ADJUDICATION OFFICER DECISION
A Farm Worker V A Producer
Adjudication Decision Reference: ADJ-00001001
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 16/09/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
In accordance with Section 41(4) of the Workplace Relations Act, and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint to me by the Director General, I enquired into the complaints and gave the parties an opportunity to be heard by me and present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
This complaint refers to a farm labourer, the Complainant, who was employed with the Respondent from the 2nd September 2004 to the 27th May 2015.
The Complainant earned €11.50 per hour at the time of his termination of his employment.
The Complainant maintained that there was a number of breaches in relation to the Organisation of Working Time Act 1997 as outlined in his complaint below.
The Complainant acknowledged that during 2011 he had been promoted to a leader/supervisory role where he would have overseen the work of others in the field he was working in. The Complainant would have received a pay rise to his current rate of pay upon his appointment as a supervisor/team leader. He further contended that he had never been advised of his rights under the Organisation of Working Time Act, nor was he aware of the fact that employees were entitled to daily and weekly rest breaks, or should only work a maximum number of working hours per week. He advised that he only became aware of this after he terminated his employment and when he discovered that another employee had made a successful claim against his employer for the excessive working hours. He further advised that up to that point in time he had always understood that his employer was a good employer and where all matters were in order. When he became aware of his concerns in October 2015 he took advise from his legal representation and subsequently made his claim.
The Complainant contended that as a foreign national he would have found it difficult to understand what his employment rights were, that there was no indication of what they were in his contract of employment or any staff handbook, and that he never received any training on his rights. He advised that jurisprudence would indicate that as a foreign national there was an obligation on the employer to advise him of these issues (reference DWT71/2010 and DWT 49/2010) where it has been maintained that being a foreign national allows for extraordinary circumstances to be considered in relation to an extension of his right to make a claim from 6 months to 12 months under the Act.
CA-00000933-001 Average Working Hours per Week
That contrary to Section 15 of the Organisation of Working Time Act that the Complainant was required to work in excess of a 40 hour working week between June to December 2014 where the Complainant alleged that he was required to work 1,427 hours which was an average of 54 hours per week over the period. He maintained that he was not paid over time, where he would sometimes have to work between twelve and fifteen hours a day. He contended that he was not requested to work these hours, but was told he had to work them, and if he made any complaints he was told 'no discussion' where either he had to work the extra hours or he would have no job. He further contended that from March to December he was made work in the fields, where he was not given any access to toilets.
CA-00000993-002 Intervals and Breaks at Work
The Complainant alleged that contrary to Section 12 of the Organisation of Working Time Act that he was regularly required to work long hours each day and where he did not receive the required statutory rest breaks. He maintained that he was only provided with a one hour break a day, usually from 12 noon to 1 pm, and where he would have been required to work in excess of 10 or 11 hours a day on a regular basis, particularly during the summer months.
Specifically, in the 6-month period prior to making his complaint to the Workplace Relations Commission, the Complainant alleged that he was required to work the following hours whilst only being afforded a 1-hour break.
12th May 2015 – 12 hours 44 minutes,
13th May 2015 – 11 hours 41 minutes,
Thursday 14th May 2015 – 10 hours 21 minutes,
Friday 15th May 2015 – 11 hours 18 minutes
The Complainant maintained that the hours he mentioned for the week of 12th May 2015 were typical of the hours he was required to work, specifically over the summer months.
The Complainant contended that management were aware of the hours he was required to work and that when he was provided with his 1-hour break there was no rest facilities as the breaks were normally taken in the field during this time. The Complainant further contended that he worked from March to December in the fields where there was no access to toilets, running water or any shelter. He advised that he would have to take our hour break outside regardless of the weather conditions.
The Complainant also contended that that if concerns were raised with management staff were told they could go home and effectively they would not have a job.
CAO 00000993-003 Weekly Rest Breaks
The Complainant alleged that contrary to Section 13 of the Organisation of Working Time Act he was not provided with his weekly rest break and where on many occasions he would have to work up to twenty days without a weekly break. He further argued that on occasions he would be required to work more than 12 hours on the Saturday which precluded him from his 11-hour daily rest break which should precede his 24-hour weekly rest break on a Sunday.
In the 6 months prior to making his complaint the Complainant acknowledged that he was not required to work on a Sunday and where he would in general have received his weekly rest breaks.
CA-00000993-04- Daily rest Periods
The Complainant alleged that contrary to Section 11 of the Organisation of Working Time Act, 1997 that on many occasions he did not receive a daily rest period of 11 hours. He advised that on many occasions, particularly in the summer months, he would have been required to commence work in the early morning starting between at 6 am where on numerous occasions he would be working up to 11 pm and returning to work in less than an 11-hour daily rest break. In his evidence the Complainant advised that this was a regular occurrence.
In the six months prior to making his complaint the Complainant advised that on the following dates he would have been required to work without receiving his statutory daily rest break
Tuesday 12th May 2015 – 12 hours 44 minutes
Wednesday 13th May 2015 – 11 hours 41 minutes
Thursday 14th May 2015 – 10 hours 21 minutes
Friday 15th May 2015 – 11 hours 18 minutes
He advised that over those days he would be finishing work at 11:45 pm, 9:00 pm, 8:30 pm, 9:00 pm and having to return to work before 8 o’clock, sometimes at 6am on the following morning which prevented him from having his 11-hour rest break. He therefore contended that during that week he did not enjoy his daily statutory rest periods and where he was not provided with compensatory rest. He further reiterated that this would have been a regular occurrence in the summer months over his employment.
CA-00000993-005/006 Provision of Information in Relation to Working Time.
The Complainant contended that contrary to s17 of the Act he was not provided with his starting time at least 24 hours before the first day, or as the case may be, the day in each week that the Respondent proposed the Complainant normally start and finish work on each day.
The Complainant contended that the Respondent also contravened s17(2) of the Act which requires “if the hours for an employee is required to work for his or her employer in a week includes such hours as the employer may from time to time decide (in this subsection refer to as additional hours), the employer should notify the employee subject to subsection 3, at least 24 hours before the first day or, as the case may be, the day, in that week in which he or she proposes to require the employee to work or, as the case may be, any of the additional hours, of the times of which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.”
The Complainant acknowledged that his contract of employment stated his normal working hours would be between 8 in the morning and until 5pm Monday to Saturday. He advised that when he would return to the yard each day during busy periods a notice would be placed indicating the start time the next day which was less than the 24 hours’ notice that is required, and it was never known what time he would be expected to finish as that depended on the Respondent’s decision and where this could be late into the evening, particularly during the summer times..
The Complainant contended that on regular occasions he was not provided with 24-hour notice as to require to finish work on each day, particularly during the summer months, and where he would be required to work at times up to 11 or 11:30 in the evening. He advised that there was never notification posted as to the finish time, and that depended on a given day by his manager and he could not leave the workplace prior to that time. The Complainant indicated that he did not have discretion in relation to his start and finish times, nor in relation to when he could enjoy or take his rest breaks. As they worked away from the yard he depended on a transport that was provided and therefore he was only provide information on his start and finish times at short notice and typically in the evening he would not be aware of the finish time until his manager decided.
Respondent’s Submission and Presentation:
The Respondent argued that he was not in breach of the Organisation of Working Time Act.
The Respondent also contended that as the claim was out of date there was no jurisdiction for the complaint to be heard by the Workplace Relations Commission. The Respondent maintained that as the complaint was not lodged until the 20th of November 2015, and as the last date of employment of the Complainant was the 26th May 2015, there was only a week that he worked where he was entitled for his claim to be heard. The Respondent contended that over that week there had been no violation of the obligations under the Organisation of Working Time Act.
Furthermore, the Respondent contended that the Complainant had been working with the Respondent since 2004 and had gained a lot of knowledge and experience and had been promoted to a supervisor and had received extra pay in recognition of these responsibilities. In this regard the Respondent argued that the Complainant at all times was in control of his rest breaks and therefore the Respondent was not responsible for the work practices regarding rest breaks taken by the Complainant, should it be decided that the claim was within time.
It was further argued that as the Complainant acknowledged he was not aware of any potential breaches of the Organisation of Working Time Act until sometime after of his departure from his employment. Therefore, the Respondent challenged that there was no extraordinary reason being presented in which the time to allow the case be heard be extended. The Respondent maintained that as the Complainant was a supervisor he was aware and should have known the responsibilities in relation to rest breaks. The Respondent maintained that ignorance of the legislation by the Complainant, particularly at this late stage, was not an acceptable reason to deem the claim to be extended by 6 months. It was argued that extraordinary reasons would typically be due to illness or non-availability for the Complainant to lodge his complaint in time.
Response to CA-00000993-001 Average Working Hours per Week
The Respondent argued that at no time in the 6 months prior to the claim being made was the Respondent required to work in excess of a 48-hour week. The Respondent acknowledged that in the period August 2014 to November 2014, which was over 12 months before the claim was made, that the Complainant had worked an average of 52-hour week in a four-month period, however as it was the agricultural sector where the averaging period is 6 months. In this regard the Respondent provided records that over any 6-month cycle in the previous 12 months the Complainant worked average working hours that were less than 48 hours, and thus was allowed for in the legislation.
In its evidence the Respondent presented the total weeks work during 2015 as being 22 weeks where the average weekly hours amounted to 39.55. These hours were not contested by the Complainant. During 2014 in the 6 months prior to 9th of November 2014 the hours worked averaged at 51 hours per week, and whilst these hours were not contended the Respondent maintained that the time period being referred to were outside the time for a complaint to be made.
The Respondent acknowledged that the Complainant did not receive any training, staff handbook, or information in relation to the obligations of the Organisations Working Time Act whilst also confirming that the Complainant as a supervisor was responsible to oversee the work and working hours of those on his team, including his own time.
Notwithstanding the Respondent strongly maintained that the claim of the 48 hour working week which is averaged for 6 months for the agricultural sector falls outside the time of the claim and therefore reference to this period should therefore be excluded as it was over 6 months outside the period for the Complainant to make a clam to the WRC.
Response to CAO 000000993-002 Intervals and Breaks at Work
The Respondent argued that the Complainant was provided with 1 hour’s rest break each day and he did enjoy such rest breaks. The Respondent further argued that as the Complainant was a supervisor he had the authority to grant further rest breaks if they were required, and the fact that such rest breaks were not being granted was never brought to the Respondent’s attention at the time; nor, argued the Respondent were they an issue that was raised by the Complainant until he lodged his complaint to the WRC.
The Respondent argued that the complaints under s12 of the Act were out of time as they occurred almost a year before the complaint was submitted to the WRC, and in any event as the Complainant had taken a one-hour rest break during his working day each day that he would therefore have had both the 15-minute rest break after four and a half hours’ work, a further 30 minutes’ rest break after 6 hour’s work, and a 15-minute rest break after a further 4 and a half hours. As such the Respondent maintained that the Complainant did receive a combined one-hour rest break which covered a ten and a half hour working day and met the statutory requirements of the Act. The Respondent maintained that it was rare that the Respondent would have been required to work in excess of a ten and a half hour working day.
Referring to the period of six months prior to the complaint being made, the Respondent presented a record of working hours which demonstrated that on the week commencing the 11th of May 2015 the Complainant would have worked one 12-hour day, two 11 hour days and one 10-hour day and as such he would have received the required rest breaks on those days. The Respondent acknowledged that when the intervals of rest at work breaks were not availed there was no compensatory rest provided shortly thereafter.
For the week of the 18 May 2015 the Respondent presented records which demonstrated a 9-hour day, a 7-hour day, three 8-hour days and a further 7-hour day of work that week, and therefore the Complainant would have received his statutory entitlements.
In cross-examination the Respondent acknowledged that they did not maintain a record of the daily rest breaks that were provided to the Complainant as its employees worked in fields and where there would be work teams located in different fields throughout his business with some distance between the fields and the main centre. He therefore maintained that it was not feasible to maintain records at each place of work.
The Respondent also maintained that a truck was usually in the field which provided shelter, and that on the way to the field they would have stopped to facilitate the Complainant and other workers get refreshments for the day.
Response to CAO 00000993-003- Weekly Rest Breaks
The Respondent denied that he failed to provide the Complainant with his weekly rest breaks in accordance with Section 13 of the Organisation of Working Times Act. The Respondent advised that at most times the Complainant would have received a minimum 11-hour break on a Saturday where he would typically have worked no more than 8 hours and would have received a day’s rest break on a Sunday.
The Respondent presented a record of working hours for the twelve month period of the claim being made which demonstrated there was a weekly rest break given on the weeks in contention and that the only Sunday that the Complainant worked during this period would have been on the weekend of the 21st of March 2015 where the Complainant worked a 10-hour Saturday and an 8-hour Sunday. The Respondent acknowledged that he did not provide the Complainant with a compensatory rest for not having his weekly rest break on that week. However, he argued that this was now out of time and should not be subject to a decision by the Adjudicator.
Response to CAO 00000993-004- Daily Rest Breaks
The Respondent maintained that the Complainant did receive his daily rest breaks and that the Respondent was not in contravention of s11 of the Organisation of Working Time Act. The Respondent argued that the Complainant would have received a minimum 11-hour break each day.
Having reviewed the statistics of the week commencing the 12th May 2015 to the 15th May 2015 the Respondent acknowledged that for a number of days that week the Complainant did not receive the minimum 11-hour daily rest break and where the Complainant would have finished working late in the evening and would have returned to work early the following morning, for example on the 12th May 2015 where finished at 11:45 pm and returned to work the following day before 8 am; and with a similar work schedule on the 13th May 2015 where the Complainant finished work after 9 pm and returned to work before 8 am on the following day. The Respondent also acknowledged that a similar work schedule occurred 15th May 2015 where the Complainant was required to work 11 hours and 18 minutes. The Respondent also acknowledged that compensatory rest was not provided to the Complainant on these occasions. However, the Respondent argued that this reference period was in excess of 6 months from the time of the Complaint and therefore the Adjudication was not entitled to consider this matter.
Response CA-00000993-005/006 Provision of Information in Relation to Working Time.
The Respondent contended that he did in fact provide the Complainant with information on the start time of his work each day. As such he advised that a notice would have been in place in the workplace each day advising staff of their start time the following day and that it was not possible to always provide this notice 24 hours in advance due to the nature of work and where the weather forecast was a particular consideration, especially when planting was in operation. As such, depending on the weather forecast, there may be less than 24-hour notice of start time and that everybody was aware of this, but that the Respondent would have provided notice as conveniently as possible. The Respondent advised that the general start time would have been 8am in the morning, but acknowledged this would vary particularly in the busy season, and on such occasions the Respondent would have provided notification to the Complainant of his start times in the best means possible.
The Respondent maintained that due to the nature of the business it was not always possible to advise of the finish time, and in reality the finish time was dependant on a number of issues, including specifically business sales and therefore if an order came in he would have to extend the working hours at short notice. Similarly, if machinery or plant broke down this would affect the finish time, as would the weather during planting times. With regard to the specific claim, the Respondent argued that in the 6 months prior to the claim being made there was no occasion where the finishing time was unreasonably extended, while acknowledging during the week commencing the 11th May 2015 there was a requirement to extended working hours on a number on days. The Respondent argued that the week did not fall into the period of complaint as it exceeded a six-month period and as such it should not be considered. Regarding the week of 16th May 2015 the Respondent confirmed Complainant worked a 47-hour week which was within the statutory limitations.
Overall the Respondent argued that the Complainant would have been aware of the flexibility required due to the nature of work and the Respondent did not accept there was a breach in the Organisation of Working Time Act in relation to not providing an exact finishing time on every occasion to the Complainant as this was not always possible and the Complainant was aware of this.
As the Complainant was referring to instances back to November 2014, some 11 months after they had occurred before submitting his complaint to the WRC, the adjudication needs to consider a preliminary matter regarding the time of the claim being made and whether all of the Complainant’s claim can be heard.
S27 of the Act, as amended by s.8 of the Workplace Relations Act 2015, requires where complaints that an employer has contravened any “relevant provision” (which does not include S.25) should be presented to the Director General of the Workplace Relations Commission within six months of the alleged contravention, unless the Adjudication Officer is satisfied that failure to present the complaint within that period was due to reasonable cause. If the Adjudication Officer so decides the time can be extended to 12 months.
Jurisprudence has established that ordinarily ignorance of one's legal rights could not provide a justifiable excuse for a failure to bring a claim in time. However, as referred to by the Complainant, the Labour Court is prepared to take into account the fact that foreign nationals could not be expected to understand the nature or detail of the process through which their rights might be vindicated: (Rezmerita Ltd v Morkis DWT 17/2010 and Craigfort Taverns v Hubacek DWT 49/2010).
In the case within, the complaint was presented to the WRC on 20th November 2015. Hence, by application of the time-limit at s.27(4), the Adjudication Office can only have regard to contraventions found to have occurred on or after 21st May 2015. However, s.27(5) allows the Adjudication Officer to enlarge the time-limit by up to 12 months where reasonable cause is shown (e.g. to extend it to 21 November 2014).
With reference to the jurisprudence postulated by the Complainant, the Labour Court has decided the test for deciding if reasonable cause was considered by the Court in CementationSkanska (Formerly Kvaerner Cementation) v Carroll [Labour Court Determination WTC0338 (October 28, 2003)]. Here the Court said: -
It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.
In the case within, the Complainant has stated that he was not aware of his rights until he became aware in October 2015 that a colleague had been successful in a similar claim under the Act, and it was only when he became aware of this and brought his complaint to his legal representative, shortly after learning of his colleagues case, that his rights were confirmed to him.
Normally, ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time. In the case within, it is also noted that the Complainant was appointed as a supervisor, but that he was not informed of his obligations to monitor his staff under the Act. As a foreign national it would not be reasonable to assume he would know of his rights, both as an employee and more recently as a supervisor. I am therefore satisfied that these circumstances, and in particular the failure of the Respondent to advise the Complainant as a supervisor, and a foreign national, of his responsibilities to monitor the working time and associated rest breaks, to be particularly significant in this case. Specifically, there was an onus on the Respondent to positively inform the Complainant, as a supervisor, of these obligations, and it did not present evidence that it did so.
The requirement identified by the labour Court and cited above also has a particular significance in the case of non-Irish workers, such as the Claimant, who could not reasonably be expected to understand the nature or detail of his statutory entitlements, his obligations under the Act as a supervisor, or the process through which his rights could have been vindicated. The Complainant only became aware of these rights when he realised in October 2015 that they may have been breached and he referred his concerns to a legal representative. Indeed, it is noted that the Complainant believed the Respondent was acting within the law, he was told if he did accept the work practices he would have not job, and therefore he had no concerns at that time of any breaches until they were independently asserted to him by his legal representative. Remarkably the Respondent advised the hearing that as a supervisor the Complainant would have known his rights, yet they acknowledged they did not provide him with any training or notification of his obligations under the Organisation of Working Time Act 1997.
In considering this matter I also refer to DWT 72/2015 (In Alert One Security Ltd v Khan), where the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint, and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met.
I therefore find there are reasonable grounds to extend the period to 12 months, and I consider matters from the 21 November 2014 as being legitimate to be heard.
Decision Regarding CA-00000933-001 Average Working Week
S15(1). Of the Act regarding Weekly Working Hours requires
(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 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.
S15 (5) states:
(5) Where an employee is employed in an activity (including an activity referred to in subsection (1)(b)(i))—
(a) the weekly working hours of which vary on a seasonal basis, or
(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,
then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1)(c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).
As the Complainant was employed in Agriculture, his weekly hours are averaged over a six-month period by virtue of The Organisation of Working Time (General Exemptions) Regulations 1998 (Consolidated) S.I. No. 21 of 1998, as amended by S.I. Nos. 817 and 819 of 2004.
As the reference period for the Complainant commences on 21 November 2014, his calculations can only be made from that date.
Having reviewed the record of the working hours for the Complainant which were recorded by the Respondent and not disputed by the Complainant I do not find that his working week, averaged over a six-month period, exceeded a 48 hour working week on average.
I therefore do not uphold this complaint.
Decision Regarding CA-00000933-002- Rests and Intervals at Work
The Organisation of Working Time (General Exemptions) Regulations 1998 (Consolidated) S.I. No. 21 of 1 998 as amended by S.I. Nos. 817 and 819 of 2004, prescribe that persons employed in Agriculture shall be exempt from the application of Sections 11(Daily Rest Periods), 12 (Rests and Intervals at Work), 13 (Weekly Rest Periods), and 16 (Nightly Working Hours) of the 1997 Act. However, in accordance with SI 21 of 1998, the availability of the exemption from the requirements of ss.11, 12, and 13 of the Act is conditional on compliance with:
- reg.5 Duty of employer with respect to the health and safety of employee:
- (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 hour’s 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.
- Reg.4 Compensatory rest periods:
- 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.
S25 Records of the Act requires that:
- An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act …are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
- An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
3. Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act... in relation to an employee, the onus of proving, in proceedings before [an adjudication officer] or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
The Respondent argued that as the Complainant was a supervisor he was directly responsible for monitoring and providing the work breaks and therefore the employer was not responsible if the Complainant did not avail of his intervals at work breaks. In Nurendale Ltd v Suvac DWT 19/2014, the Labour Court said that the Act placed an obligation on employers to maintain records of working time and breaks. That obligation could not be transferred by contract or otherwise to an employee so as to relieve an employer from its statutory duty to comply with this section. However, as the recording of breaks is not a “relevant provision” for the purposes of s.27, an Adjudication Officer has no jurisdiction to investigate any alleged contravention of same.
Notwithstanding the Respondent accepts that it did not maintain records in accordance with the statute in relation to intervals and breaks at work. Consequently, the Respondent bears the legal burden of proving compliance with the Act in respect to the matters in issue in this complaint. It is self-evident that proper records are of central utility in defending a claim of non-compliance and can be determinative in showing compliance.
I therefore find that on occasion the Complainant did work in excess of 10 hour days and only received a single one-hour interval break during his working day. In particular, during the week of 12 May 2015 I find that the Complainant worked four consecutive days of 12hrs 44 mins, 11hrs 41 mins, 10hrs 21 mins and 11hrs 18mins, and where he did not receive his statutory intervals at work break as per s12 of the Act. In addition, as the purpose of s12 of the Act is to ensure a safe working environment it is an imperative that the employer, in accordance with the relevant Regulations provides its employees with a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break. When determining when compensatory rest is to be given, an employer should always have regard to the circumstances pertaining in the individual place of employment and to the health and safety requirements for adequate rest. In this context, it is important that the compensatory rest for rest breaks at work, and for daily rest breaks, in particular, be provided as soon as possible and, generally, in an adjacent time frame.
I therefore uphold that the Respondent is in breach of s12 of the Act and find against the Respondent accordingly.
Decision Regarding CA-00000933-003 Weekly Rest Breaks
With reference to the work period up to 12 months prior to the Complainant’s termination of employment, the Complainant acknowledged there was one occasion where he was required to work on a Saturday for 10 hours and the following Sunday for 8 hours, and where he did not receive his weekly rest break or compensatory rest. The records indicated that this would have occurred on the Saturday the 21st and Sunday the 22nd of March 2015, and where the Complainant continued to work the following week up to the Saturday the 28th of March 2015.
It is noted that the Complainant was not provided with a compensatory rest break after this working time and as such the Respondent has contravened its obligations under s13 of the Act, albeit on only one occasion.
The Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order 1998 (Consolidated) S.I. No. 44 of 1998 prescribes that a common sense approach should be adopted by employers and employees in situations where rest breaks cannot be provided in accordance with the Act, or in exempt sectors such as agriculture. The approach adapted should take account of the circumstances existing in the employment and have regard to the safety, health and wellbeing of employees. It would be desirable that employers and employees and/or their representatives agree appropriate protection measures as respects an employee's conditions of employment. While the regulation identifies that it is not feasible to define such appropriate protection/conditions of employment measures, the concept might include measures which provide for, in addition to normal health and safety requirements:
(i) enhanced environmental conditions to accommodate regular long periods of attendance at work;
(ii) refreshment facilities, recreational and reading material;
(iii) appropriate facilities/amenities such as television, radio and music;
(iv) alleviating monotonous work or isolation;
(v) transport to and from work where appropriate.
In this instance the Respondent did require the Complainant to work long hours due to seasonal variations, weather conditions, and sales demands. Whilst a breach in relation to the weekly rest break has only occurred once over the period under complaint, the Respondent failed to demonstrate that they reasonably engaged with the Complainant to agree appropriate protection measures. I therefore uphold this Complaint.
Decision Regarding CA-00000933-004 Daily Rest Breaks
S.11 of the Act requires that 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. The evidence provided demonstrates that over the period of the complaint the employer did not provide the Complainant his daily rest break of 11 consecutive hours on a number of occasions, and failed to offer any equivalent compensatory rest.
With reference to jurisprudence the Labour Court in Michael O'Neill Mushrooms Ltd v Tiatova [DWT 103/2012], a case which concerned alleged non-compliance with a daily rest break, the Court found that under Regulation 4 of the Organisation of Working Time (General Exemptions) Regulations 1998 (Consolidated) S.I. No. 21 of 1998 that what is required is “a positive demonstration that an equivalent rest period to the statutory 11-hour consecutive break has been made available to and availed of by the worker concerned”. The court added that the employer was also required to demonstrate that the equivalent break had been provided to the worker “at the first available opportunity to do so”.
In deciding on this matter I am also conscious that the Labour Court will determine that discussions take place as to how rest periods can be implemented for the employees concerned. The Code of Practice on Compensatory Rest Periods (S.I. No. 44 of 1998) should be used as a guide in those discussions, as referred earlier in my decision.
I therefore find that the Respondent has failed to meets its obligations under s.11 of the Act and I uphold this complaint.
Decision regarding CA-00000933-005/006 Provision of Information in Relation to Working Time.
S17 of the Act requires the Provision of Hours in relation to working time as follows:
1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.
2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week….
4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.
5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.
This section provides that an employee shall be entitled to be notified in advance of the hours which the employer will require the employee to work, subject to unforeseen circumstances justifying a change in the notified times. In addition, the employer must have regard to the employees contract of employment. The Labour Court has determined (Lucey Transport Ltd v Serenas DWT 141/2013) that “where, however, an employee's starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work/life balance reasonable notice of starting and finishing times must be furnished by the employer.”
In this case the contract employment did indicate start and finish times, but with an understanding that the Complainant would be flexible. Clearly a pattern had developed over the years that the Complainant’s start and finish time would change depending on the season, the weather, and the sales demands. The Respondent has argued that it was not always possible to provide the start time 24 hours in advance, particularly with regard to the weather forecast. However, I am satisfied that a notice was placed as soon as possible in the yard to advise the Complainant of the start time. This never appeared to be a problem to the Complainant at the time.
Having reviewed the working times of the Complainant over the time being considered (21 Nov 2014 to 26th May 2015), I am satisfied that on most weeks over this period the Complainant did work late on one or more days, and particularly in March 2015, April 2015 and May 2015. Whilst the Respondent has indicated that it was for unforeseen circumstances that the start and finishing hours changed at short notice, I am not satisfied in light of the frequency of these events that they were of such an unforeseen nature that the Respondent could not have predicted a requirement for an early start or late finish at least 24hours in advance of many of the days in question.
I therefore uphold the complaint, and find that in particular for the weeks of 16th March 2015, 13th April 2015, 27th April 2015, and 11th May 2015 that the Respondent failed to provide the Complainant with sufficient notice of his start and finish times.
In consideration of the above issues I make the following decision:
As the Respondent has been found to be in breach of ss11,12,13, and 17 of the Act, in accordance with s41 of the Workplace Relations Act 2015, I find the Complaints well founded. I therefore require the Respondent:
- to properly record the rest and intervals at work provided for its employees in accordance with the Organisation of Working Time (Records) Regulations 2001 (Consolidated) S.I. No. 473 of 2001
- to provide suitable and reasonable facilities/amenities to ensure its employees can partake in such rest and intervals at work, and to ensure the Respondent meets with their obligations in accordance with the guidelines set out in S.I. No. 44 of 1998 when providing rest breaks;
- agrees appropriate protection measures with its employees as respects its employee's conditions of employment with regard to the arrangements for compensatory rests and breaks, or arrangements regarding extended working hours as permitted within the Act;
- reviews its notification of start and finish time to ensure adequate and reasonable notice is provided to all employees in accordance with the Act particularly for periods where the change to start and finish time is reasonably foreseeable;
- pays the Complainant compensation to the amount of €2,500 for the contraventions of the Act which were found to have occurred. This compensation is not in respect of remuneration.
Dated: 9th December 2016