ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014419
A Sports Stadium
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
Date of Adjudication Hearing: 15/08/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced his employment, as a groundsman, with the Respondent, a Sports Stadium, on 25 May 2005.
The Complainant submitted his complaint to the WRC on 23 April 2018, claiming breaches by the Respondent of the Organisation of Working Time Act, 1997, in relation to minimum daily rest periods.
Summary of Complainant’s Case:
The Complainant submitted that he works a five-day week schedule - Tuesday through to Saturday. During the period to which the complaint refers, the Complainant stated he worked from 9:00am to 3:30pm on Tuesdays/Thursdays at 8:30am to 2:30am on Wednesdays.
As the Stadium operates two nights per week, (Thursdays and Fridays), the Complainant’s evidence shows that his working hours on those days are as follows: Friday 2:30pm to 11:30pm and Saturday 3:30pm to 11:30pm.
In addition, the Complainant submitted that he is required to work on a Saturday morning from 8:30am to 12:30pm. The Complainant’s complaint relates to this shift, as he contends that the 11:30pm finish time on a Friday night and the 8:30am start on a Saturday morning results in a daily rest period of nine hours, which he claims is in breach of the 11-hour rest period provided for in Section 11 of the Organisation of Working Time Act, 1997.
Based on the above, the Complainant is contending that he is not in receipt of the minimum daily rest period for Friday night/Saturday mornings. In addition, the Complainant submits that he has a 45-minute commute, each way, to and from work during that rest period.
Summary of Respondent’s Case:
In response to the Complainant’s complaint, the Respondent accepted the hours of work as presented by the Complainant. However, the Respondent pointed out that the Complainant’s shift pattern changed in March 2018, when the 8:00am to 12:30pm shift on a Saturday was abolished and his working hours on Saturdays were amended to 12:30pm to 11:00pm.
In relation to the Complainant’s substantive claim with regard to breaches of the Act in relation to daily rest periods, the Respondent submitted that on Tuesdays/Wednesdays/Thursdays the Complainant was facilitated with daily rest periods of 18, 19 and 24 hours respectively. While acknowledging that the rest period between Friday night and Saturday morning was nine hours, the Respondent submitted that the Complainant had a three-hour break in the middle of the day on Saturdays.
The Respondent submitted that they did not require the Complainant to work in breach of the Act. They stated that this was not the standard work pattern as it consisted of two shifts. The Respondent also submitted that Section 4 (1) of the Organisation of Working Time Act, 1997, applies to the effect that the Complainant is not covered by Section 11 of the Act.
Finally, the Respondent submitted that the Complainant never brought the matter to the attention of their Head Office. It was submitted by the Respondent that the first their Headquarters knew about the issue was when they received an email from the Complainant on 19 March 2018. The Respondent further submitted that despite the Complainant being well aware of their Grievance Procedures, he never submitted a grievance.
Findings and Conclusions:
The Complainant’s claim is based on his contention that his employer is in breach of the Organisation of Working Time Act, 1997, with regard to the provision of daily rest periods.
Section 11 of the Act, states as follows:
(11) - “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.”
Having carefully considered the evidence adduced, I find that there are four periods during the Complainant’s working week when a daily rest period applies. For three of the four periods in question I note that the Complainant is provided with rest periods of 18, 18.5 and 24 hours respectively. Clearly, these rest periods are well in excess of those stipulated in Section 11 of the Act above.
With regard to the final rest period of his working week the Complainant has a rest period of nine hours between finishing work at 11:30pm on Friday and commencing work at 8:30am on Saturday. The Complainant’s claim is based on this specific rest period.
In their response to the Complainant’s claim, the Respondent contends the Section 4 of the Act applies in this case.
Section 4 (1) of the Organisation of Working Time Act, 1997, states as follows:
4.—(1) “Without prejudice to section 6 , section 11 or 13 or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11 or 13 or, as the case may be, both those sections”.
Having carefully considered the evidence as presented, I find there is a basis to the Respondent’s contention that this section of the Act applies to the Complainant and, as a result, that Section 11 of the Act, in respect of daily rest periods, does not apply to him.
In addition, I note the provisions of Section 6 (2) of the Act which states as follows:
6.— (2) “Where by reason of the operation of subsection (1) or (2) of section 4, or section 5 , an employee is not entitled to the rest period or break referred to in section 11 , 12 , or 13 the employer concerned shall—
(a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or
(b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee's conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5”.
With particular reference to Section 4(2)(a) above, I am of the view that the Respondent has made available a rest period break that, in all the circumstances, could reasonably be regarded as adequate compensation for the fact that the Complainant’s rest period of nine hours between Friday night and Saturday morning is two hours short of that required under Section 11 of the Act.
This view is based on the fact that the Complainant has three rest periods between Tuesday and Friday which are almost double the statutory requirement for the period in question. In addition, the Complainant enjoys a rest period of 57 hours between finishing work on Saturday night and recommencing on Tuesday morning.
The Organisation of Working Time (Code of Practice on Compensatory Rest and Related Matters) (Declaration) Order, 1998 (S.I. No.44/1998), states as follows at Section 3 (General Principles of and Arrangements for Equivalent Compensatory Rest and Appropriate Attention):
1. “Appropriate rest breaks from work are vital to the health and safety of workers and are of importance in the efficient and effective operation of the workplace. While the Organisation of Working Time Act, 1997 specifies minimum rest breaks employers may provide longer breaks.
Compensatory Rest Timescale (Section 6 (1) and 6(2) of the Act)
2. “Exempted employees who miss out on their statutory rest entitlements should receive equivalent compensatory rest as soon as possible after the statutory rest has been missed out on. It is important for employers to make rest time available to employees to allow them to recuperate from long periods of work without adequate rest. The Organisation of Work Time Act, 1997 and the EU Directive on Working Time do not specify any timeframes within which compensatory rest must be made available. However, 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 timeframe.”
Taking all of the above into consideration, I’m satisfied that the Respondent is cognisant of the health and safety aspects of workers, which is at the core of both the national legislation and EU directive. When taking into consideration the overall length of breaks and rest periods provided to the Complainant throughout the working week, I find that the Respondent is providing more than adequate compensatory rest periods for the one occasion during the week when the rest is less than that provided for by statute.
I also note that the Respondent has changed the Complainant’s shift patterns to the effect that the early morning shift on Saturdays has been permanently eliminated from his work pattern.
Consequently, having carefully considered all of the evidence adduced, I find that the Complainant’s complaint is not well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Complainant’s complaint that the Respondent is in breach of the requirements of the Organisation of Working Time Act, 1997, with regard to daily rest periods, is not well founded.
Dated: 14th August 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Organisation of Working Time Act
Daily Rest Periods