ADJUDICATION OFFICER DECISION
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 following 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 is employed by the Respondent as a retained firefighter. The Complainant alleges that, during his employment with the Respondent, he was on-call for 168 hours a week for at least 26 weeks of the year and that this time qualifies as working time for the purpose of the Organisation of Working Time Act, 1997. The Complainant relies on the CJEU decision in Ville de Nivelles v Rudy Matzak (Matzak) in support of his claim.
The following complaints were withdrawn at the hearing: CA-00028526-001, -002, -003, -004, -005, -006, -007, -008, -009, -010.
Summary of Complainant’s Case:
Summary of Respondent’s Case:
The Respondent submits as follows:
The Complainant is employed as a retained firefighter. Retained firefighters make up about 70% of the fire service in Ireland, with full-time firefighters in major cities. Retained firefighters of which there are approximately 2060 employed across the country in 202 fire stations. The delivery of fire services by way of retained fire services is common not just in Ireland but across the EU.
Whilst not attending at incidents the availability of retained firefighters does not require them to be in attendance at the fire station, they operate on the basis which requires them to be available within a specified distance of the fire station so that they can respond to an alerter and mobilise within a specified period of time. This availability is not considered to be working time. It is important to note that at this period of time where they are required to be available, retained firefighters can engage in other activities and be employed by other parties.
It is the position of the Respondent that Article 17 of the Directive identifies a number of areas where derogation from the rights conferred by the Directive is permitted. In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 and 16 for certain cohorts of employments including:
(iii) press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;
These derogations as they apply to the role of retained firefighter are provided in this Jurisdiction by S.I. No. 21/1998 - Organisation of Working Time (General Exemptions) Regulations, 1998 (Appendix 1) and by the Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 (S.I. No. 52 of 1998), (Appendix 2).
These provide as follows;
The persons employed in each of the classes of activity specified in the Schedule to these Regulations are, as respects the carrying out of the duties involved in that activity, hereby exempted from the application of sections 11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997 (No. 20 of 1997).
The schedule specifically provides as follows: The activity of a person employed by a fire authority in the position commonly known as retained fire fighter.
With regard to the complaint made by the Complainant as they relate to sections of the Act which are not directly covered by S.I. No. 21/1998 - Organisation of Working Time (General Exemptions) Regulations, 1998 and by the Organisation of Working Time (Exemption of Civil Protection Services) Regulations 1998 (S.I. No. 52 of 1998) the following is the position.
With regard to the complaint under section 14 of the Act as it relates to additional payment in respect of attendance on Sundays. The Respondent is satisfied that the Complainant receives his appropriate entitlement. Retained firefighters receive a premium payment in respect of attendance at weekends this payment encompasses the premium for Sundays.
With regardto the complaint under section 17 of the Act as it relates required attendance at incidents the Respondent is satisfied that both the contract of employment and collective agreement specifies the normal weekly attendance of the Complainant In addition in each week that he is required to work, he can advised with regard to his non availability.
With regard to the complaint under section 19 & 20 of the Act, the Respondent is satisfied that the Complainant receives his appropriate entitlement. The basis of the calculation of holiday pay is set out in legislation as follows. Section 20 of the Act provides that pay in respect of holidays shall be at the employee’s “normal weekly rate”. Section 20(4) of the Act provides: “In this section ‘normal weekly rate’ means the normal weekly rate of the employee concerned pay determined in accordance with regulations made by the Minister for the purpose of this section.”Regulations pursuant to this provision were made by S.I. No.475 of 1997 and entitled Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997. The Respondent is satisfied that payment for annual leave is in accordance with these regulations
The nature of the calculation of holiday pay for retained firefighters because of the atypical nature of their employment is as follows; they receive the retainer continuously in full across the year including periods whilst on annual leave i.e. 52 weeks paid on a four-quarterly basis. Separately they then receive 8% annual leave entitlement based on other earnings which they are paid for i.e. attendance at drills and incidents. as the nature of their required attendance at incidents does not form a defined pattern and, therefore, could affect the level of payment based on the time of the year that the individual takes their holidays, on that basis it is necessary to calculate the 8% of those earnings in arrears. In accordance with the national agreement between Management and SIPTU (Appendix 3), it has been the practice that at the end of every calendar year a calculation is undertaken on their earnings outside that of the retainer (which as set out above is already paid to them whilst on holidays). A payment is then made to the firefighter of 8% of these earnings. This completes the payment of holiday pay.
The Respondent pays in full for the Complainant’s holiday pay. He is entitled to take his leave during the course of the year. He is paid his full retainer during his leave because earnings need to be assessed for a full annual period in order to determine the amount of the 8%, payment cannot be made until the next year. This payment is provided for in the next annual first quarter payment to firefighters.
It has been accepted in all jurisdictions that the clear purpose of the Act as it relates to annual leave is to ensure that for either annual leave or public holidays an employee receives no less (or no more) than he or she would have received if he or she was working during the period in question. The Respondent is satisfied that this requirement is met
With regard to complaint under section 21 of the Act in respect of payment for attendance at incidents on Public Holidays the Complainant receives additional remuneration in accordance with the provisions of section 21 the Organisation of Working Time Act
The Complainant is seeking to rely on a preliminary ruling of the Court of Justice of the EU in Ville de Nivelles v Rudy Matzak. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure in this instance Belgium. However, it is accepted that national courts interpreting EU law can take them into account. However, it is done so with regards to facts of the respective cases. It is the position of the Respondent that the case of Ville de Nivelles v Rudy Matzak is not on all fours with the facts of this case and can be distinguished in that Mr. Matzak was a volunteer firefighter whilst the Complainant is a retained firefighter, they are two totally different types of employees.
Mr. Matzak’s primary complaint was that he was not compensated to be available, while restricted to remaining at his home and prevented in undertaking work elsewhere, the Complainant in this case was compensated, was not restricted to remain at home, and was free to commit to and undertake work elsewhere. The key element is that the Complainant like all other retained firefighters is free to engage in other employments or other activities as he so wishes, and it is believed that he does so.
The purpose and scope of the Directive is defined at Article 2 which provides the following definitions of the expressions "working time" and "rest period": " 'working time' means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice; and 'rest period' means any period which is not working time."
With regards to working time the CJEU has given specific definition in relation to this in particular, the ECJ cases of Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria de Sandidad eY Consumo de la Generalidad Valenciana  IRLR 845 and Landesshauptstadt Keil v Jaeger IRLR 804 ("the SIMAP and Jaeger cases"). The CJEU held that the time spent ‘on-call’ by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace and that by contrast, where workers must be reachable at all times but are not required to remain at a place determined by the employer, also called ‘standby time’, only the time linked to the actual provision of services must be regarded as working time.
The Court has repeatedly held that the concept of ‘working time’ under Directive 2003/88 is an autonomous concept of EU law, which must be defined in accordance with objective considerations by reference to the scheme and purpose of that directive, intended to improve workers’ living and working conditions. It requires that three conditions be satisfied. First, the worker must be ‘at work’; second, he must be at the employer’s disposal; and, third, he must be carrying out his activity or duties.
The onus is therefore on the Complainant to prove that for the periods in question he met these criteria. If he was engaged in other activities for this time period which are the subject of his complaint, he cannot de facto meet the criteria and his complaint is moot.
The conditions of employment for all retained firefighters provide that a firefighter can be in employment with another employer however the firefighter must ensure that an employer is willing for the firefighter to be released from the working hours of that employer once alerted.
Individuals employed as a retained firefighter if not employed, may qualify for a jobseeker’s payment from the Department of Employment Affairs and Social Protection. People who are working as retained fire fighters do not have to sign off for the days they are on call, firefighting or training. This means that they can be paid a jobseeker’s payment for days that they are on call, firefighting or training. This requirement is not considered by the Department of Employment Affairs and Social Protection as a restriction on the availability for work, so long as the individuals are satisfying the conditions of the scheme. This would appear to contradict the Complainants claim as predicated on the decision in Matzak.
A retained firefighter is paid a retainer, this payment is by definition an amount that is paid to someone so as to be sure that that person can work for the person paying the retainer when needed. This cannot in itself constitute working time. Separately when this work is undertaken the person to whom the payment is made is entitled to remuneration for this specific work. The payment of a retainer and payment for work undertaken are entirely separate. Therefore, the availability that is provided for under a retainer could not be considered working time.
It should be noted that the annual retainer allowance is a set figure and is not related to activity. In contrast, the other payments made to retained firefighters are calculated as and when the corresponding tasks are completed.
It is the position of the Respondent that for retained firefighters there is a clear distinction between being required to be available for work and actually carrying out their contractual duties. There is no obligation on the Complainant to carry out their contractual duties in the period for which the retainer applies unless alerted to do so. Once they are alerted and attend the fire station it is accepted that this period of time will be considered as carrying out their contractual duties and therefore working hours. On this basis there is no employment relationship existing for this availability/retainer period.
In its decision the Court advised that a worker being required to be physically present at a place determined by the employer and to be available to the employer to provide services immediately, where it is impossible for the worker concerned to choose the place where they stay during stand-by periods, must still be regarded as coming within working time. However the situation is different where the worker performs a stand-by duty which requires that the worker be permanently accessible without being required to be present at the place of work or remain permanently at another location. Even if he is at the disposal of his employer (since it must be possible to contact him), in that situation the worker may manage his time with fewer constraints and pursue his own interests, and accordingly only the time linked to the actual provision of services must be regarded as working time.
The essential feature of an employment relationship is, according to the CJEU case‑law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, in particular, Case 66/85 Lawrie‑Blum  ECR 2121, and Kurz v Land Baden-Wurttemberg  EC 1-10691
The ECJ decision in Lawrie-Blum v Land Baden-Wurttemberg  ICR 483, stated at paragraph 17 of its judgment that;
"That concept (ie of "worker") must be defined with objective criteria which distinguish the employment relationship by reference to the rights and duties of the persons concerned. The essential feature of an employment relationship, however, is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration."
In Kurz v Land Baden-Wurttemberg  EC 1-10691, the Court stated at paragraph 32 of its judgment that;
"32. - In order to be treated as a worker, the person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal or ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the directions of another person in return for which he receives remuneration
The Court in making its decision in Matzak stated that a contractual relationship “very significantly restricting the opportunities for other activities, must be regarded as ‘working time’”. The nature of the relationship between the Respondent and the Claimant outside of what is considered to be contractual hours once alerted to an incident, is characterised by the exercise of free choice, free from the direction of the employer, and free to undertake other employment or activities. This differentiates the Complainant from other CJEU cases for instance the constraints upon the doctors in SIMAP and Jaeger were different. Both had obligations. Both were not free of their employer’s control. The degree of control over the place in which the work was to be performed, and where the employee was to remain whilst on call, was plainly of a different dimension from that of a retained fire fighter, who has freedom of choice in relation to their location, availability and activity e.g. working elsewhere or otherwise.
The contractual relationship between the parties is clear, the Complainant receives a retainer to be available, however the payment of a retainer does not preclude a firefighter from taking up other employment or being available to take up other employment or to undertake education courses, or to engage in sporting or social activities etc that the time is their own and they are free to pursue activities as they see fit. Retained Personnel are not confined to their homes and have a choice of what to do with their time and engage in other activities when they are required to be available and not required to work.
The Respondents believe that the position of the Complainant from that of Matzak case can be distinguished in that options were available to him to stand down and that there were active arrangements available to him within the fire station to mark himself as being unavailable if he so wished. In addition to annual leave there are also provisions in place for casual leave aspects of the job which allow for all personnel to avail of structured time off. The provisions of the 1999 Composite agreement clearly reflects the position that a firefighter can seek to be marked as unavailable.
The Respondents also believe that the position of the Complainant from that of Matzak case can be distinguished in that there is no absolute requirement to attend to calls when contacted and that the firefighter can make the decision as to attend or not. They have discretion to not attend up to 25% of the alerts, meaning that the time is their own and they can indeed decide whether to report to the Respondent for work or not or being in full time education or engaging in other sporting or social activities. So, the retainer does not place an absolute requirement on attendance where in general, contracts of employment do place an absolute requirement on attendance for contractual hours unless otherwise excused such as by reason of illness.
Whilst there is a requirement on the respondent to attend at the station as soon as possible when alerted if a firefighter attends up to 15 minutes after being alerted, he is still entitled to payment for one hour.
In relation to drills/training while there is weekly training, there is no absolute requirement for retained firefighters to attend all such sessions (85% attendance rate)
Without prejudice to the above it is the position of the Respondents that it did at all times apply what it believed were the required statutory obligations under the Organisation of Working Time Act with regard to the working time of retained firefighters. It does not at any time refuse minimum rest periods during what it considers to be working periods. In the event of protracted fire incidents staff were provided with break periods and minimum rest periods in accordance with the legislation.
Without prejudice to the above the Complainant is placing significant reliance on the decision in Matzak which issued on the 21st February 2018 The Complainant may also reference the judgment of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-Westfalen. Whilst some cases may involve breaches that are major and deliberate with serious consequences for the employees involved at all times the fire service are cogniscent of the health and safety of firefighters and will stand down firefighters if there are concerns. The system of retained firefighters has existed in this State in excess of fifty years. There has been no intentional breach of the Act if Local Authorities are required to apply the provisions of Matzak it will effectively require the cessation of the retained fire service and implement a new and radically different model for the delivery of fire services which will require significant infrastructural change which cannot be implemented in the short term and in any intervening period fire services must continue to be provided.
The distinction between the Matzak case and the Complainant’s position is reflected in questions 3 & 4 referred to the Court of Justice which were very specific to the issue of being required to be physically at home;
3. Taking account of Article 153(5) TFEU and of the objectives of Directive 2003/88 concerning certain aspects of the organisation of working time, must Article 2 of that Directive, in so far as it defines the principal concepts used in the Directive, in particular those of working time and rest periods, be interpreted to the effect that it is not applicable to the concept of working time which serves to determine the remuneration owed in the case of home-based on-call time?
4. Does Directive 2003/88 of 4 November 2003 concerning certain aspects of the organisation of working time prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?
Within the ruling itself the Court determined that its decision making was based on the facts as presented which were “In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.” No similar requirement to remain at home applied to the Complainant. This therefore differentiated the Complainant’s position from that of Mr. Matzak in that for the time that the Complainant was required to be available he enjoyed a much wider range of options to utilise this time
The Respondent believe that the position of the Complainant is more effectively reflected by the Court in paragraph 60 of its judgment in Ville de Nivelles v Rudy Matzak Case C‑518/15 where it stated that;
“Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C‑151/02, EU:C:2003:437, paragraph 65 and the case-law cited).”
For the reasons as set out above the Respondent would ask the Adjudicator to dismiss the complaints under the Organisation of Working Time Act
National Minimum Wage
It is the position of the Respondent that the claim as submitted by the Complainant is specifically excluded by section 8.2 of the National Minimum Wages Act which provides at section 8(2)(i) that “working hours” shall not include “time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call”.
It is the position of the Respondent that the WRC does not have jurisdiction to consider this ruling in any consideration of the case. In making this assertion the Council rely on the Decision of the High Court in Minister for Justice, Equality and Law Reform v The Equality Tribunal 20 E.L.R. 116, the Ratio Decidendiof which is set out as follows:
“There is no principle of European law which allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to achieve a result, whereby it is of the view that European legislation has not been properly implemented at national level and that this situation is to be remedied by the re-ordering in ideal form of national legislation. The limit of jurisdiction is of primary importance to the exercise of authority, whether the court be one established as an administrative body, or is one of the courts under the Constitution. In the event that a view emerges that national legislation has not properly implemented European legislation, this is no more than an opinion. The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of the Constitution. The respondent is bound by S.I. No. 749 of 2004 fixing the upper age for admission to training as a member of An Garda Síochána at 35 years”.
The Tribunal/WRC appealed to the Supreme Court which delivered a judgment on June 15, 2017. The Supreme Court confirmed the finding of the High Court, that the WRC does not have jurisdiction to disapply national law. The specific case was referred to the CJEU which ruled that the WRC did have jurisdiction as it relates specifically to EU legislation, however this ruling is not relevant in this instance to a claim under the National Minimum Wages Act as this legislation does not derive from EU legislation. There is no EU legislation to implement as it relates to national minimum wages, it is a matter of fact that a number of EU states do not have minimum wage legislation.
The Respondent believes that based on the above that the WRC is not empowered, under national law, to proceed with a hearing, “which implicitly assumed competence to overrule or disapply national legislation”.
Without prejudice to the above it is the position of the Respondent that the ECJ specifically addressed the issue of remuneration at paragraph 52 of their judgment on Ville de Nivelles v Rudy Matzak at Paragraph 52 as follows:
“Having regard to the foregoing, the answer to the third question is that Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the classification of those periods as ‘working time’ or ‘rest period’.
Therefore, it is the position of the Respondent hat the provisions in place in respect of the payment of the retainer are in accordance with the provisions of judgement of the ECJ and no underpayment arises.
For the reasons as set out above the Respondent would ask the Adjudicator to dismiss the complaint under the National Minimum Wage Act.
Findings and Conclusions:
I note the Complainant’s contention that he was at the Respondent’s disposal for all the time that he was on-call as a retained firefighter and, that due to the geographical and temporal constraints placed upon him whilst on-call, the entirety of the time spent on-call qualifies as working time for the purpose of the Organisation of Working Time Act, 1997.
The Complainant’s claim is grounded on the decision of the Court of Justice of the European Union (CJEU) in Case C-518/15 Ville de Nivelles v Rudy Matzak (Matzak).
The matter for me to decide, therefore, is if the factual matrix giving rise to the herein case is at one with the factual matrix in the Matzak case.
Definitions of Working Time
Article 2(1) of Directive 2003/88/EC defines working time as follows:
“working time” means any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.
Working time is defined by section 2(1) of the Organisation of Working Time Act, 1997 as follows:
““working time” means any time that the employee is—
( a) at his or her place of work or at his or her employer’s disposal, and
( b) carrying on or performing the activities or duties of his or her work,”
Case C-518/15 Ville de Nivelles v Rudy Matzak ECLI:EU:C: 2017: 619(Matzak)
The facts giving rise to Matzak are set out at paragraph 10 of the opinion of Advocate General Sharpston as follows:
“Mr Rudy Matzak is a retained firefighter for the Ville de Nivelles (Town of Nivelles), Belgium. Under the arrangements which apply to his engagement, he is required to be available on call for work, for one week out of every four, during the evenings and at the weekend. He is paid only in respect of time when he is on active service. Time spent on call without the firefighter being required to carry out any professional duties (so-called ‘stand-by time’) is unpaid.”
As is clear from the above passage, that Mr Matzak was rostered as being on-call for a defined period for one week in every four. However, one of the central elements of the herein claim is that, due to the on-call nature of his position, the Complainant was on-call for 168 hours a week for at least 26 weeks a year. I find that this represents a significant material difference in the factual matrix of the herein case and that of Matzak.
The Matzak decision was issued by the CJEU in response to a request for a preliminary ruling from the cour de travail de Bruxelles (Higher Labour Court, Brussels) in the proceedings Ville de Nivelles v Rudy Matzak. The cour de travail referred a number of questions to the CJEU including question 4 which related to home-based on-call time and read as follows:
“Does Directive 2003/88 … prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within 8 minutes) very significantly restrict the opportunities to undertake other activities?”
The CJEU responded to the above question at paragraph 66 of the judgement in the following manner:
“… the answer to the fourth question is that Article 2 of the Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.”
It is clear from the above that the CJEU considered the fact that Mr Matzak was required to be physically located at home during the period of standby was determinative in their finding that such periods must be regarded as working time.
Moreover, I note that at paragraphs 59 and 60 in Matzak, the CJEU found as follows:
59. Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of 'working time’ within the meaning of Directive 2003 88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties (see, to that effect, judgment of 9 September 2003, Jaeger, C-15//02, EU:C:2003:437, paragraph 63, and order of4 March 2011, Grigore, C-258 10, not published, EU:C:2011: 122, paragraph 53 and the case-law cited).
60. Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as 'working time', within the meaning of Directive 2003/88 (see, to that effect, judgment of 9 September 2003, Jaeger, C-151/02, EU:C:2003:437, paragraph 65 and the case-law cited). [Emphasis added]
I also note in Matzak at pars 63, 64 and 65 the CJEU found as follows:
63. The obligation to remain physically present at the place determined by the employer and the geographical and temporal constraints resulting from the requirement to reach his place of work within 8 minutes are such as to objectively limit the opportunities which a worker in Mr. Maztak’s circumstances has to devote himself to his personal and social interests.
64. In the light of those constraints, Mr. Matzak’s situation differs from that of a worker who, during his standby duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.
65. In those circumstances, it is necessary to interpret the concept of ‘working time’ provided for in Article 2 of Directive 2003/88 as applying to a situation in which a worker is obliged to spend stand-by time at his home, to be available there to his employer and to be able to reach his place of work within 8 minutes.
Unlike Mr Matzak, the Complainant was not required to remain at a location determined by his employer for the period that he was on-call. Even though there were temporal and geographic constraints placed on the Complainant whilst he was on-call, he was free to take up employment during that period. In fact, the Complainant worked as a electrician whilst he was employed as a retained firefighter. Accordingly, I find that this represents another significant material difference between the two cases.
Based on the totality of the evidence adduced, I find that contrary to the Complainant’s contention, the herein case is not on all fours with Matzak and that there are significant material differences in the factual matrix of the Matzak case and that of the herein case. Accordingly, I find that the Complainant cannot ground his case on the Matzak decision.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Given my finding that the Complainant cannot avail of the Matzak decision, I find accordingly that the Complainant’s periods of on-call do not fall with the definition of working time as provided for under the Organisation of Working Time Act, 1997. I find, therefore, that complaint application numbers CA-00028311-001, -002, -003, -004, -005, -006, -007, -008, -009, -010 and CA-00029526-001, -002 contained within are not well founded.
Dated: December 17th 2019
Workplace Relations Commission Adjudication Officer:
Retained firefighters, working time; on-call; Matzak