DWT2510

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048047 (CA-00059195-001)

BACKGROUND:

The Employee appealed the Adjudication Officer's Decision to the Labour Court on the 6th of November 2024. A Labour Court Hearing took place on the 14th of March 2025.

The following is the Labour Court's Decision:

DECISION:

This is an appeal by Job David against a Decision of an Adjudication Officer in a complaint against his employer the National Rehabilitation Hospital made under the Organisation of Working Time Act 1997 (the Act). The Adjudication Officer found that Mr David’s complaint under the Act was not well founded.

In this Decision, Mr David is referred to as “the Complainant” and the National Rehabilitation Hospital” as “the Respondent.”

Summary of Complainant’s Position

The Complainant is employed as a Clinical Nurse Manager II (CNM II) on night duty. As a Night duty CNM II he is the sole manager on duty and has responsibility for 120 patients and 40 staff.

The Complainant’s shift runs from 19:45 to 08:05 the following day (a 12-hour and 20-minute shift). He is paid for 11 hours and 30 minutes, with a 40-minute paid break and 50-minute unpaid break.

The Complainant remains on call/working during the entire break period of 1 hour and 30 minutes. The Complainant is obligated to carry a pager and work mobile, to remain contactable, during his entire shift. As he works during his entire shift, he cannot take uninterrupted rest breaks or is working on my breaks.

The respondent provides meals, rest rooms and kitchen facilities for all the night staff, doctors, staff nurses and health care assistants. Other staff nurses (and Doctor on-Call) who remain on call are given TOIL if their breaks are interrupted and are paid for their breaks.

The Respondent implemented an unagreed process for avail of time-off-in-lieu (TOIL) since February 2023. The Respondent is in breach of the NRH policy on Staff Wellbeing at work policy. Due to the nature of his work, complexity, and the necessity as a sole CNM II on duty, he is working even while taking breaks.

Summary Position of the Respondent

As the most senior member of staff on site during the night shift, the Complainant has full autonomy to decide when to take his breaks. The nature of the role requires that he remains on site for the continuous period of their shift. The Complainant can take breaks; however, he is not permitted to leave site, in case of unforeseen circumstances or an emergency.

Given the nature of the work, breaks are interrupted where an emergency or urgent situation arises. When breaks are interrupted employees are expected to recommence their break at the next appropriate period during their shift. If that is not achieved, the agreed process since February 2023 is that employees notify the Nursing Management team of the interrupted break at the end of shift handover and claim for time off in lieu (TOIL).

A ‘Failure To Avail Of Rest Breaks’ form is available to all employees on the Hospital Intranet.

The Complainant is aware of the process to notify nursing management when he cannot avail of an uninterrupted break of interrupted breaks.

It is a contractual obligation for employees to inform management with immediate effect if they do not get their full breaks, so that compensatory rest can be provided as provided in S.I No. 21 – Organisation of Working Time (General Exemptions) Regulations 1998.

The Complainant has not advised management, either verbally or in writing, of any instances where his breaks were interrupted. As such, he has not been eligible for TOIL.

The Complainant’s has not particularised his claim and has failed to specify any date or time when he failed to receive his rest break entitlements as required under the Act.

The Complainant has sought compensation for having the pager/phone in his possession. He has also queried why a colleague receives a different entitlement for compensation for breaks. The fact that the Complainant receives different compensation for his rest periods, in comparison to one colleague, is due to a historical red circle agreement not applicable to him and is not a matter to be considered under the Organisation of Working Time Act 1997.

The Respondent refutes any breach of the Organisation of Working Time Act and submits that the Appellant has received his break entitlements in line with the Act.

Relevant Law

Organisation of Working Time Act 1997

Rests and intervals at work.

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).

Section 41(6)) of the Workplace Relations Act, 2015, provides as follows:

“(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.”

Deliberations

While the Complainant provided extensive written submissions to the Court addressing a range of employment matters, including payment for breaks, the Court noted at the outset of the hearing that its jurisdiction in the within appeal is confined to assessing whether the Respondent contravened the Act by denying the Complainant his statutory entitlement to rest breaks as provided at section 12 of the Act and the compensatory rest provision provided S.I No. 21 – Organisation of Working Time (General Exemptions) Regulations 1998.

The complaint was lodged to the Workplace Relations Commission (WRC) on 3 October 2023. Therefore, the relevant period for consideration by the Court in assessing the complaint, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 4 April 2023 to 3 October 2023.

The Complainant asserts that he did not receive his rest break entitlements as required under the Act.

The Respondent submits that no contravention of the Act has occurred and, furthermore, the Complainant has failed to provide details of any date or time when an alleged contravention of the Act occurred.

The Complainant confirmed that he was aware of the process in place to notify his employer if he did not receive his statutory rest breaks. The Complainant said that he did not utilise that process considered the notification process to be irrelevant as he worked through his breaks.

In reply to questions from the Court, the Complainant, confirmed that he did not notify his employer of any contraventions of the Act or missed rest breaks that occurred during the cognisable period for the complaint. He further accepted that he could not provide details of any alleged contraventions of the Act to ground his complaint. 

Having regard to the above, the Court finds that the Complainant has failed to identify any evidence of a contravention of the act in relation to his statutory entitlement to rest breaks during the cognisable period for the within complaint. Accordingly, the Court finds that his complaint is not well founded.

Decision:

The complaint is not well founded.

The decision of the Adjudicator is upheld.

The Court so decides

	Signed on behalf of the Labour Court
	Katie Connolly
ASL	______________________
3rd April 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Amy St Leger, Court Secretary.