parties | Daniel Picton | Bord Na Mona Recycling Limited |
Representatives | Self-Represented | Ciara McDermott Arthur Cox |
Complaint(s):
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-00058358-001 | 17/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058358-002 | 17/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058358-003 | 17/08/2023 |
Date of Adjudication Hearing: 12/01/2024
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
At the hearing the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are held in public and, in most cases, decisions are not anonymised.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.
The parties were given an opportunity to cross examine the evidence.
All of the evidence, submissions submitted have been considered herein.
While the parties are named in this decision, for the remainder of the document, I will refer to Mr Daniel Picton as “the Complainant” and Bord Na Mona Recycling Limited as “the Respondent.”
The Complainant was self-represented.
The Respondent was represented by Ciara McDermott of Arthur Cox LLP.
Background:
On the 17 August 2023 the Complainant submitted his complaints to the Workplace Relations Commission alleging the Respondent made a number of breaches in relation to daily and weekly rest breaks under the Organisation of Working Time Act 1997 (the “1997 Act”).
In response, the Respondent contends that the Complainant’s claims in respect of daily and weekly rest breaks prior to 16 February 2023 are statute barred and the Complainant has not and cannot demonstrate reasonable cause to extend the statutory time limit.
The Respondent accepts that a technical breach of the 1997 Act occurred in respect of the Complainant’s daily rest breaks but submits this breach was a rare occurrence and not a deliberate act.
The Respondent further submits that no breach of Section 13 or of Section 15 of the 1997 Act has occurred during the cognisable period and that the Complainant’s claim should be dismissed.
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Summary of Complainant’s Case:
Preliminary Issues-Time Limits In relation to the issue of time limits the Complainant accepted and did not dispute the Respodents position that the majority of the alleged breaches that he cited and noted by way of supporting documentation in his submission happened prior to the 16 February 2023.
In this regard, the Complainant a lay litigant was informed at the hearing that an adjudication officer may entertain a complaint or dispute after the expiration of the cognisable period (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
In response, the Complainant told the hearing that he was for some time not aware of the Workplace Relations Commission, and it was only after he became aware, and the situation continued that he then decided to lodge a complaint to the Workplace Relations Commission on the 17 August 2023.
It is in this context that, the Complainant submits that the Adjudicator take into account the breaches that he believes took place prior to 16 February 2023.
Background On the 17 August 2023 the Complainant submitted his complaints to the Workplace Relations Commission alleging the Respondent made a number of breaches in relation to daily and weekly rest breaks under the Organisation of Working Time Act 1997 (the “1997 Act”).
CA-00058358-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
In regard to the first complaint, the Complainant submits that he did not get a daily rest period, contrary to Section 11 of the 1997 and that he did not receive adequate weekly rest breaks, contrary to Section 13 of the 1997 Act
The Complainant further submits that as he has demonstrated by way of his supporting documentation, he was made to work on several occasions where he did not receive his 11 hours rest break.
The Complainant told the hearing that he informed management of this on numerous occasions, but nothing was done to remedy the situation.
In this regard, while the Complainant accepted that much of the examples that he provided by way of pay slips and time sheets to his support his complaint happened prior to the end of the cognisable period, he again stated that he was not aware of the time limits and if he was aware he would have submitted a complaint to the Workplace Relations Commission at an earlier date.
The Complainant requested that the Adjudicator take this into account in his decision.
CA-00058358-002-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
The Complainant submitted that on numerous occasions he was required to work 3 weekends in a row with only receiving 1 day off each week.
As a result of this, the Complainant told the hearing that in a 21-day period he received just 3 days off.
In support of the Complainants position, he referred to the documentation he submitted that included a number of time sheets and pay slips.
The Complainant informed the hearing that when he raised concerns with his manager about the hours he was working, he alleges that no follow up action or solution was put forward to remedy the situation.
While the Complainant accepted that the examples that he provided by way of pay slips and time sheets to his support his complaint happened prior to the end of the cognisable period, he again stated that he was not aware of the time limits and if he was aware he would have submitted his complaint to the Workplace Relations Commission at an earlier date.
The Complainant requested that the Adjudicator take this into account in his decision.
CA-00058358-003-Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The Complainant submitted that he is required to work more than the maximum permitted number of hours permissible.
The Complainant told the hearing that on running a report over the period of 26 weeks, he found that he worked over the average of 48 hours.
The Complainant further told the hearing that he found on average that he worked nearly 50 hours per week over 26 weeks.
In support of his position, the Complainant made reference to his documentation he submitted which showed the hours he worked. In addition, he also referenced documentation by way of pay slips and time sheets over a 7-month period.
The Complainant submitted that he spoke to five different mangers in relation to his hours and he felt they done absolutely nothing to try reduce his hours.
As a result of the ongoing issues in relation to the Complainants rest periods and hours worked, he felt tired and stressed which required him to consult and meet with his GP.
In support of this claim and in response to the Respodents claim that they accepted there was a breach in albeit nominal and on the technical end of the spectrum and is not egregious, the Complainant referred to medical documentation he submitted in addition to his complaint in which his GP in a letter to the Respondent on 19 July 2023 noting the stress the Complainant informed him he was under due to the alleged amount of hours that he needed to work and the unpredictability and short notice of same also.
In this regard, the Complainant further stated that working the extra hours had an effect on his stress levels and reduced the time he could spend with his family and requested the Adjudicator Officer take that into account in his decision.
In his closing summary, the Complainant believes that the Respondent made a number of breaches across the three complaints as referred to in his complaint for and during the hearing.
The Complainant noted again that while he accepts that much of the examples are outside the cognisable period, he stated again that he was not aware the Workplace Relations Commission even existed and if he knew sooner the appropriate forum in which he could submit his complaint and the time frame also in which he should submit a complaint after the alleged breach he would have done so earlier.
In closing, the Complainant also requested that as a result of the ongoing issues in relation to his entitlement to rest periods and hours worked, he felt tired and stressed which required him to consult and meet with his GP.
In addition, the Complainant concluded that all efforts to resolve the matter with the management were ignored. |
Summary of Respondent’s Case:
Introduction The Respondent on the date of the hearing produced a comprehensive submission outlining its response to the complaints the Complainant alleges the Respondent were in breach of in relation to the Organisation of Working Time Act 1997 (the “1997 Act”):
In this regard the Respondent accepts that breaches of the 1997 Act occurred for a short period of time.
Notwithstanding this, it is the Respondent position that that the issues identified by the Complainant were relatively minor in nature, have been rectified and only one breach of the 1997 Act occurred during the six months prior to submission of the Complaint Form and all other matters are therefore time barred.
Background By way of background information, the Respondent submits that its business principally comprises waste management services in Leinster and North Munster. Its business is managed from a head office in Newbridge, Co. Kildare and it operates depots in Portlaoise, Tullamore, Nenagh, Navan, Lusk, and Rosslare as well as three Civic Amenity Centres in Kildare allowing it to provide daily waste collection services. Nationwide it employs more than 300 employees.
The Respondent is a subsidiary of Bord na Móna Plc. In this regard, the Respondent explained to the hearing that the Complainant commenced employment in the Respondent’s site at Kilrane Business Park in Rosslare, Co. Wexford as an RCV Operative on 11 April 2022.
On or about January to September 2023, the Respondent submitted that its electronic clocking system was inoperative due to a technical issue.
During this period the Respondent told the hearing that the Complainant would message his working hours by text message to his manager weekly and the hours were then input into the Respondent’s payroll system.
The hours submitted by the Complainant were accepted as accurate.
The Complainant sets out that he worked 1,293 hours in the 26-week reference period, resulting in an average 49.73 hours per week.
In this regard, the Respondent submits that the Complainant was paid in respect of all of the hours he submitted to the Respondent’s and has not contested same.
The Respondent accepts the accuracy of the hours the Complainant documented by hand and submitted to it for payment while its electronic clocking system was out of commission.
However, the Respondent further submits that it is unable to verify the accuracy of the hours documented by the Complainant.
In that context, were the Complainant to have inflated his hours of work in any way, any such inflation would impact the total number of hours in excess of the statutory maximum the Complainant says he worked during the applicable reference period.
For the avoidance of any doubt, the Respondent does not allege any such inflation arose.
A copy of the working hours recorded by the Complainant and provided to the Respondent in the six months prior to the submission of the Complaint Form.
These hours have been collated by reference to the Complainant’s payslips during the relevant period.
The Complainant resigned from his employment with the Respondent in August 2023. His final date of employment was 31 August 2023.
Preliminary Issue-Time Limits The Respondent submits that Section 41 of the Workplace Relation Act 2015 provides: “….(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
The Respondent submitted at the hearing that no application to extend time has been made by or referenced by the Complainant.
The records submitted by the Complainant to the WRC by email on 25 August 2023 relate to hours worked between October 2022 and 2 February 2023, which period is more than six months before the date of submission of the Complaint Form.
It in this context the Respondent submits that records relating to the Complainant’s working time on dates that are more than six months prior to the period of the 17 August 2023 to 16 February 2023 cannot be considered by the Adjudication Officer as evidence of a breach of the Section 11 and Section 13 of the 1997 Act.
CA-00058358-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
Daily rest periods It is in this context the Respondent submits that Section 11 of the 1997 Act states “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 according to the Respondent sets out in his Complaint Form that “I have been made to work on several occasions where I am not getting my 11 hours rest break, and this can be proved by my pay slips and time sheets”.
In correspondence to the WRC on 25 August 2023 from the Complainant, the Respondent notes that he wrote “I never had rest periods of 11hrs on four different occasions” and attached WhatsApp messages between the Complainant and his line manager dated between October 2022 and 2 February 2023.
Notwithstanding the preliminary points made above the Respondent respectfully submits that any complaint pre-dating 16 February 2023 is statute barred, but nonetheless accepts that the Complainant did not always receive a rest break of 11 consecutive hours during the period its time recording system was inoperative.
In support of its position that this was just a temporary issue, the Respondent made reference to its supporting documentation.
On that note, the Respondent told the hearing that having regard to the 6-month period prior to the submission of the Complaint Form, an analysis of the working time records submitted by the Complainant to the Respondent identifies one occasion on which the Complainant did not receive an 11 hour rest period between shifts – his shift finished at 18.15pm on 17 July 2023 and he resumed work at 04.45am on 18 July 2023.
It is accepted by the Respondent that this amounts to a 10.5-hour rest period and a breach of the 1997 Act by some 30 minutes.
CA-00058358-002-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
Weekly Rest Breaks
In relation to the Complainants second complaint, the Respondent referred to Section 13 (2) of the 1997 Act which provides that “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”
On this front, the Respondent notes that the Complainant contends that “I sometimes worked 3 weekends in a row…so in 21 days had 3 days off”.
In correspondence referred to the WRC on 25 August 2023, the Complainant according to the Respondent refers to dates between Monday 21 November 2022 to Sunday 11 December 2022.
Notwithstanding the preliminary points made above and that any complaint pre-dating 16 February 2023 is statute barred, the Respondent’s internal audit team reviewed a complaint in respect of this issue and determined that no such breach of the 1997 Act occurred.
Nonetheless, in support of the Respodents position, having regard to the 6-month period prior to the submission of the Complaint Form, an analysis of the Complainant’s working time records shows that the Complainant received 24 consecutive hours break in each 7-day period he worked and no breach of the act took place within the cognisable period between 16 February 2023 and 17 August 2023 and its on that basis ,the Respondent respectfully submits that the Complainant’s claim in this regard be dismissed.
CA-00058358-003-Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Weekly Working Hours
Section 15 of the 1997 Act sets out the following: “(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”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. (3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.
A reference period shall not include— (a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee), (aa) any period during which the employee was absent from work while on parental leave, force majeure leave, leave for medical care purposes, domestic violence leave or an approved flexible working arrangement within the meaning of the Parental Leave Act 1998 or carer’s leave within the meaning of the Carer’s Leave Act, 2001, (b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995, or (c) any sick leave taken by the employee concerned.
(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))— (a) the weekly working hours of which vary on a seasonal basis, or (b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature, then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).”
In determining the appropriate reference period for the purposes of calculating the Complainant’s working time, the Respondent relies on the specific derogation in respect of household refuse collection contained in Article 17 of Council Directive 93/104/EC of 23 November 1993, as set out in the Sixth Schedule of the 1997 Act: “2. Derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:… (c) in the case of activities involving the need for continuity of service or production, particularly: …(iv) gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;
It is submitted that the Complainant has acknowledged and accepted that the reference period for the purposes of his complaint is a 26-week period.
A copy of the working hours recorded by the Complainant between 3 November 2022 (week 43) and 24 April 2023 (week 17) is contained at. A record of these hours was submitted by the Complainant to the Respondent as part of a previous complaint made directly to the Respondent, which was thoroughly investigated.
As part of its internal investigation of the above complaint, the Respondent carried out an analysis of employee Whatsapp messages and data from its time management system, determining that the Complainant worked an average of 49.7 hours during the period 3 November 2022 and 24 April 2023.
The Respondent accepts that during this period, the Complainant worked on average 1.7 hours longer than the maximum number of hours permitted under Section 15 of the 1997 and accepts that this amounts to a breach of the 1997 Act.
The Respondent submits that the Complainant was always compensated for working overtime in this context and respectfully suggests that its breach is at the nominal and technical end of the spectrum and is not egregious.
Notwithstanding the above and based on the date of submission of the Complaint Form, the Respondent submits that the cognisable period for the purposes of the Complainant’s claim under Section 15 of the 1997 Act is the period 16 February 2023 to 17 August 2023, being 26 weeks prior to the date the Complaint Form was submitted to the Workplace Relations Commission. T
The Respondent relies on the decisions in John Nolan v Kilkenny County Council (ADJ-00043956), Jinxiu Zheng v Ming Feng Limited (ADJ-00046547) and Wayne Timmons v Clare County Council (ADJ-00035162) (Appendices 11, 12, 13) “the cognisable period…is the six-month period prior to the referral of the claim”.
In the 26-week period between 16 February 2023 and 17 August 2023, the Complainant worked a total of 1,175 hours and 45 minutes based on a review of his payslips during that period.
The Complainant was on annual leave for a total of four days during the period. The Complainant’s average number of working hours per week during this period amounts to a total of 47 hours and falls below the 48-hour maximum set out under the 1997 Act.
On the basis of the above, the Respondent respectfully submits that the Complainant’s claim be dismissed.
Redress The Respondent submitted that If the Adjudication Officer does determine that there has been a breach of Section 15 (CA-00058358 – 003) of the 1997 Act during the cognisable period and in respect of the admitted breach of Section 11 (CA-00058358 – 001), it is submitted that any award of compensation should take account of the fact that (i) the Complainant willingly worked and was paid for overtime hours and as the truck driver he did determine his exact start and finish times (ii) the Respondent’s operates an electronic clocking system, which was temporarily inoperative during the period in question (iii) the average hours worked in excess of the statutory maximum were nominal (iv) the Respondent has been forthright and acknowledges the issues it had.
We respectfully request that the Adjudication Officer should also take into account the fact that the Respondent does generally ensure compliance with the requirements of the 1997 Act and that following receipt of an internal complaint from the Complainant, further remedial steps have been put in place to resolve the issues he identified.
While the Labour Court acknowledges that redress should compensate Complainant’s not only for financial loss but should also act as a deterrent against future infractions, it has also clearly stated that “compensation over and above the economic value of an entitlement under the Act” is only appropriate where there has been “a deliberate and conscious breach of a worker’s rights” and that awards should be proportionate (Connaughton & Sons Landscaping Ltd v Stolarczyk DWT 107/2012.
The Respondent relies on the Labour Court decision of Stablefield Ltd v Manciu DWT 24/2019 (Appendix 15) whereby the Court considered the concept of proportionality in determining the scale of a compensation award for a breach of Section 15 of the 1997 Act. In circumstances where “a working week of at least 80 hours was the regular reality” for the Complainant the Court stated that awards “must reflect the gravity of the breaches” and awarded compensation of €20,000. This case the Respondent told the hearing being the precise opposite of the employer having forthrightly admitted breaches of legislation.
Conclusion The Respondent concluded that the Complainant’s claims in respect of daily and weekly rest breaks prior to 16 February 2023 are statute barred and the Complainant has not and cannot demonstrate reasonable cause to extend the statutory time limit.
The Respondent accepts that a technical breach of the 1997 Act occurred in respect of the Complainant’s daily rest breaks but submits this breach was a rare occurrence and not a deliberate act.
The Respondent submits that no breach of Section 13 or of Section 15 of the 1997 Act has occurred during the cognisable period and that the Complainant’s claim should be dismissed.
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Findings and Conclusions:
On the 17 August 2023 the Complainant submitted his complaints to the Workplace Relations Commission alleging the Respondent made a number of breaches in relation to daily and weekly rest breaks under the Organisation of Working Time Act 1997 (the “1997 Act”).
While the Respondent accepts that a breach at nominal and technical end of the spectrum occurred on some aspects of the Complainants complaint, the Respondent contends that the breach was a rare occurrence and not a deliberate act.
In addition, the Respondent submits that the Complainant’s claims in respect of daily and weekly rest breaks prior to 16 February 2023 are statute barred and the Complainant has not and cannot demonstrate reasonable cause to extend the statutory time limit.
The Respondent further submits that no breach of Section 13 or of Section 15 of the 1997 Act has occurred during the cognisable period and that the Complainant’s claim should be dismissed.
Preliminary Issue-Time Limits The Respondent submitted that the records submitted by the Complainant to the WRC by email on 25 August 2023 relate to hours worked between October 2022 and 02 February 2023, which period is more than six months before the date of submission of the Complaint Form.
Records relating to the Complainant’s working time on dates that are more than six months prior to 17 August 2023 16 February 2023 cannot be considered by the Adjudication Officer as evidence of a breach of the Section 11 and Section 13 of the 1997 Act.
The Complainant accepted and did not dispute the Respodents position that the majority of the alleged breaches that he cited and noted by way of support documentation in regards to the alleged breaches happened prior to 16 February 2023.
In this regard, the Complainant told the hearing that he was for some time not aware of the Workplace Relations Commission, and it was only after he became aware, and the situation continued that he then decided to lodge a complaint to the Workplace Relations Commission on the 17 August 2023.
It is in this context that, the Complainant submits that the Adjudicator take into account the breaches that he believes took place prior to 16 February 2023.
In this regard Section 41 of the Workplace Relation Act 2015 provides: “….(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
In considering whether or not there are grounds for extending the time, what the Complainant has to show is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.
I have reviewed the presentations and submissions of the parties with respect to the time limits in relation to the cognisable period.
I do not accept the Complainant’s contention that his delay in submitting his complaint as a result of not been aware of the Workplace Relations Commission as a justifiable excuse for the delay.
The Complainant for a long period of time was of the view that the Respondent had made a number of breaches in relation to his entitlement to daily and weekly rest breaks under the Organisation of Working Time Act 1997,therefore I see no reason why the Complainant did not go about establishing where and how he could go about lodging a complaint to the Workplace Relations Commission earlier than he had done so.
Additionally, while I also note the Complainants claim he was unaware of the time limits requirement time and never had any dealings with the Workplace Relations Commission in the past, I cannot accept that ignorance of the law in justifying the delay in making the complaint.
Accordingly, I find that the Complainant has failed to meet the test of reasonable cause as set out by the Labour Court in DWT0338 Cementation Skansa v Carroll.
The Complainant has also failed to offer a compelling explanation for the delay in submitting the complaint.
Accordingly, I must conclude the alleged breaches that took place prior to the 16 February 2023 is out of time, and I will just be investigating the alleged breaches that took place according to the Complainant in relation to cognisable period from the 16 February 2023 to 17 August 2023.
CA-00058358-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
The Complainant submitted that he did not get a daily rest period, contrary to Section 11 of the 1997 and that he did not receive adequate weekly rest breaks, contrary to Section 13 of the 1997 Act.
In this regard, the issue in this is whether the Complainant received a daily rest period to which he was entitled under during the cognisable period.
The Complainant in support of his position referenced by way of supporting documentation that he was made to work on several occasions where he did not receive his 11 hours rest break.
The Complainant accepted that much of the examples that he provided by way of pay slips and time sheets to support his complaint happened prior to the end of the cognisable period.
In this regard, I note while the Respondent submitted that any complaint pre-dating 16 February 2023 is statute barred which I have already ruled on, the Respondent accepts that the Complainant did not always receive a rest break of 11 consecutive hours during the period its time recording system was inoperative.
In support of its position that this was just a temporary issue, the Respondent made reference to its supporting documentation which I accept as genuine.
In addition the Respondent told the hearing that having regard to the 6-month period prior to the submission of the Complaint Form, an analysis of the working time records submitted by the Complainant to the Respondent identifies one occasion on which the Complainant did not receive an 11 hour rest period between shifts – his shift finished at 18.15pm on 17 July 2023 and he resumed work at 04.45am on 18 July 2023.
It is accepted by the Respondent that this amounts to a 10.5-hour rest period and a breach of the 1997 Act by some 30 minutes.
In this regard, the Complainant accepted that much of examples predated the 16 of February and he did not abduce any evidence at the hearing or make a case in which I was satisfied with that demonstrated any other breach occurred within the cognisable period other than on the 17 July 2023.
Section 11 of the 1997 Act states “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”.
Based upon the Respondent’s self-admitted of its obligations albeit on the minor end of the scale, I find that the Respondent made a breach of Organisation of Working Time Act, 1997 relating to rest periods.
The complaint is well founded, and I order the Respondent to pay the Complainant €500 in compensation which I consider to be just and equitable having regard to all the circumstances.
Decision: Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 & Section 27(3) of the Organisation of Working Time Act 1997 as cited above. For the aforesaid reasons, I find this complaint to be well-founded and I order the Respondent to pay the Complainant €500 in in compensation as being just and equitable in all the circumstances.
CA-00058358-002-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997,
This is a complaint of a contravention of section 13 of the Act in that the Complainant was not provided with weekly rest periods.
The Complainant submitted that on numerous occasions he was required to work 3 weekends in a row with only receiving 1 day off each week.
As a result of this, the Complainant told the hearing that in a 21-day period he received just 3 days off.
In support of the Complainants position, he referred to the documentation he submitted by way of time sheets and pay slips.
The Complainant informed the hearing that when he raised concerns with his manager about the hours he was working, he alleges that no follow up action or solution was put forward to remedy the situation.
While the Complainant accepted again that the examples that he provided by way of pay slips and time sheets to his support his complaint happened prior to the end of the cognisable period, he again stated that he was not aware of the time limits and if he was aware he would have submitted his complaint to the Workplace Relations Commission at an earlier date.
In response, the Respondent referred to Section 13 (2) of the 1997 Act which provides that “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”
On this front, the Respondent notes that the Complainant contends that “I sometimes worked 3 weekends in a row…so in 21 days had 3 days off”.
In correspondence referred to the WRC on 25 August 2023, the Complainant according to the Respondent refers to dates between Monday 21 November 2022 to Sunday 11 December 2022. Notwithstanding the preliminary points made above and that any complaint pre-dating 16 February 2023 is statute barred, the Respondent’s internal audit team reviewed a complaint in respect of this issue and determined that no such breach of the 1997 Act occurred.
Nonetheless, in support of the Respodents position, having regard to the 6-month period prior to the submission of the Complaint Form, an analysis of the Complainant’s working time records shows that the Complainant received 24 consecutive hours break in each 7-day period he worked and no breach of the act took place within the cognisable period between 16 February 2023 and 17 August 2023 and its on that basis ,the Respondent respectfully submits that the Complainant’s claim in this regard be dismissed.
While I note the Complainant submitted documentation that refers to dates of alleged breaches before the cognisable period of 16 February 2023 to 17 August 2023, no plausible case or further documentation was put forward at the hearing by the Complainant that demonstrated that any contraventions occurred within the referable period.
In addition, no plausible case for an extension of time was made either in relation to section 41(8) of the Workplace Relations Act, 2015 Act.
Decision: Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 & Section 27(3) of the Organisation of Working Time Act 1997 as cited above. For the aforesaid reasons, I have found that the claim is not well founded.
CA-00058358-003-Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
The Complainant submitted that he is required to work more than the maximum permitted number of hours permissible.
The Complainant told the hearing that on running a report over the period of 26 weeks, he found that he worked over the average of 48 hours.
The Complainant further told the hearing that he found on average he found that he worked nearly 50 hours per week over 26 weeks.
In support of his position, the Complainant made reference to his documentation he submitted which showed the hours he worked. In addition, he also referenced documentation by way of pay slips and time sheets over a 7-month period.
The Respondent accepts that during this period, the Complainant worked on average 1.7 hours longer than the maximum number of hours permitted under Section 15 of the 1997 and accepts that this amounts to a breach of the 1997 Act.
The Respondent submits that the Complainant was always compensated for working overtime in this context and respectfully suggests that its breach is at the nominal and technical end of the spectrum and is not egregious.
Notwithstanding the above and based on the date of submission of the Complaint Form, the Respondent submitted that the cognisable period for the purposes of the Complainant’s claim under Section 15 of the 1997 Act is the period 16 February 2023 to 17 August 2023, being 26 weeks prior to the date the Complaint Form was submitted to the Workplace Relations Commission.
The Respondent relies on the decisions in John Nolan v Kilkenny County Council (ADJ-00043956), Jinxiu Zheng v Ming Feng Limited (ADJ-00046547) and Wayne Timmons v Clare County Council (ADJ-00035162) (Appendices 11, 12, 13) “the cognisable period…is the six-month period prior to the referral of the claim”.
In this regard the 26-week period between 16 February 2023 and 17 August 2023 is the cognisable period which is the six-month period prior to the referral of the claim made by the Complainant. Based on a review of the documentation submitted and the submissions and presentations made by both parties also at the hearing the Complainant worked a total of 1,175 hours and 45 minutes averaging a total of 47 hours worked per week and falls below the 48-hour maximum set out under the 1997 Act.
While I note the Complainant submitted documentation that refers to dates of alleged breaches before the 26-week period between the cognisable period of 16 February 2023 to 17 August 2023, no plausible case or further documentation was put forward or referred to from the Complainants submission at the hearing that demonstrated that any contraventions occurred within the referable period.
No plausible case for an extension of time was made either in relation to section 41(8) of the Workplace Relations Act, 2015 Act.
Decision: Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 & Section 27(3) of the Organisation of Working Time Act 1997 as cited above. For the aforesaid reasons, I have found that the claim is not well founded. |
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.
CA-00058358-001-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997, For the aforesaid reasons in the body of my decision, I find this complaint to be well-founded and I order the Respondent to pay the Complainant €500 in compensation as being just and equitable in all the circumstances.
CA-00058358-002-Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997, For the aforesaid reasons in the body of my decision, I have found that the claim is not well founded.
CA-00058358-003-Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 For the aforesaid reasons in the body of my decision, I have found that the claim is not well founded.
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Dated: 21-03-2024
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Organisation of Working Time Act 1997 |