SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
TESCO IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Hayes
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioner's Decision No's R-134197/134199/134201-Wt-13/MMG.
2. This is an appeal under section 28(1) of the Organisation of Working Time Act. A Labour Court hearing took place on the 13th of November 2015. The following is the Court's Determination:
The Complainant commenced employment with Tesco Ireland Ltd (the Company) as a night retail security officer on 21 March 2005. The Complainant filed three complaints with the Labour Relations Commission under the Organisation of Working Time Act. They were:
-That the Company required him to work more than an average of 40 hours per week calculated over a two month reference period
-That he received no premium pay for working on Sunday
-That he did not receive a daily rest period as provided for in section 12 of the Act.
In a decision issued on the 15 April 2015 the Rights Commissioner found against the complainant. He appealed against those decisions to this Court on 27 April 2015. The case came before the Court on 1 September 2015.A number of issues arose in the course of the hearing that resulted in the Company making an application for an adjournment to enable it to call a witness to rebut some evidence that had not been raised at first instance. The Court granted the adjournment. The matter came before the Court again on 13 November 2015.
At the commencement of the hearing Mr Grogan, Solicitor for the Complainant, told the Court that he was confining the appeal to the complaint under Section 12 of the Act. He withdrew all other appeals.
Position of the Parties.
The complainant in evidence told the Court that the night shift was staffed variously by one or two duty managers. When two managers were on duty he received his breaks in accordance with section 12 of the Act. However when only one manager was on duty he was regularly called back from his break to assist with various duties in the store and did not receive the statutory breaks set out in section 12 of the Act.
The respondent stated that the complainant was employed as a security officer and comes within the scope of regulation 3(1) of statutory instrument no S.I. 21/1998. It further submitted that it afforded the Complainant the opportunity to take breaks commensurate with section 12 of the Act.
Section 12 of the Act states
- (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.(1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.
Section 3(3) states
(3) The exemption shall not apply, as respects a particular employee, if and for so long as the employer does not comply with Regulation 5 of these Regulations in relation to him or her.
Regulation 4 states
4.If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
Regulation 5 states
5.(1) An employer shall not require an employee to whom the exemption applies to work during a shift or other period of work (being a shift or other such period that is of more than 6 hours duration) without allowing him or her a break of such duration as the employer determines
(2) In determining the duration of a break referred to in paragraph (1) of this Regulation, the employer shall have due regard to the need to protect and secure the health, safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace.
Exempted activities include
2. An activity of a security or surveillance nature the purpose of which is to protect persons or property and which requires the continuous presence of the employee at a particular place or places, and, in particular, the activities of a security guard, caretaker or security firm.
Findings of the Court.
The complainant gave evidence to the Court. He stated that when only one manager was on duty at night he was called back from his break on 3 or 4 occasions each week. He was required to clock out for his break and to clock back in at the end of the break. When called back from his break he clocked back in to work. However when the task for which he had been called back was completed he could not clock out again as the system did not permit him to do so. He stated that it was a regular occurrence for him not to get the statutory break on those nights. He further stated that he was not allowed leave the premises during his break and remained constantly on-call
The Respondent called three managers to give evidence. Two of them were not present in the store during the relevant statutory reference period and as a consequence were not in a position to give any relevant evidence to the Court. The Court adjourned to allow the relevant manager give evidence. He gave evidence when the Court reconvened on the 13thNovember.
He stated that he had a good working relationship with the Complainant. He acknowledged that the Complainant was occasionally called back from his break when the need arose. He disputed the frequency stating that he estimated that it occurred at the rate of one night per week.
He told the Court that he did not on those nights subsequently check whether the Complainant received the statutory break to which he was entitled. He said he assumed that he had resumed his break and completed it. He stated that the Complainant had never raised the matter with him. As a consequence he said he did not give the resumed breaks any consideration.
The Court finds that the Complainant is a security officer and is pursuant to Regulation 2 of S.I. 21/1998 exempt from the provisions of section 12 of the Act. However the exemption is contingent upon the Company’s complying with Regulation 4. It requires the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.
The Complainant’s manager told the Court, that there was no impediment placed before the Complainant as to prevent him resuming his break whenever it was interrupted.
The Complainant told the Court that when called back from his break he was not in a position to avail of the breaks to which he was entitled. He further told the Court that the Complainant was not free to dispose of his time as he wished during his break. The Manager told the Court that the Complainant was free to leave the store during his break. However he was required to so notify his Manager. He said that this was necessary in order for him to know where he was and to make arrangements for the store to be opened and closed to facilitate his coming and going.
The Court found that the Complainant’s and the Manager’s evidence was broadly consistent. The Manager did not intervene in the Complainant’s management of his breaks. He noted that the Complainant had not brought any difficulties to his attention. Had he done so he would have addressed them and enable the Complainant resume and complete his lawful breaks.
The Court notes that Regulation no 4 of S.I. 21/1998 places the onus on the employer to satisfy itself that it is complying with the Act. The Court finds that the clock card system would have disclosed that the complainant was not in receipt of his full statutory entitlement. He clocked out at the commencement of his break and clocked back in when he was recalled to work before its scheduled end. An analysis of the clock card would have disclosed that there were occasions on which the time recorded on the break did not correspond with the statutory requirement. This could and should have been noted and brought to the attention of the manager to enable him to deal with the matter. No such system was in place. As a consequence the Manager was under the impression that the Complainant was availing of his breaks while in fact he was not in a position to do so. Accordingly the Court finds that the Company did not discharge the onus of satisfying itself that it was complying with the Act in this regard.
In the circumstances the court accepts the Complainant’s evidence and finds that the complaint is well founded.
The Court notes that the provision of adequate breaks is an important safety and health matter that is protected in law for good reason. It ensures that workers are not excessively fatigued at work and have adequate opportunity to recover during a shift. Accordingly the Court takes a serious view of infringements of the Act involving a denial of adequate rest periods to workers.
The Court also notes that in this case the intention was to provide the Complainant with the required breaks. The Court notes that the Complainant did not raise the matter with the Manager.
In the circumstances the Court finds that complaint is well founded and orders the respondent to pay the complainant compensation in the amount of €1,500 euro. The Court further orders the respondent to comply with the provisions of the Act and in particular S.l 21/1998 in respect of the Complainant’s employment.
The Court so determines
Signed on behalf of the Labour Court
____16th December 2015______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.