DWT2537

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046079 (CA-00056547-004)

BACKGROUND:

The Worker appealed the Adjudication Officer's Decision to the Labour Court on the 21 August 2024.

A Labour Court Hearing took place on the 27 August 2025  .

The following is the Labour Court's Decision:

DECISION:

This is an appeal by Peter Ogurčák (“the Complainant”) of a decision of an Adjudication Officer under the Organisation of Working Time Act 1997 (the Act) in relation to a complaint against his former employer Mercato Limited (“the Respondent”).

The Adjudication Officer decided that the complaint was not well founded.

Peter Ogurčák appealed that decision to the Labour Court. A hearing of the appeal together with three linked appeals EDA2562,TED2518 and TED2519 were conducted by remote hearing on 27 August 2025. Peter Ogurčák and Alan Leahy, a director with the Respondent company gave evidence under affirmation. 

1. Background

The Complainant commenced employment with the Respondent as an IT engineer on 4 December 2014.  In July 2021, by agreement with the Respondent, the Complainant relocated to Slovakia to work from his home office.  The Complainant resigned his employment on 26 December 2022.

The Complainant submits that he was regularly required to work beyond his daily working hours such that he was unable to unable to avail of an 11-hour rests break within a 24-hour period, as required under s. 11 of the Act.  The Respondent refutes that assertion.

2. Summary Position of the Complainant

The Complainant gave evidence that his role entailed maintenance of client servers, among other matters. As he could not undertake maintenance work during normal business hours, he had to wait until client users finished work and logged off their systems before he could commence maintenance work. As a result, he had no control over his working time in the evening time when he was required to undertake this work. 

The Complainant stated that, as an example, on 1 December 2022, he commenced work at 09:00 and finished at 18:00. He then recommenced working at 21:25 until 23:31. On 2 December 2022 he started work at his normal start time of 09:00. 

The Complainant submits that he was denied a period of 11 hours consecutive rest within a 24-hour period which is a clear breach of s.11 of the Act.

3. Summary Position of the Respondent

The Respondent denies the Complainant’s compliant in respect of daily rest periods.

Alan Leahy, company director, gave evidence that the Complainant had no set times for completing tasks and had discretion over when he carried out his work. The Complainant was not directed to work late into the night and working late was an exceptional occurrence. Employees are required to log hours of work and time-off-in-lieu (TOIL) is granted for any hours worked after business hours. Any working time less than 15 minutes is granted based on 15 minutes worked. The employer does not verify the hours logged by employees. The system operates on a trust basis.  

Mr Leahy accepts that the Complainant logged additional hours worked on 1 December 2022.  He submits that no evidence was submitted by the Complainant to say that he carried out actual work during the hours specified. Furthermore, the fact that a person was logged onto the system when working from home does not indicate they were working, as they can walk away for any period.

4. Relevant Law

Section 11 of the Act states

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.

5. Deliberations

The Complainant contends that he was denied his 11 hours consecutive rest after ceasing work at 23:31 on the 1 December 2022 before he was required to commence work the following day. The Respondent does not accept that a breach of Act occurred.

Mr Leahy accepted that the Complainant logged additional hours were worked on 1 December 2022 and that the Complainant was granted time off in lieu (TOIL) later for those additional hours logged by the Complainant for 1 December 2022.

The Court accepts the testimony of Mr Leahy that the TOIL system operates on a trust basis. However, contrary to the provisions of Section 25 of the Act, the Respondent acknowledged that it did not retain records of actual hours worked or when breaks were taken by the Complainant. Accordingly, the evidential burden of proving compliance with the provisions of the Act lies with the Respondent.

In absence of working time records, the Court on the balance accepts the evidence of the Complainant that he did not receive a period of 11 consecutive hours rest after ceasing work on 1 December 2022 before recommencing work on 2 December 2022, which constitutes a single breach of s.11 of the Act.

Accordingly, the Court finds the complaint to be well founded.

No examples were advanced by the Complainant of any other breaches of the Act during the cognisable period for the complaint in relation to daily rest requirement.

Having regard to all the circumstances, the Court measures the appropriate level of compensation which is just and equitable having regard to all the circumstances to be €150, which is the equivalent of one days’ pay. 

6. Decision

The Complaint is well founded.

The decision of the Adjudication Officer is set aside.

The Court orders the Respondent to pay compensation €150 to the Complainant.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
12 September 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Amy Leonard, Court Secretary.