Complainant

Respondent

Parties

Sylwia  Ignacok

Caspian B.M.P Limited Caremark Galway

Representatives

Krystian Boino Hoban Boino Solicitors

Jason O'Sullivan J.O.S Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00053610-001

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053610-003

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053610-004

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053610-005

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053610-006

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053610-007

08/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053698-001

14/11/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation and cross examination was facilitated.  The proceedings took place with the assistance of a Polish interpreter provided by the WRC.

The complainant submitted that she commenced employment on 26/05/2022 as a health care assistant/health care worker.  In essence her duties involved her travelling every working day to different locations (patients private houses) where she was allocated certain care/assistance tasks.   Her employment ended on 04/08/2022.

ADJ-00053610-001 Minimum Wage

The complainant submitted that she requested a statement of the average hourly rate of pay. The responded failed and/or refused to provide that information.

It was submitted that the complainant worked for a period from the commencement of employment till end of July 2022 for a total of 566.25 hours and received a gross salary of €5,492.53.   The complainant submitted that this amounts to a figure of €9.48 per hour at a time when the Minimum Wage was set at €10.50 in the period of employment.

ADJ-00053610-003 Sunday Work

The complainant submitted that she was required to work on Sunday, but that no premium was paid. She submitted that she worked on the following Sundays:

05/06/2022 (13h45m); 26/06/2022 (10h15m); 03/07/2022 (13h); and 17/07/2022 (13h).

The complainant claims a 50% premium on top of the hourly rate - total hours worked: 50 hours x €5.25 = €262.50

ADJ-00053610-004 Daily rest Period

The complainant submitted that under Section 11 of the Organisation of Working Time Act “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”

It was submitted that on the following dates complainant was not provided with 11 hours of a rest period:

07/06 finish 21:30 08/06 start 7:30 [10 hours]; 08/06 finish 21:00 09/06 start 7:45 [10h45m hours]; 14/06 finish 21:15 15/06 start 7:30 [10h15m hours]; 17/06 finish 21:30 18/06 start 7:30 [10 hours]; 23/06 finish 21:30 24/06 start 7:45 [10h.15m hours]; 28/06 finish 21:30 29/06 start 7:45 [10h15m hours]; 29/06 finish 21:30 30/06 start 7:30 [10 hours]; 15/07 finish 21:30 16/07 start 8:00 [10h30m hours]; 16/07 finish 21:30 17/07 start 8:00 [10h30m hours]; 27/07 finish 21:00 28/07 start 7:30 [10h30m hours]; and 28/07 finish 21:15 29/07 start 7:30 [10h15m hours].

ADJ-00053610-005 Break Times

The complainant submitted that Section 12 of the Act states as follows:

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The complainant submitted that according to section 12 of the Act and considering that the length of the complainant’s shift ran regularly for well over 11.5 hours (in fact some shifts in excess of 14 hours), the complainant was entitled to at least two breaks of at least 30 minutes and 15 minutes respectively. Firstly, a break of 30 minutes after 6 hours and a secondly break after 4.5h of at least 15 minutes.

The complainant submitted that she was not provided with appropriate breaks. The complainant relied upon the Labour Court decision in Tribune Printing & Publishing Group v Graphical Print & Media Union, where the following observation was made:

“The Company is under a duty to ensure that the employee receives his equivalent rest period and breaks.

Merely stating that the employee could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives these breaks, thus protecting his health and safety, does not discharge that duty.”

ADJ-00053610-006 Hours of Work

The complainant submitted that Section 15 of the Act deals with weekly working hours:

 (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—

The complainant submitted that she was required to work in excess of the average of 48 hours per week. The average working week over the duration of her employment from 01/06/2022 to 31/07/2022 amounts to 57.25 hours (522 hours/9 weeks)

The complainant submitted that overall, in respect of the complaints of breaches of working time regulations, it relies on observations made by Labour Court in the case ISS Ireland/Vyara Gfencheva (WTC/09/155; DWT1157) and submits that the time spent on travelling between the patient/client houses is working time, as it is a time wholly, exclusively and necessarily undertaken in the performance of contractual obligations of Complainant employment.

ADJ-00053610-007 Holiday/Annual Leave

The complainant made no submission in respect of holiday or annual leave.

ADJ-00053698-001 Payment of Wages, Return of Retained funds

The complainant submitted that there was a €250 deposit deduction made as the respondent was also providing accommodation. That deducted deposit was not returned to the complainant and amounts to an unlawful deduction from her wages in circumstances, where the end of employment resulted also in vacating of the accommodation by the complainant.

The complainant submitted that her last payment was received as per payslip dated 05/08/2022. That payslip covered the working time for the end of the previous week (week 25/07/2022-31/07/2022. She worked an additional three days: 02/08 (11h45m), 03/08 (11h), and 04/08 (12h).  She claims that she did not receive payment for this work: 34h45m x €10.50* (minimum wage) = €364.87.  The complainant claimed a total shortfall of €250 + €364.87 = €614.87

The complainant submitted that Section 5(6) of the Payment of Wages Act 1991 states:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Complainant testimony:

The complainant submitted that a €250 deduction was made from her wages at the end of her employment. This was in respect of the deposit for the house she was staying in. When her employment ended, she was thrown out of the house. She noted that she received an e-mail saying that it would be returned but this did not happen.

The complainant submitted that she was not paid for the last week of work. She stated that she only worked 3 days of the roster that week but did not receive any payment in respect of this employment period.

The complainant noted that the travelling time to and from her first and last appointment was not included for payment. The complainant stated that very little travel time with allowed between appointments but noted that she did travel in a company vehicle provided by the company. She stated that she considered that driving time was included as working time.

The complainant noted that she was not allowed to be late, stating that someone would not be served meal and that this was not permissible as some of the patients may have dementia. She noted that the only breaks she was allowed to take her were when she was out in her car, and this included things like urinating at the side of the road. She noted that Sunday premium was not paid.

Under cross examination the complainant noted that she was provided with accommodation and a welcome pack. She confirmed that she received a salary of €870 per fortnight. She acknowledged that they did say to her that she could say no to certain aspects of the work. The complainant noted that travel time was not built into all designated appointments but was built into some. She confirmed that there were gaps in the schedule it was put to her that she was suggesting that it was impossible to go from 1:00 appointment to another without taking break.

It was put to the witness that there was no record of her having worked 11 June. It was also put in her turn rusted hours or not 10.5 hours on four July 2022 but 8.25 and that travel time was built into those hours.

It was put to the witness that between 4:00 and 9:00 July she worked 41 ¾ hours not 48 hours she claimed. It was noted and agreed that she was providing an important service which needed to be provided at all times. It was put to her that her hours did not exceed 48 hours in any given week. It was put to her that her employment package included an amount as rent allowance.

This was put to her that when she sent an e-mail to the respond on 7 August 2022, she was not an employee any longer. She responded that she didn't do any misconduct on the day she was let go.

Under redirection the witness confirmed that there were short gaps and a certain amount of travelling time was included in her daily schedule.

The respondent submitted that it is a company providing home care services to service users within the community.  The complainant, in common with other employees, provided care to service users in their homes. She was provided with a schedule of appointments to attend at various client houses at different times of the day. While these appointments were listed for approximately one hour, they invariably took far less time and the complainant used some of the remaining time to travel to her next appointed work appointment.

The respondent submitted that she would often be scheduled to attend at various appointments with significant gaps between the completion of her last appointment and the commencement of her next appointment.  She was provided with accommodation and a company vehicle.

The respondent submitted that during the course of her employment there were a number of incidents where the complainant failed to fulfil appointments.  It was also submitted that during the course of her employment, she was guilty of serious misconduct which resulted in her contract of employment being terminated by the Respondent on 5 August 2022.

The respondent submitted that the complainant’s period of employment spanned a period of some 9 weeks from the beginning of June to the beginning of August 2022.  It submitted that during the period of her employment, the complainant requested extra hours of work as she stated she needed to save money. The respondent facilitated her in this regard.  The respondent submitted that her entitlements pursuant to employment protection statutes were fully observed during the course of her employment.

The respondent submitted that the complainant brings a number of claims under the Organisation of Working Time Act 1997. She claims that she was expected to work in excess of 48 hours per week, was not provided with adequate breaks, and was not afforded sufficient daily rest periods. It is submitted that this is based on an erroneous view of “working time” and is submitted that the claims under the Act are misconceived.

ADJ-00053610-001 Minimum Wage

The respondent submitted that the complainant was provided with the appropriate and lawful minimum wage applicable at the time of her employment. It submitted that the assertion that she was not provided with the minimum wage rate is based on a flawed calculation of her working time.

The respondent submitted that the complainant was provided with her lawful wage entitlement in accordance with her contract of employment and that her claim fails to have regard to the provision of accommodation as part of her payment by the respondent.

The respondent submitted that the complainant was afforded a generous accommodation and other benefits package. The respondent submitted that it values its employees and provides a competitive rates and benefits package which includes heavily subsidised accommodation. It submitted that the respondent Company continues to attract staff in a competitive environment.

ADJ-00053610-003 Sunday Work

The respondent made no specific submissions in relation to the issue of Sunday premia

ADJ-00053610-004 Daily rest Period

The respondent submitted that the complainant has submitted a table setting out her purported hours of work during the course of her employment. It is submitted that the calculations based on this table are flawed. The respondent has submitted a record of her hours of work during the period of her employment. It submitted that an analysis of the records submitted by the respondent demonstrate that the complainant worked within the permitted 48-hour limit and that she was provided with periods of rest between appointments. For example, in the week from 7 June 2022 to 11 June 2022, the respondent’s records show that the complainant worked a total of 40 hours when her hours of work are calculated. The respondent submitted that the one hour scheduled slots for attendance with client’s included travel time to and from the clients.

The respondent submitted that Section 2 of the Act provides the definition of “working time” as ““working time” means any time that the employee is

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work…”

The respondent submitted that the periods of inactivity, often amounting to a number of hours between scheduled appointments were not “working time” within the meaning of the Act. It submitted that the calculation of the complainant’s “working time” during any particular week must disregard periods of inactivity when she was not scheduled to visit clients. It is submitted that her calculation, which is based on including the whole period between the commencement of the first appointment in the morning and the completion of the last appointment of the day, is flawed, in that it includes periods when she was not carrying out work for her employer.

The respondent submitted that the Courts, including the European Courts have, on a number of occasions, considered the question of the definition of “working time “(in Case C-303/98, Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] E.C.R. I-7963). It submitted that the periods where the complainant was not scheduled to attend any appointment with clients are not “working time” and are therefore not reckonable for the purpose of any calculation under S.15 of the Act.

ADJ-00053610-005 Break Times

The respondent submitted that the complainant alleges that she was denied her appropriate rest periods during her working day. It submitted that her calculations are flawed in their interpretation of working time and their failure to take into account the periods of time when she was not scheduled to attend with a client.  The respondent submitted that she also neglects to have regard to the fact that, although rostered for 1-hour slots, most of her appointments would have taken considerably less time and therefore she was afforded an opportunity to take break and rest periods during those periods of time.

The respondent submitted that Section 4(2) of the Organisation of Working Time Act provides that

“(2) Without prejudice to section 6, sections 11 and 13 shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day.”

The respondent submitted therefore that, as the complainant’s work was consisted “of periods of work spread out over the day” her employment is exempt from the requirements of Section 11 in respect of daily rest periods. 

While the respondent asserts that the complainant was afforded adequate breaks and was provided with ample opportunity to take appropriate breaks, and while it asserts that she primarily managed her own time, she was therefore responsible for taking her breaks, it is submitted that her employment is included in the categories of employment which are exempt from the provisions of, inter alia, Section 12 of the OWTA, by the Organisation of Working Time (General Exemptions) Regulations 1998 S.I. No. 21 of 1998, paragraph 3 of Schedule 1 of which exempts activity, inter alia,

“b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be, and, in particular, any of the following activities—

(i) the provision of services relating to the reception. treatment or care of persons in a residential institution, hospital or similar establishment,…”

ADJ-00053610-006 Hours of Work

The respondent noted that the complaint is based on a flawed calculation of working time.  In addition, the respondent submitted that Section 15 of the Organisation of Working Time Act provides that

“(1) An employer must 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 [3, points (a) to (e)] of Article 17 of the Council Directive…”

It submitted that in order to be successful in a claim under Section 15 of the Act, a claimant must show that the requirement to work in excess of 48 hours continued over a period of 4 months (or 6 months in specified employments) and that the amount of working hours, when averaged out over this period exceeded 48 hours.

The respondent submitted that as the complainant was employed by the respondent for a period of approximately 9 weeks, the complainant cannot demonstrate that her hours of work were in excess of 48 hours when averaged over a period of 4 months. It submitted that during her approximately 9 weeks of service, she sought to be provided with extra hours by the respondent and was facilitated in this regard. It submitted that if she had continued in her employment for a period of 4 months her average hours of work would not have exceeded 48 hours per week.

ADJ-00053610-007 Holiday/Annual Leave

The respondent made no submission in relation to this matter.

ADJ-00053698-001 Payment of Wages Return of Retained funds

The respondent noted that the payment of wages complaint was based on an erroneous calculation of working time and that the matter of the retention of a deposit was unrelated to the issue of employment but related to the accommodation provided.

Respondent witness:

The first witness for the respondent was the managing director. He noted that there was no accommodation cost for employees. He indicated that there was a certain tolerance in the travel time built into the schedule. He stated that there was a tracker on the company car and that the respondent knew how much time was available between appointments.

The witness mentioned that there was a deduction of an overpayment and that certain deductions were also made in the event of a resignation before six months and elapsed. He noted that a deduction was made if there was a car crash, and the employee was found to be at fault.

As to the minimum wage issue, the witness noted that employees worked four or five days in any given time period. Employees were paid at €13.50 per hour. He noted that the employees’ hours of work only went over the 48 hours per week as the complainant requested additional hours.

The witness confirmed that no travel time is given and that employees have to understand that there are a certain number of gaps in the schedule that they should use for breaks. The witness noted that there were issues with a colleague she lived with, and it was noted that she was not nice to live with or to work with. He also confirmed that they got an irate call from a member of the public regarding the complainants parking of the company car. He noted that the company's number is on the car and to the employer received a complaint.

The witness noted that deductions were made from the complainant in respect of damage to the company car.

Under cross examination the witness confirmed that ‘utility’ heading relates to utility bills it deducted amounting to €160.50 over the period of her employment. It was noted that she still owed €227.00 which was never deducted. He also confirmed the three days of employment were not paid to the complainant that amounted to €290.00

The second witness for the respondent was also a managing director. She noted that they didn't respond to the complainant's request regarding minimum wage as they were not in a position to provide the information due to the cyber-attack on the HSE's facilities. She noted that when an employee left an appointment early, they have to have a note of this and when doing so had to accurately note this.

Under cross examination the witness noted that wage rate for the complainant was €10.50 per hour.

Definition of Working Time

The respondent submitted that the periods of inactivity, often amounting to a number of hours between scheduled appointments were not “working time” within the meaning of the Act. It submitted that the calculation of the complainant’s “working time” during any particular week must disregard periods of inactivity when she was not scheduled to visit clients. It is submitted that her calculation, which is based on including the whole period between the commencement of the first appointment in the morning and the completion of the last appointment of the day, is flawed, in that it includes periods when she was not carrying out work for her employer.

The respondent submitted that the Courts, including the European Courts have on a number of occasions considered the question of the definition of “working time “(in Case C-303/98, Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] E.C.R. I-7963). It submitted that the periods where the complainant was not scheduled to attend any appointment with clients are not “working time” and are therefore not reckonable for the purpose of any calculation under S.15 of the Act.

The complainant submitted that overall, in respect of the complaints of breaches of working time regulations, it relies on observations made by the Labour Court in the case ISS Ireland/Vyara Gfencheva (WTC/09/155; DWT1157) and submits that the time spent on travelling between the patient/client houses is working time, as it is a time wholly, exclusively and necessarily undertaken in the performance of contractual obligations of Complainant employment.

The case of Gfencheva v ISS Ireland (DWT1157) as mentioned by the complainant is instructive in relation to a number of the complaints for consideration in the instant case.  The Labour Court considered, amongst other things, the issue of travelling time from one work location to another.  In that case, the Court considered the case put forward by the respondent, that of C-303/98, Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] E.C.R. I-7963.  In this regard the Labour Court stated the applicable law and provided an interpretation that can be followed in similar cases.

“The law

The Organisation of Working Time Act, 1997, implemented in this jurisdiction Directive 93/104/EC concerning certain aspects of the organisation of working time (the Directive). The purpose of the Directive is to make provision for the protection of the safety and health of workers. Section 2(2) of the Act provides that a word or expression that is used in the Act and is also used in the Directive has, unless a contrary intention appears, the meaning in the Act that it has in the Directive. Moreover, the Court must interpret the domestic law in light of the wording and purpose of the Directive so as to achieve the objective pursued by the Directive. This is the clear import of the Decision of the ECJ (now restyled the Court of Justice of the European Union –CJEU) in a line of authorities starting withVon Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1894, and Marleasing S.A. v La Commercial Internacional de Malimentacion S.A[1990] ECR 4135. Section 2(1) of the Act contains the following definitions: - “rest period” means any time that is not working time;“working time” means any time that the employee is—

(a) at his or her place of work or at his or her employer's disposal, and

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

and “work” shall be construed accordingly. Article 2 of the Directive contains the following definitions: - 1. working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;2. rest period shall mean any period which is not working time; The Court was referred to a number of decisions of the CJEU in which the application of the definition of working time was in issue. Case C-303/98Sindicato de Medicos de Asistencia Publica (SIMPA) v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana[2000] IRLR 845, concerned the working hours of doctors in Spain, raised issues as to the treatment of time on-call for the purposes of the Directive. The case was brought by SIMAP, the Union of Doctors in the Public Health Service, against the Ministry of Health of the Valencia Region. Under the Spanish Regulations implementing the Directive, doctors who work in primary care teams in the public health sector are required to work 40 hours a week plus any time as may be required as a result of being on-call. One group of doctors work from 8.00 a.m. to 3.00 p.m., to which period is added, every 11 days, a period of duty on-call extending from the end of the working day until 8 am the following morning. Where a doctor is on-call, only time actually worked is taken into account in determining the maximum working time. The Court pointed out that for the purposes of the Directive there are only two states of being; that of working time and that of rest. It went on to hold that where the Doctors were required to be present at the medical centre, and available to perform work if required, the time in question was working time even thought they were not actually working. The Court pointed out that if the Doctors were not required to be present at their place of work, but liable to be called upon to attend if required, the period of on-call would not be regarded as working time. It thus appears that the ratio of this case is that a contractual requirement to be present at a particular location together with a contractual liability to perform work if required brings the period at attendance within the notion of working time. Somewhat varied facts were considered by the ECJ in Case C- 151/02Andeshauptstadt Kiel v. Jaeger[2003] IRLR 804. This case again concerned the construction of the definition of working time in the context of time spent by Doctors on-call. Unlike the SIMAP case the Doctors in this case were provided with a room in which they could sleep during periods in which their professional services were not required.The Court again pointed out that the concept of working time must be understood in contra distinction to a period of rest. It held: -

An employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity. The similar conclusion reached by the European Court in the SIMAP case applied to the on-call duty performed by the doctor in the present case. The decisive factor in considering that time spent on call by doctors in the hospital is working time is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. As those obligations make it impossible for the doctors to choose the place where they stay during waiting periods, they must be regarded as coming within the ambit of the performance of their duties.Neither the context nor the nature of the activities of the doctor in the present case was materially different from those in the SIMAP case. The fact that doctors can sleep or rest during the periods when their services are not required is not material, since such periods of professional inactivity are inherent in on-call duty performed by doctors where they are required to be present in the hospital.

Later, at par 92 of the Judgment, the Court of Justice had this to say in relation to the purpose of a period of rest: -

Secondly, it should be pointed out that the purpose of Directive 93/104 is effectively to protect the safety and health of workers. In light of that essential objective each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work but are also preventive in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce.

The Court then continued, at par 95; -

“In order to ensure the effective protection of the safety and health of the worker provision must as a general rule be made for a period of work regularly to alternate with a rest period. In order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties......”

In case C-14/04Dellas and others v. Premier Ministre and another [2003] IRLR 225, the Court had to consider the compatibility with the Directive of a French system whereby time spent at work was weighted by reference to the intensity of the activity undertaken. In holding that the system in issue did not comply with the Directive the Court held that: -

“Working time” within the meaning of the Working Time Directive means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, as opposed to “rest periods”, the two being mutually exclusive. The Directive does not provide for any intermediate category between working time and rest periods. Nor is the intensity of the work done by the employee and his output among the characteristic elements of the concept of “working time” within the meaning of the Directive.

As was pointed out on behalf of the Respondent, these cases were concerned with the application of the Directive to cases involving on-call arrangements and are not directly apposite in the instant case. Nevertheless, they provide helpful guidance on the general principles to be applied in distinguishing between periods of work and periods of rest. Those principles can be summarised as follows: - 1. Time during which a person is working, at the employer's disposal and carrying out his or her activity or duties is working time, 2. Time during which a person is at a place designated by his or her employer and is required to undertake his or her activity or duties if directed to do so by the employer, is working time, 3. The notion of working time and that of a rest period are mutually exclusive, 4. A period of rest is a period which is not working time during which a worker can relax and dispel the fatigue caused by the performance of his or her duties

Application to the instant case

In the instant case the Claimants are contractually obliged to attend at up to three different locations in the course of their first shift. The time spent at each location and the time allocated for travelling between locations is designated by the Respondent. The Court is satisfied that the time so allocated in just sufficient to enable the worker to arrive at the designated location in time to commence work. The starting point and the finishing point of each journey undertaken is determined solely by the Respondent. In that respect the travelling in issue is an integral part of their contractual duties and is undertaken wholly, exclusively and necessarily in the performance of those duties. On those facts it seems logically to follow that while the Claimants are travelling they are performing a duty of their employment and are in that sense at the disposal of the Respondent. Crucially, the time allocated for travelling is just sufficient to enable the Claimant to finish cleaning at one location at the designated time and commence cleaning at the next location at the designated time. Consequently, this period could not provide the Claimants with any opportunity to relax and dispel the fatigue caused by the performance of their duties In that respect this case is readily distinguishable on its fact from those considered by this Court in Determination DWT0816, Breffni Carpentry Services v Solodouikovs. In that case the Court considered if time spent by the Claimant in travelling from home to work should be regarded as working time in circumstances in which “travelling time” was payable under the terms of the Registered Employment Agreement for the Construction Industry. The Court rejected the proposition that such periods could be regarded as working time. Unlike the present case the time which a person spends in travelling to work is not determined by their employer, the starting point for each journey (the person’s home) is determined solely by the person and the travel could not be regarded as the performance of a contractual duty of the employment.

Finding

The Time spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act.

I am satisfied from the evidence put forward in relation to this complaint that the time spent by the complainant in this case, travelling from one location to another constitutes travelling which is wholly, exclusively and necessarily undertaken in performance of her contractual obligation and constitutes working time within the meaning of the Act.

ADJ-00053610-001 Minimum Wage

The complainant submitted a note of the hours she claimed that she worked and included travel to and from her residence to work in the calculation of her hours.  The respondent submitted timesheets indicating the locations of the work undertaken on behalf of the respondent.  On the basis of the calculation of the hours from the start of the first appointment to the end of the last appointment each day, I am satisfied that the complainant received at least the minimum wage applicable at that time.

I note that the complainant did not request a statement from the employer along the lines provided for in Section 23 of the National Minimum Wage Act.

Section 23 states as follows:

Employee entitled to statement of average hourly rate of pay for pay reference period.

23.—(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

Accordingly, I find that the Act was not contravened.

ADJ-00053610-003 Sunday Work

Section 14(1) of the Organisation of Working Time Act states as follows:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

The contract submitted by the respondent makes reference to Sunday working but is silent on the issue of a Sunday Allowance or premium for hours worked on a Sunday. Accordingly, I find that this complaint is well founded.

Having regard to all the circumstances, I require the respondent to pay the complainant compensation equivalent to two weeks salary (48 hours x €10.50) €1,008 which I consider to be just and equitable having regard to all the circumstances.

ADJ-00053610-004 Daily rest Period

Section 11 of the Organisation of Working Time Act states that

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.

I have had regard to the written and oral evidence put forward by the complainant and to the calculation of the daily attendance required by the respondent, as per its schedules. I note that the complainant has included travel times to and from work in the calculation of her working time.  This is outside of the definition of working time referred to above.  Consequently, I am not satisfied that the complainant has established that the 11 hour requirement between shifts provided for in the Act was contravened.  Accordingly, I find that this complaint is not well founded.

ADJ-00053610-005 Break Times

The case of Gfencheva v ISS Ireland (DWT1157) is instructive in relation to this matter too.  The Labour Court held as follows:

“In the instant case the Respondent accepts that it did not maintain records in the prescribed form. The Claimants carry the evidential burden of showing that the time allocated in each location was fully occupied in undertaking cleaning duties and did not allow then any opportunity to take a break. The Claimants gave evidence to that effect and it is accepted as sufficient to discharge the burden which they bear. It is then be for the Respondent to adduce such evidence as is available to show that the Claimants in fact took breaks during the time allotted at the various locations. The Respondent therefore bears the legal burden of satisfying the Court, on the evidence overall, that the Act was not contravened in the manner alleged by the Claimants. If that probative burden is not discharged (on the normal civil standard of probability) the Claimants are entitled to succeed.

The evidence

The Respondent tendered in evidence work sheets showing the hours worked by the Claimants and the location at which they performed that work. These sheets showed the hours worked and the locations at which the work was performed. They did not, however, show the starting or finishing times nor did they record any interruptions in the work for breaks or other eventualities. The Claimants did not dispute the accuracy of the information contained in these work sheets. On the basis of the hours worked, as recorded on the work sheets, the representative of the Respondent conceded that if the time spent travelling between locations were to be regarded as working time the Act would have been contravened in respect to some of the Claimants. The Respondent did assert that in some instances the hours recorded on the work sheets contained provision for the taking of a break during working time. However the Respondent did not tender any evidence in support of that assertion.”

In the case before me, the respondent did not maintain any, nor sufficient, records of the breaks of its employees.  Although the respondent maintained that there was time for the complaint to take breaks as appropriate, this was disputed by the complainant.  In the absence of any written record, I am persuaded by the complainant’s account and find that the complaint is well founded.

Having regard to the all the circumstances, I require the respondent to pay the complainant compensation equivalent to two weeks salary (48 hours x €10.50) €1,008 which I consider to be just and equitable having regard to all the circumstances.

ADJ-00053610-006 Hours of Work

Section 15(1) of the Act states as follows:

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 ”) 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.

I note from the submissions and evidence that the complainant sought to work additional hours.  This was not disputed by the complainant.  I also note that the complainant was only employed for a period of nine weeks and not up to four months.  To my mind the period the complainant worked is too short to adequately consider whether following a reference period of up to four months (or six months) the complainant would heave worked over the average of 48 hours per week.   In the circumstances, I am not satisfied that the complainant has established that her complaint in this regard is well founded.

ADJ-00053610-007 Holiday/Annual Leave

The complaint did not make any submissions in respect of this complaint.

ADJ-00053698-001 Payment of Wages Return of Retained funds

Under section 1 of the Payment of Wages Act, 1991, wages are defined as consisting of the following:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

The retention of a deposit in relation to accommodation does not fall within the definition of wages and accordingly I find that this is outside the consideration of the Act.  However, the complaint also complained regarding the retention of wages in respect of three day which she worked for the respondent.  She submitted that this amounted to €364.87.  The second witness for the respondent conceded that the complainant was not paid for three day which she worked, although she suggested that a different amount was retained.  In the circumstances, I am satisfied that the complaint is well founded, and I direct the respondent to pay the complaint the amount of €364.87 less any lawful deductions.

ADJ-00053610-001 Minimum Wage

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened.

ADJ-00053610-003 Sunday Work

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded. Having regard to all the circumstances, I require the respondent to pay the complainant compensation equivalent to two weeks salary (48 hours x €10.50) that is €1,008 which I consider to be just and equitable having regard to all the circumstances.

ADJ-00053610-004 Daily rest Period

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded

ADJ-00053610-005 Break Times

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that in the absence of any written record, the complaint is well founded.

Having regard to all the circumstances, I require the respondent to pay the complainant compensation equivalent to two weeks salary (48 hours x €10.50) that is €1,008 which I consider to be just and equitable having regard to all the circumstances.

ADJ-00053610-006 Hours of Work

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded

ADJ-00053610-007 Holiday/Annual Leave

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is not well founded

ADJ-00053698-001 Payment of Wages Return of Retained funds

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complaint is well founded, and I direct the respondent to pay the complainant compensation in the amount of €364.87, less any lawful deductions, which I consider to be reasonable in the circumstances.

For the avoidance of doubt, the total amount of the awards in relation to this case are €2,380.87

Minimum Wage Act – not contravened – Organisation of Working Time Act – well founded complaints – compensation awarded – Payment of Wages Act – wages shortfall conceded – award made.