Complainant

Respondent

Parties

Noel  Connolly

Tusla Child And Family Agency

Complainant

Respondent

Anonymised Parties

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Representatives

Niall Breen & Co Solicitors

Finbarr Marsden, Regional HR Manager, Tusla Child & Family Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060589-001

18/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060589-002

18/12/2023

The complainant, Mr Noel Connolly is employed by the respondent Tusla.  He is arguing that his original terms of employment included paid lunch breaks and is seeking to have his Terms of Employment formally amended to reflect this entitlement.  Evidence was given at the hearing under oath/affirmation by the complainant, and by Mr Michael Carville previously the Director of the Residential Team in which Mr Connolly was originally employed, and Ms Gail Penders who was the Unit Manager at the time.  All evidence was subject to cross examination.  Submissions were received from both parties and considered by me.

The Complainant is an employee of the Respondent since 2002. The Complainant’s contract provides that he works for 39 hours per week.

In 2002 the Complainant was employed as a chef in the Respondent’s Residential Support Unit in Castleblayney. His working week was initially 9am to 5pm, Monday to Thursday and 9am to 4pm on Friday. Those hours were very soon altered to 8am to 4pm, Monday to Thursday and 8am to 3pm on Friday. The Complainant has since he commenced work with the Respondent been paid for a standard work week of 39 hours. The Complainant received paid lunch breaks.

In 2004 the Complainant took on certain maintenance duties. He was paid overtime in respect of these additional duties until in or about 2014.

In 2008 the Complainant ceased working as a chef and began performing maintenance duties on a full-time basis (occasionally providing cover for the chef if he was absent).

In or about 2013 the Castleblayney Residential High Support Facility closed. From then the Complainant ceased to be paid overtime but received Time-Off In Lieu (TOIL) in respect of any work done in addition to his standard working week

An issue has now arisen in respect of the Complainant’s entitlement to paid lunch breaks. Furthermore duties which the Complainant performed outside his standard working hours and for which he received TOIL have ceased to be given to him.

The Complainant seeks redress pursuant to Section 7(2)(b)(ii) of the Terms of Employment Information Act and specifically an alteration of his terms and conditions of employment to correct the current inaccuracy or omission in his terms and conditions of employment.

There has been an internal grievance procedure in respect of the issue.

Ms Mary McGlynn was appointed in or about 2018 and is the Complainant’s manager. Ms McGlynn took issue with the submission by the Complainant of a request for TOIL.

On or about the 28th day of January 2022 the Complainant was advised by Ms McGlynn that his working week would thereafter be 8am to 5pm, Monday to Friday and 8am to 4pm on Friday. The Complainant was advised that he would be required to take a one hour paid lunch break between the hours of 12pm and 2pm. In addition, duties in respect of which the Complainant received TOIL were taken from him.

The Complainant’s contract is silent on the question of lunch breaks and does not include a provision that the Complainant’s lunch breaks were paid breaks. It is this omission / inaccuracy which the Complainant seeks to have corrected.

The Complainant cites the decision in Eagland v British Telecommunications [1993] I.C.R. 644.

In broad terms it is as follows. First, one looks to see if there was a term expressly agreed. If not, whether there was a term which can be said to have been agreed by necessary implication. If not, whether such a term can be spelt out of all the circumstances, including the actions of the parties during the period which the employment had lasted, and, if not, then the industrial tribunal may be under a duty (as it is said in the report) to invent a term.

It is submitted that the evidence in this case allows the Adjudicator to exercise the Section 7 jurisdiction and to correct the Complainant’s terms of employment to reflect his entitlement to paid lunch breaks.

Mr. Connolly is claiming that he should have a one hour paid break incorporated into his working day. This was the arrangement while he worked as a Chef in the High Support Services from 13/05/2002.

The High Support Unit closed in 2013 and staff were redeployed to other services. Mr. Connolly took up a maintenance role in the Wellbeing Centre, which provides community services and continues to work in that service to date.

Mr. Connolly raised a grievance in writing on 3rd December 2021 in relation to ‘proposed changes to my contract of employment under the Organisation of Working Time Ac t 1977’.  Mr. Connolly was represented by FORSA Trade Union and an informal meeting was held with Forsa Officials and Mr. Finbarr Marsden, Regional HR Manager on 12th July 2022. At that meeting the Union proposed that Mr. Connolly be offered the working hours:

Monday – Thursday – 8.00 – 12.00, Break from 12.00 to 12.30 - 12.30 – 16.00 (8hours)

Friday – 8.00 – 12.00, Break from 12.00 to 12.30, 12.30 – 15.00 (7 hours) This amounted to 39 hours with a 30minute paid break each day.

This was subsequently considered by management and HR and not acceptable but alternative hours were suggested which were:

4 days – 8.00 – 13.00/ Break/ 14.00 – 17.30 (if taking 30minute break this could be 13.30 – 17.00) 1 day – 8.00 – 13.00

This amounted to a total of 39 hours with no paid breaks. 

 Mr. Connolly subsequently looked for a Grievance Hearing. The Stage 1 grievance hearing was heard on 31st January 2022. Mr. Connolly appealed the decision from the Stage 1 hearing and a Stage 2 hearing was heard on 14th February 2022.

Mr. Connolly appealed the outcome and following a  Stage 3 hearing a decision  issued on 28th November 2023 which did not find in Mr Connolly’s favour.

Mr. Connolly was employed in the Rath naNog High Support Service as a Chef on a 39 hour contract from 13th May 2002 until the unit closed in October 2013.  Following the closure, Mr. Connolly along with other staff, were redeployed to other services. Mr. Connolly took on a maintenance role in the community services which has continued to date.

Under the Working Time Act 1997 a minimum of 30 minute break must be taken where an employee has worked continuously for 6 hours or more. For all Tusla Employees who work in the community the breaks are unpaid.

Any employees who transferred to community services from the Rath naNog service, work their full hours and take the unpaid break in line with the Organisation of Working Time Act 1997. 

Mr. Connolly claimed that two of his colleagues who transferred from the High Support service into the community, continued to enjoy the benefit of paid lunch breaks. This is not the case.

 A meeting took place in 2018 with Mr. Connolly, Ms. Mary McGlynn (Line Manager) and Mr. Cathal Grant (Service Manager). While Mr. Connolly claims his hours of work were discussed at this meeting including his paid lunch break, this is disputed by both Ms. Mc Glynn and Mr. Grant and both separately advise that this was not discussed.

 There are no records available which show the hours being worked by Mr. Connolly and which might indicate that paid breaks were being taken.

 The management have been flexible in how Mr. Connolly can work his hours to include an unpaid lunch break and have been open to suggestions from Mr. Connolly.

 Should this claim be conceded, it could lead to similar claims from any of the employees who were redeployed from the Rath naNog High Support service into the community services. 

 A relevant comparator case adjudicated by the WRC is ADJ-00011590 where a Clinical Nurse Manager took the case against the Health Service Executive. In that case the employee was transferred to another service and claimed they should have retained the paid lunch break arrangement – ‘In respect of the first issue regarding paid lunch breaks the respondent has clarified that paid breaks were only retained by one staff member as part of a cross site commitment and that the other 140 staff who transferred out did not retain an entitlement to paid lunch breaks.   I am satisfied that this is an issue which has the potential to affect 140 staff and in such circumstances that it should more appropriately be dealt with as a collective issue.   Accordingly, I do not recommend in favour of the complainant in respect of this matter’

 In accordance with the Organisation of Working Time Act 1997, employees are entitled to an unpaid rest break at work of 15 minutes after having worked 4 hours and 30 minutes and an unpaid rest break of 30 minutes after having worked 6 hours (which includes the earlier 15-minute break). 

Within the Act there are exempted services and for Tusla that would include Residential and High Support Services based on the requirement to be on site at all times. This exemption does not extend to Tusla employees who work in the community where there is no requirement to be on site at all times. Mr. Connolly works in a community service and there is no impediment to him taking the daily rest breaks which are specified in the Act. 

At the hearing the complainant confirmed that he was seeking redress pursuant to Section 7(2)(b)(ii) of the Terms of Employment Information Act and specifically an alteration of his terms and conditions of employment to correct the current inaccuracy or omission in his terms and conditions of employment.

Section 7 of the Terms of Employment Act 1994 includes the following provisions;

(2) A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

The term of employment in dispute relates to whether or not the complainant’s working week includes a paid lunch bread of one hour.  The position of the complainant is that this was a term of his original contract which he never agreed to alter.  The position of the respondent is, in summary, that whatever about the arrangements that existed in his original place of employment, after that closed and he was transferred elsewhere, the hours of work which existed for his new co-workers applied to him and that a 39 hour week did not include a paid lunch break.  The respondent also references the Organisation of Working Time Act requirements for breaks.

A copy of the complainant’s original terms of employment was not available.  In evidence the complainant stated that he had received a copy of these but had mislaid it.  He was certain that it said 39 hours.  The normal interpretation of a 39 hour week would not include a paid lunch break.  However, in evidence, Mr Michael Carville, the original Director of the Residential unit in which the complainant was first employed, stated unequivocally that the unit was set up on the basis of a paid lunch break for all of the team, including the complainant. This was also confirmed by Ms Penders in her evidence. In these circumstances, and in the absence of an express term to the contrary, I conclude that the complainant’s terms of employment were for 39 hours per week including a paid lunch break.  There is no evidence that the complainant ever agreed to a change in this condition of employment. This matter is not the subject of a collective claim and neither are there any issues arising regarding statutory breaks.

The complaint is accordingly well-founded and I order the respondent to issue the complainant with a copy of his terms of employment including the provision that his weekly hours of work (39) include a paid lunch break of one hour each day. These amended terms of employment should be put into effect from the date of this decision.

I order the respondent to issue the complainant with a copy of his terms of employment including the provision that his weekly hours of work (39) include a paid lunch break of one hour each day.

Amendment to terms and conditions