ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031749
Parties:
| Complainant | Respondent |
Parties | Niall Walsh | Road Safety Operations Ireland Limited Go Safe |
Representatives | Andrea Cleere and Ed Kenny SIPTU | Kevin Bell BL, instructed by IBEC |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042281-001 | 03/02/2021 |
Date of Adjudication Hearing: 11/10/2022
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
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.
At the hearing the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Background:
The Complainant commenced his employment with the Respondent on 6th January 2014 as a Monitoring Operator. The Complainant and his three colleagues referred their complaints to the Director General of the WRC on 3rd February 2021 alleging that they did not get breaks. It was agreed with the parties that the four claims would be heard at a single adjudication hearing. The other complaints are subjects to decisions bearing reference ADJ-00031746, ADJ-00031748, and ADJ-00031750. The complaints were heard together on the 11th October 2022 at a single adjudication hearing. |
Summary of Complainant’s Case:
SIPTU, on behalf of the Complainant submits as follows. The Complainant is employed by the Respondent as a Monitoring Operator. The matter which gives rise to the complaint concerns the contravention of the right to take breaks as provided for under section 12 of the Organisation of Working Time Act 1997. BACKGROUND The Respondent operates as 24/7 365 service contract. The Complainant works two shifts – 9 or 11 hours, typically covering two or three sessions per shift lasting up to 3 hours. As part of the Complainant’s duties, it is necessary for him to attend court to give evidence in the event of a member of the public contesting a fine notice regarding the speed at which they were travelling at a particular date, time and location. During the session it is necessary to monitor the camera non-stop to ensure that they are eligible to give evidence in Court when required. The Complainant is in possession of evidence which must be uploaded to the server once returned to the base at the end of each shift. The Respondent enforces a security policy whereby the Complainant is not to conduct the monitoring sessions with the doors or windows open. The nature of the work places the Complainant in a vulnerable position, CCTV must be monitored continually particularly prior to exiting the vehicle. If there is any suspicious activity or other cause for concern, the Complainant should not leave the vehicle. The Complainant should not move out of easy access to the vehicle and must carry van keys and phone on his person. The Complainant must lock the doors on return to the vehicle. SIPTU relies on the following contained in the Procedure for Working in Hot Conditions:- “GoSafe has reviewed the security policy and must reinforce that Operators are not to conduct monitoring sessions with the doors or windows open. This places Operators in a vulnerable position; CCTV must be monitored continually particularly prior to exiting the vehicle. However the procedure for welfare in the Transit Customs vehicles has been extended to all vehicles. This allows the Operator to exit the vehicle for short periods of time to change position, stand up and move around. The procedure is as follows: The Operator is responsible for assessing the external situation via CCTV in the same manner in which he reviews the external situation prior to leaving the van for set up. If there is any suspicious activity or other cause for concern the Operator should not leave the vehicle. The Operator makes contact with the Tracking Operator prior to exiting the vehicle. This is to inform them that you are exiting the vehicle. The Operator makes contact on return to the van. High visibility clothing must be worn while outside the vehicle. The Operator should not move out of easy access to the vehicle and must carry van keys and phone on his person. The Operator must re-assess the situation while outside the vehicle; he must be diligent and return to the vehicle if the situation changes. Lock doors on return to the vehicle.” The Complainant cannot take breaks during a session, they have no toileting, hand washing or appropriate facilities to consume food during their breaks, access to drinking water is at the depot before they leave for a session and when they return before shift completion. The Respondent operates a system of welfare breaks whereby it is expected that the Complainant will use service or Garda stations to access the toilet. It is expected that these welfare breaks are taken between movement from one session location to another. Employees are not permitted to return to base. SIPTU exhibited a copy of “Toilet Break Policy” memo dated 20th May 2020 and a memo discussing the Respondent’s queries raised with the Health as Safety Authority regarding purchasing of urinal bottles for the Operators that was requested by safety reps. SIPTU submits that it is not possible to take statutory breaks in between assigned monitoring sessions due to their scheduling which necessitates driving from one assigned location to another and the requirement to be there at a designated time. The Complainant is precluded from leaving the vehicle unattended in public places for long periods of time, therefore, the assigned company monitoring vehicle has to be parked in a secure and approved located such as a Garda station, service station with 24 hours CCTV or a motorway road-stop. The Complainant is not allowed to return home with a company monitoring vehicle for a statutory break. The Complainant is not, in general, permitted to return to base or depot with the monitoring vehicle at any point unless they are ill, an issue arises and or unless they can safely and reasonably be in a position, when so doing, to reach the next assigned monitoring session for the full period allotted. The Respondent has placed the onus for taking breaks on the employee, along with the safety and welfare of the vehicle at all times. This means that the Complainant may not park the vehicle in an unsafe or exposed area or place or expose themselves or the equipment assigned to them to any danger. The Telogis application is used for clocking in and out, however the application will not let the Complainant clock out unless he agrees that he has taken his statutory breaks, again putting the onus of taking breaks on the Complainant without actually keeping a record of the time the statutory break was taken. SIPTU exhibited a copy of instructions how to use the application and referred to the section that says: Then select “Break Taken”, If you do not select this option the form will not submit and the option will be highlighted in red. This option must be highlighted in green before the form will be submitted”. SIPTU submits that the application does not show time or duration of breaks. The Complainant cannot clock out on the Telogis application as to do so would erroneously claim that the break was indeed taken, as a consequence of this the Complainant does not receive overtime payment for any additional hours worked beyond the roster finishing time. If, however, the Complainant were to clock out and misrepresent himself, he would receive an overtime rate. SIPTU exhibited a copy of a document entitled “GoSafe – Communication on Lunch Breaks”. The Respondent operates a system whereby the Complainant takes his statutory break while in the monitoring vehicle. However, for the reasons outlined above the practice is that the Complainant has no option but to work through his breaks, the Complainant is recompensed for the entire shift as per the roster.
UNION’S ARGUMENTS The Complainant’s contract of employment details that he is entitled to breaks as provided for under the Organisation of Working Time Act. The Respondent is in breach of section 12 (1). It is SIPTU’s position that it is the responsibility of the Respondent to ensure that rest periods are actually scheduled so that the Complainant’s right to break periods can be effectively observed. It is not appropriate for the Respondent to attempt to put the onus on the Complainant to take their breaks. The Complainant would say that he has not received his statutory break through the course of his employment. The Telogis application is ineffective in ensuring that the statutory rest break is actually complied with. The Complainant does not clock out and therefore informs the Respondent regularly that they are not taking their rest breaks. The Respondent has failed to put any measures in place to ensure that the Complainant can avail of the rest breaks to which they are legally entitled. The Respondent has a legislatively prescribed duty to ensure that the Complainant is afforded their correct break entitlements and that the Respondent is operating within the confines of the Organisation of Working Time Act. In addition, the Respondent should ensure that no pressure should arise which may deter workers from actually taking their rest periods. The Complainant has an entitlement to a statutory rest break which is uninterrupted. SIPTU asserts that the current practice does not afford the Complainant their rights in this regard. It is further submitted that the Complainant has an entitlement to spend his statutory break away from their workstation if they so wish. SIPTU further contends that the Respondent is in breach of its statutory obligations under Section 25 of the Act.
CONCLUSION SIPTU submits that the Complainant has a statutory right to rest breaks as provided for under the Organisation Time Act 1997. It is SIPTU’s position that the Respondent is in breach of its obligations under the legislation in relation to this matter. This issue is ongoing, and SIPTU seeks that the matter is rectified going forward. SIPTU relies on the following case law: WTC/11/19 TIFCO Ltd T/A Crowne Plaza Blanchardstown v Smetana. DWT/19/40 Park Rite Unlimited Company v O’Toole, ADJ-00016952 Retail Bookmaker v Senior Retail Betting Assistant.
Evidence and cross-examination of Mr Niall Walsh, a Monitoring Operator Mr Walsh said that typically after the arrival at the depot it takes 10min to prepare the van and the equipment. There is an amount of time allocated to get to specific locations. On arrival at a location, the Operator assesses the area, gets out of the van, sets up the equipment (approx. 6-10 min.), returns to the van and starts the session. Sessions are between 2-2.5hours. Mr Walsh said that when a vehicle passes, a photograph is taken. He said that an Operator needs to constantly monitor weather conditions to adjust the clarity of photographs. When an Operator is required in court, they are asked to give evidence in relation to the location, registration number of the vehicle, speed it travelled at, etc. Mr Walsh said that he is required to constantly monitor the camera. In relation to the assertion that the Operators have opportunity to learn, etc. during their breaks, Mr Walsh said that his understanding is that they are not allowed to have laptops. When asked by SIPTU if he has the opportunity to take rest breaks, Mr Walsh said that he would be able to but then he wouldn’t be able to monitor the equipment. Mr Walsh said that he does his best to take welfare breaks between the sessions, but it is extremely difficult. Mr Walsh was asked if he would have an opportunity to take 15 min break while in the van, and he replied that he wouldn’t be able to monitor the equipment, so no, he would not be able to take breaks during the time in the van. He said that this is because of “tight scheduling”. Mr Walsh said that because he refused to sign the allegedly fraudulent forms, he does not work beyond his shift as he would not be paid overtime, he needs to cut his last session short. In cross-examination, it was put to Mr Walsh that after the initial set up which depends on weather conditions, he is not required to watch the weather in terms of sun, shade, etc. He confirmed that he is not required to watch the weather conditions. Mr Walsh confirmed that there are on average 21 detections per shift. He further confirmed that detections are carried out by the apparatus, not by the Operator. He confirmed that whether he looks at the camera or not, detections are taking place. It was put to Mr Walsh that, in his evidence, he said that he could take breaks if he was not continuously monitoring equipment. Mr Walsh confirmed that if he didn’t continuously monitor equipment, he would be able to take breaks. Mr Bell asked Mr Walsh if it would satisfy his concerns that he does not have to monitor the equipment and was free to do what he liked in the van during his rest time, as is the current situation. Mr Walsh said that he would have to know a lot more detail about that. Mr Walsh was asked if he was involved in 2018 ballot. He said that he gave a ’No’. It was put to Mr Walsh that he is required to email his manager if there are issues with his breaks, he confirmed that he did not do so but tried to raise it through his union. He confirmed that he claims a lunch allowance. In re-examination, it was said that that normally there are three sessions a day (approx. 6 hours), and some 30 min setting up time per session. |
Summary of Respondent’s Case:
Mr Bell BL, on behalf of the Respondent, submits as follows. The Respondent refutes the Complainant’s allegation and contends that the Complainant has at all times been provided with rest breaks in accordance with the Respondent’s statutory obligations. BACKGROUND The Respondent operates mobile, vehicle-mounted, speed cameras pursuant to a contract with the State. The Respondent’s Monitoring Operators collect their vehicles from one of the Respondent’s depots, drive to an operational location, set up the speed camera, and supervise its operations for the duration of each surveillance session. A surveillance session typically lasts around two hours. The Complainant is employed as a Monitoring Operator. The operational locations can be located up to 100km from the relevant depot. A copy of the Complainant’s contract of employment was exhibited at the adjudication hearing. During the surveillance session the Monitoring Operators are required to maintain the operation and direction of the camera to ensure the quality of the pictures, and to monitor its operation from inside the vehicle. This latter duty is of key importance due to the occasional necessity for Monitoring Operators to present evidence in criminal proceedings arising from speeding offences in the District Court. In order to give the required evidence that a particular vehicle was detected exceeding the speed limit at a particular location at a particular time, the Monitoring Operator must have been on hand in the camera vehicle at the relevant time. If no Monitoring Operator is in the vehicle at the relevant time, and cannot give the requisite evidence of the detection, prosecutions for speeding offences would be impossible and the Respondent would have failed to comply with its contractual obligations to the State. In short, during the two-hour surveillance session, the Monitoring Operators are required to remain in the vehicle while working. The Respondent submits that the Operators are not required to look at the monitor or camera, but they are required to be present in the van. The entitlement to rest periods is set out clearly in the Complainant’s contract. The Respondent requires that the Monitoring Operators take their requisite rest periods, as required by section 12 of the Act, through an electronic time-keeping app which requires all employees to confirm when they have taken their statutory rest periods. The Complainant however has refused to engage with same and uses the app to clock-in only. The Complainant asserts in his complaint form that he is not permitted to leave the vehicle during his breaks. In the first place, this clearly constitutes an admission that the Complainant does in fact take his breaks. Secondly, this allegation is simply incorrect. Monitoring Operators are permitted to leave the vehicle during their rest periods to stretch and take some fresh air. The Respondent even has a specific written policy confirming this. A copy of the Welfare – Stretching Procedure Policy was exhibited at the adjudication hearing. The vans have been designed to maximise the comfort of the Monitoring Operators and to provide an effective workspace drawing on the Respondent’s experience of roadside operations and Operator feedback. The designs illustrate the design work that has gone into the bespoke desk units in the vans with operator comfort being a design driver. Improvements are made regularly based on operator feedback and suggestions. The designs were exhibited at the adjudication hearing. The Respondent’s Monitoring Operators, by mutual consent, take their breaks in their vehicles during periods of relative inactivity. The Respondent provides their Monitoring Operators with heated lunch boxes which can be plugged into the van desks to facilitate their break-time meals at remote locations at the roadside. As stated above, the Respondent also permits the Operators to leave the vehicles during the break, subject to compliance with health and safety requirements and company policy. The consent to this operational model was provided via two ballots of staff, in 2013 and 2018. In both cases, the overwhelming majority of staff consented, with only one ballot dissenting on both occasions. The documentation relating to those ballots, including the pre-ballot letter and voting results was exhibited at the adjudication hearing. In short, the Complainant is provided with his statutory rest periods. His contract makes this clear, his Complaint Form admits that this is the case, and the Respondent has invested in a mobile electronic Teleogis time-keeping app to ensure that staff do so. The Complainant has consistently refused to fully engage with this app or to otherwise adequately record his breaks. It should also be noted that the Complainant is in receipt of a lunch allowance. The Complainant’s further allegation that he is not permitted to leave the vehicle during his breaks is untrue, as proven by the existence of the Respondent’s Welfare – Stretching Procedure Policy. The Complainant’s claim is, it is submitted, not well founded and should be dismissed accordingly. LEGAL ISSUES ARISING The Respondent clearly provides the Complainant with the break periods required by section 12. This is recognised in his contract and admitted implicitly in his Complaint Form. There is no entitlement under the Act that breaks may be taken at a particular location. The Workplace Relations Commission has held, in the case of Duggan v. Go-Ahead Ireland ADJ-00029000, that a stationary bus was a suitable location for a bus driver’s break. By clear analogy, the Respondent submits that the fact that the majority of a Monitoring Operator’s break is taken in the camera vehicle, subject to the additional permission to leave the vehicle to stretch and take fresh air, is similarly in compliance with the Respondent’s obligations under section 12. The Respondent further relies on the High Court judgment of Kearns P. in Stasaitis v Noonan Services Group Ltd [2014] E.L.R. 173. The complainant in Stasaitis was employed to monitor traffic in and out of a warehouse facility. He worked eight-hour shifts and during those shifts he was not permitted to leave the security hut. The employer did not schedule specific breaks over the course of each shift but left it to the complainant to take rest breaks during periods of inactivity. The court definitively held that the employer was in compliance with the requirements of the Act, and the fact that specific breaks were not scheduled and that the employee was not permitted to leave the hut, were not breaches of the Act (albeit in the context of the respondent in that case being exempted from compliance with the Act pursuant to the 1998 Regulations). CONCLUSION The Complainant was provided with the break periods to which he is entitled pursuant to section 12 of the Organisation of Working Time Act, 1997. It is not the case that the Complainant is not permitted to leave his vehicle during his breaks. Even if that were the case, there is no statutory entitlement to take a break in a particular location. The WRC has held, in Duggan v Go Ahead Ireland, that breaks in a stationary vehicle are sufficient to comply with the requirements of section 12.
Mr Bell BL, on behalf of the Respondent, submitted at the adjudication hearing that two ballots regarding the breaks were held nationally, in 2013 and in 2018. Any particular depot could have asked for a different arrangement. Three of out four Complainants are based in Portlaoise, they could have a separate arrangement but they did not propose it. The Respondent acknowledged that the ballot was used to canvas the employees’ views, it was not a formal agreement seeking derogation. Mr Bell BL said that it is incorrect that the Complainant has to look at cameras at all times. He further said that it is incorrect that the Complainant is not permitted to leave the vehicles during his breaks. Mr Bell noted that, due to safety concerns, the vans can only be parked at certain monitored locations. The Respondent submits that the Complainant’s claim is not that he is not given breaks, he objects to taking the breaks in the van. The Respondent submits that the statute deals with the length of the breaks and puts the obligation on the Respondent to ensure that breaks are uninterrupted and taken but does not provide that breaks must be taken at a particular place. At the adjudication hearing, Mr Bell said that, as the Complainant refused to use to the app to clock out, there are Excel spreadsheets in place which the Complainant fills out and which confirm that breaks were taken. The Complainant emails the spreadsheets to the Area Manager. Copies of sample spreadsheets were exhibited at the hearing. Mr Bell submitted that at no stage did the Complainant inform the Manager in writing that he did not receive their breaks.
Evidence of Mr Pat McGuire, General Manager Mr McGuire said that majority of sessions are 2 hours long. The Operators have some administrative tasks, then travel to a destination, park the vehicle and set up the equipment. Once the equipment is set up, technology takes over. At the end of the session, the system is shut down and the Operator drives to another location. There is very limited admin work on return to the depot, approx. 10 min. Mr McGuire said that if giving evidence in court, the Operator informs that “equipment detected”. The key message is that nobody interfered with the equipment, that is why an Operator is in the van. Mr McGuire said that it would be more accurate to say that an Operator “occasionally checks” the equipment. Regarding the ballot, Mr McGuire said that there was no indication that the Complainant was not satisfied. The Respondent took two opportunities to ensure that employees were happy. He confirmed that, if three of four drivers in Portlaoise area wanted a change in the breaks’ arrangements, that would be facilitated. Mr McGuire said that he is personally aware of a person who learned a foreign language in the van. In cross-examination, Mr McGuire said that there is, on average, 120km driven during a 9 hour shift. The Operators have the option to use stations or the depot for welfare breaks. He said that a session can be shut down, if necessary. A van can be parked outside the depot, Garda stations or service stations with CCTV. Mr McGuire said that if the “clicker” goes off indicating a deduction, there is nothing for the Operators to do. In relation to the Complainant not clocking out, Mr McGuire said that he had an understanding that he “just didn’t clock out”. |
Findings and Conclusions:
The Complainant referred her complaint under the Organisation of Working Time Act 1997 to the Director General of the Workplace Relations Commission on 3rd February, 2022. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 4th August 2021 to 3rd February 2022. The Complainant has claimed that he was not afforded his statutory entitlement to rests breaks at work as provided for in Section 12 of the Act. Section 12 provides as follows: 12.— (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) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2). I note that the Act states that “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, and “work” shall be construed accordingly.
Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Section 25(4) provides as follows: - “(4) 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 a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.” The Labour Court in the case of Jakonis Antanas -v- Nolan Transport DWT1117 set out the requirements in relation to the evidential burden of proof that applies in establishing whether or not a contravention of the Act has occurred. It held that: “This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”. The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus, the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden, he or she cannot succeed.” There was no dispute that the Respondent has a clock-in facility in place. The Respondent acknowledged that the Complainant declined to use the clock-in application to record the hours of work. However, the Respondent exhibited samples of records in the format of the Excel timesheets that showed the following: the employee’s name, number, manager, week ending date, hours worked, day (Monday – Sunday), date, start and finish time on each day, details of any court appearance, regular hours, breaks, total hours on each day, lunch allowance, and Sunday premium details. The Respondent acknowledged that the records are not signed. However, the Respondent asserted that the Complainant fills out all the details himself and emails the spreadsheet to his manager on a weekly basis. The Complainant accepted that he fills out the Excel timesheets and sends them to his manager but contends that he was not afforded the rest breaks which were recorded therein. The Complainant argued that he is expected to stay in the vehicle while he is on his breaks and, therefore, he is not allowed to have his break. I note that the Complainant’s contracts stipulates as follows;- BREAK & REST ARRANGEMENTS • In line with the Organisation of Working Time Act 1997 you are entitled to 11 consecutive hours rest in any period of 24 hours. • In line with the Organisation of Working Time Act you are entitled to a break of 15 minutes within 4 ½ hour work period. If you work more than 6 hours you are entitled to a break of 30 minutes, which can include the first 15-minute break. Your break times are unpaid. • If however for any reason there is a safety, health, welfare and / or medical or other reason for requiring a variation to the above breaks, please bring the same to the attention of your Manager in writing and the Company will consider the same. I note that in 2013 two options of breaks arrangements were put to the employees of the Respondent. Option 1 1. Take your break in the vehicle (current situation) - this means the following: a. You will be paid for your break. b. If you are completing a survey session you can pause the system while taking your break. c. If you are completing a monitoring session you can let the system run while you take your break and if you have to return to the system for any reason you should ensure you take the time back within your shift. d. If you are unable to take a break during your shift you must inform your Area Manager by e-mail at the end of this shift stating the reason why you were unable to take your break. This will then be investigated. e. On returning from your shift you must ensure that your vehicle is cleaned out and ready for the next Monitoring Operator. f. Your shift times will remain the same as they are currently 2. Take your break between sessions-this means the following: a. Your breaks will no longer be paid for. b. Your breaks can be taken in a coffee shop, petrol station, hotel, etc., between your sessions. You must ensure that you are always on time for your next session. As you are not permitted to leave the vehicle unattended in public places for long periods of time, the vehicle would have to be parked in a local Garda station while you are on a break. c. You are not permitted to return home with the van at any point d. You are not permitted to return to the depot unless you can make it to your next session in the assigned time. e. Your break time will be assigned to you so as not to conflict with our rostering and hours requirements. f. Please be aware that if you are choosing this option it will add an extra 30 minutes your rostered 8-hour shift thus these shifts would then be 8.5 hours and an hour onto an 11-hour shift thus these shifts would then be 12 hours as we still must complete our required rostered hours. 49 out of 74 drivers voted for option 1, 1 for option 2, 24 did not vote. In October 2018, the two options were put to vote again as “more recently recruited Monitoring Operators have not had an opportunity to consider the 2 options”. A letter detailing the voting process and the arrangements for each of the two proposals issued to employees on 24th October 2018. Option 1. GoSafe Employees opt to take their statutory break whilst based in their Monitoring Vehicle and without leaving their station. What this means is the following: • You will be paid for the time during which you take your statutory break even though you will not actually be working or engaged in work. • If you are completing a monitoring session and the monitoring process is already set up and ongoing, you may allow the system to continue automatically to run, without intervention by you, while you take your break. If, for whatever reason, you are required to intervene or engage in any work such as engaging with the camera, monitoring equipment or system for any reason whatsoever, you must record the time that was taken from your break and ensure, in so far as possible, that you take the time back within your shift. You should also inform your Area Manager in writing of the break in the statutory break, the reason therefore and that you have taken the lost time back within the period of the assigned shift. • If you are unable to take a break during your shift you must record in writing that this occurred and inform your Area Manager by e-mail at the end of this shift outlining the reason why you were unable to take your break. This will then be reviewed and, in so far as possible, steps will be taken to ensure that this does not reoccur. • All commencement times, finishing times and confirmation of break taken must be recorded using the Telogis system or by a matter otherwise agreed. • On returning from your shift you must ensure that your vehicle is cleaned out and ready for the next Monitoring Operator. • Your shift times will remain the same as they are currently and the net effect of this is that your working day will be shorter by the period of the statutory breaks but you will be paid in full for the same. • Health and safety and the safety of yourself, your colleagues and the company equipment and vehicles must remain paramount at all times. Option 2. GoSafe Employee’s opt to take their statutory break between Monitoring Sessions. • Under this option you must still take all statutory breaks but the time allocated to these breaks will no longer be paid for by the Company. They will have to be taken in your own time. The Logistics Team will roster the break immediately post your second session completion. • You may take your statutory breaks in a coffee shop, petrol station, hotel, etc., between your assigned monitoring sessions on location. In so doing however you must always ensure that you are always at your next assigned location on time for the assigned session. • In taking these statutory breaks, you are not permitted, under any circumstances, to leave the vehicle unattended in public places for long periods of time and so your assigned company Monitoring Vehicle will have to be parked in a secure and approved location such at a local Garda station, Service Station with 24 Hour CCTV or Motorway Roadstop while you are on a statutory break. You are not allowed to return to your home with a company monitoring or survey vehicle for a statutory break. • You are not, in general, permitted to return to your assigned base or depot with the Monitoring Vehicle at any point unless you are ill, an issue arises and or unless you can safely and reasonably be in a position, when so doing, to reach your next assigned position in time for your next assigned monitoring session for the full period allotted. • Every effort will be made to ensure that your statutory break or breaks will coincide with your assigned monitoring visits so that you can still take your statutory breaks so that they will not conflict with the Company rostering and hours requirements. • If this option is chosen, it will inevitably add an extra 30 minutes onto your rostered 9-hour shift. These standard shifts would then be 9.5 hours in duration. Thus 11 Hour Shift would become 11.5 hours in duration to allow for the break. Only the nine / eleven hours would be paid for by the Company. Note this will necessitate a roster amendment to facilitate this option. • As you aware, the Company invoices our client for hours actually expended in monitoring on assigned locations at agreed times. Therefore, in operating this process of taking breaks without being paid for the same, at all times you will still be required to complete all assigned rostered hours on assignment in full. • At all times it is, and will remain, your legal and contractual obligation to take all statutory breaks in a safe and prudent manner so as to ensure, so far as possible, the safety and welfare of both you and your vehicle at all times. This means that you may not park your vehicle in an unsafe or exposed area or place or expose yourself to any danger whilst you are taking your statutory break and that you must at all times have proper regard for your own safety and the equipment assigned to you. In so doing you must also have regard to patterns and the danger, whilst taking your statutory breaks, of being seen to park at the same locations at the same times on an ongoing basis. There were 86 ballots issued, 55 ballots were returned, 54 voted for option 1 – taking break within the vehicle, 1 for option 2 – taking break between monitoring sessions. While the result of the ballot in itself is not in any way an indication of the Respondent’s compliance with the Act, it is helpful in providing a detailed description of the arrangements in place. I note in particular that the detailed description of the arrangements for breaks states: · If you are completing a monitoring session and the monitoring process is already set up and ongoing, you may allow the system to continue automatically to run, without intervention by you, while you take your break. If, for whatever reason, you are required to intervene or engage in any work such as engaging with the camera, monitoring equipment or system for any reason whatsoever, you must record the time that was taken from your break and ensure, in so far as possible, that you take the time back within your shift. You should also inform your Area Manager in writing of the break in the statutory break, the reason therefore and that you have taken the lost time back within the period of the assigned shift. · If you are unable to take a break during your shift you must record in writing that this occurred and inform your Area Manager by e-mail at the end of this shift outlining the reason why you were unable to take your break. This will then be reviewed and, in so far as possible, steps will be taken to ensure that this does not reoccur.
The Complainant confirmed at the hearing that he did not notify his manager in writing of any difficulties with taking his breaks, as per the requirement above. I note that, following his evidence that he needs to “constantly monitor weather conditions to adjust the clarity of photographs”, and that he would be able to take breaks if he was not continuously monitoring equipment, the Complainant confirmed that in cross-examination that he is not, in fact, required to monitor the weather conditions. He further confirmed that detections are carried out by the apparatus, not by the Operator and whether he looks at the camera or not, detections are taking place. With regard to the potential interruptions as outlined above, in Martin v Southern Health and Social Care Trust [2010] I.R.L.R. 1048, the claimant nurse contended that, because the rest breaks that were afforded to her could not be guaranteed to be uninterrupted, those periods should be regarded as “working time”. The Northern Ireland Court of Appeal, however, held that the provision of a rest break, which might be interrupted in “exceptional circumstances”, was “conceptually quite distinct” from on-call duty. I note the Respondent’s reliance on Duggan v. Go-Ahead Ireland ADJ-00029000. This decision was appealed and overturned by the Labour Court. The Court in Go Ahead Transport Services (Dublin) Limited v Sandra Duggan DWT2114 did not address the question of a break in a stationary vehicle. However, the Court held that “Section 12 of the Act makes provision only in relation to the minimum duration of breaks during the working day. The Complainant had a rest break during her working day on 23 May 2020 which exceeded in duration the minimum break prescribed by section 12 of the Act. It follows, therefore, that she was afforded in full her entitlements under section 12.”
While there was no dispute that the Complainant is required to stay in the vehicle or in close vicinity to the vehicle, it appears that the Complainant is not required to carry out or perform his duties during the period of his breaks notwithstanding the fact that he is still present in the van.
Having regard to the above, I find the Respondent’s evidence in relation to this matter to be more compelling and I do not accept the Complainant’s contention that he was not afforded his statutory rest breaks during her period of employment. In the circumstances, I find, on the balance of probabilities, that the Respondent has satisfied the legal burden of proving that the provisions of Section 12 of the Act were not contravened in the manner alleged by the Complainant. Accordingly, I find that the complaint is not well founded. |
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.
I declare this complaint to be not well founded. |
Dated: 01st March 2023
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Breaks – Organisation of Working Time Act |