Complainant

Respondent

Parties

Josh  Healy

Sharp Group Fire & Security Services, (Sharp Group Ltd.)

Representatives

  Self-represented

 Self-represented/Internal

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-00059942-001

12/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059942-002

12/11/2023

The Complainant worked for the Respondent company from 2/2/22 to 3/12/23, as a security guard.

He submitted two complaints to the WRC on 12/11/23, under the Organisation of Working Time Act 1997, the first pertained to rest breaks and the second to annual leave.

CA-00059942-001 – Daily rest breaks:

As per the Complaint form, the Complainant submitted that: ‘On a regular basis (every fortnight) I was required to work 15 hour shifts 07:00am to 22:00pm inclusive. Saturday and Sunday. This did not give me my minimum 11 hour rest break. Once a month I also had a Monday morning shift 07:00am 18:00pm.’

The Complainant submitted that the scheduled roster for the entirety of his employment included 15 hours shifts every second weekend, where he would finish at 10 pm at night and was due in at 7 am the following morning, meaning that he received a nine (9) hour rest break when she should have received a minimum rest break of 11 hours, under the applicable legislation.

CA-00059942-002: Application to take annual leave on a specific date:

As per the Complaint form, the Complainant submitted that: ‘My annual leave was denied even though custom and practice had showed that it should have been approved. They gave reasons for denying even though these reasons were not upheld shortly after with me and other colleagues as they took annual leave. At all times when I tried communicating their since [sic] of the rules was clearly vague. I will send on email communication relating to this.’

The Complainant lodged two complaints under the Organisation of Working Time Act 1997 with the WRC.

The first complaint (CA-00059942-001) pertains to rest breaks. The Complainant submits that the manner in which he was rostered to work meant that every second weekend he did a fifteen (15) hour shift, finishing at 10 pm at night and was due back in work at 7 am the following morning. He contends that he received a nine (9) hour break overnight when he should have received eleven (11); and further contended, that sometimes he was also rostered on Monday morning for a 7 am start.

The second complaint (CA-00059942-002) pertains to the refusal to approve an application for the granting of a day of annual leave on a specific date. The Complainant contends that the stated policy (from the Dublin office) was only a formality, and not the ‘custom and practice’ on the ground in Cork. He states that the two week’ notice requirement was not enforced either before or after this particular application for one day of annual leave. He submits that the application was incorrectly denied. To that end, he cited the Supreme Court case of Noreside Construction Ltd. V. Irish Asphalt Ltd. (judgment of Ms. Justice Dunne delivered 2nd December 2014), which quoted a section of McDermott on Contract Law at para 7.07 which set out a number of requirements that must be fulfilled before a custom would be implied into a contract, namely:

‘(1) The custom must have acquired such notoriety that the parties must be taken to have known of it and intended it should form part of the contract.

(2) The custom must be certain.

(3) The custom must be reasonable, and the more unreasonable it is the harder it will be to prove that it exists.

(4) Until the Court takes judicial notice of a custom it must be proved by clear and convincing evidence.

(5)The custom must not be inconsistent with the express contract.’

He also cited ADJ-00030932, in which Albion Automotive Ltd. V. Walker ([2002] EWCA Civ 946, the Court of Appeal (England and Wales Court of Appeal) was relied upon.

This listed the relevant factors as follows:

(a)    Whether the policy was drawn to the attention of the employees;

(b)    Whether it was followed without exception for a substantial period;

(c)     The number of occasions on which it was followed;

(d)    Whether payments were made automatically;

(e)    Whether the nature of communication of the policy supported the inference that the employer’s intended to be contractually bound;

(f)      Whether the policy was adopted by agreement;

(g)    Whether employees had a reasonable expectation that the enhanced payment would be made;

(h)    Whether terms were incorporated in a written agreement;

(i)      Whether the terms were consistently applied.

At the hearing, the Complainant represented himself, and gave evidence on his own behalf.

In respect of daily rest breaks, the Complainant submitted that there was a problem with the scheduled roster for the entirety of his employment; that every second weekend, he was scheduled for 15 hours shifts, that his shift finished at 10 pm at night, and he was then due in at 7 am, i.e. that he had a nine (9) hour break but should legally have received an eleven (11) hour break. He emphasised that he was not getting it [the appropriate break] on the Sunday morning and not getting it on the Monday morning. He said that he should have received an eleven (11) hour break under the Organisation of Working Time Act (OWTA). He said that only two of the twelve employees on the roster had to endure a roster like that. He said that he raised it with his supervisor on countless occasions (summertime 2023, August 2023). He said that he told him how tired he was, and that he was told ‘it’s a cushy gig’ and ‘pretty much just show up.’ He described it as ‘pretty much a put up or shut up situation.’

The Complainant submitted supporting documentation in support of his claim – a roster made by his supervisor which was put into a Whatsapp group created by the supervisor. The Complainant highlighted that sometimes he was scheduled Friday through Friday (8 days in a row). He highlighted that s. 11 of the Organisation of Working Time Act and s. 8 of the Safety, Health & Welfare at Work Act 2005 were not followed.

In respect of his second complaint, the Complainant submits that annual leave submitted was incorrectly refused. He explained that there was a holiday planner pertaining to Cork. He said that it was online, that everyone had access to it, and that using it to book annual leave was ‘custom and practice’ which meant his annual leave day was incorrectly refused. He said that the local practice, in Cork, predated the Respondent employer taking over the site. He explained that every time he submitted his holidays, it was automatically approved. If someone else had booked it, it was unavailable within the holiday planner. He said that the practice remained, subsequent to the Respondent employer taking over the site.

In this instance, he said that on 13th September 2023, he submitted holidays for 18th September 2023. It was refused because someone else had taken leave, but his supervisor (in Cork) ‘okayed it’.  He said, he then submitted it to Dublin to make sure but that Dublin incorrectly cancelled his holiday (in light to a custom and practice that was in place in Cork).

He submitted that under s. 20 of the Organisation of Working Time Act 1997, that it is up to the employer when annual leave is granted, but he submitted that s. 20(1)(a) should take into consideration, which sets out that:-

20.-(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject-

(a) to the employer taking into account –

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee

He explained that he had become an uncle earlier that year.

The Complainant outlined the history of the local practice – he said that the planner was done to ensure the site was working (i.e. that they had cover), and explained his dissatisfaction with the appeal process. He explained his personal circumstances as to why he wanted to take annual leave, at that point. He submitted that the decision-making in the appeal was completely contradictory, that he was told that he was required to give two weeks’ notice, but he said that he had not done  that previously. He further submitted that a month later, he applied for annual leave again, and gave less than two weeks’ notice on that occasion, and that was approved with no problem. He submitted that the Respondent company did not follow their own ‘rules’ before or after this incident.

By way of closing submissions, the Complainant sought to rely upon a Supreme Court case on ‘custom and practice’ (Noreside Construction Ltd. V. Irish Asphalt Ltd.) which also cited the legal text McDermott on Contract Law.

He contended that the holiday planner and text messages from the site supervisor in Cork fit the requirements with respect to ‘custom and practice’ as set out in the Supreme Court case. He said that the planner had rules as to how it was to be used (‘certain’), that it met the requirement of having to be ‘reasonable’ – that it was very reasonable, there were two set ups, and it follows those two set ups and it follows the rules, that it ‘does the hard part for the company’. He contended that he had proved it with ‘clear evidence’. He cited the test in the O’Reilly V. Irish Press case. He further relied upon a WRC case (ADJ-00030932) in which Albion Automotive Ltd. V. Walker was quoted. He contended that there were lots of examples of employees submitted a request in less than a two week period and it being approved. He said that the planner applied to twelve (12) people, and estimated that it was followed about forty (40) times per year. He said that the Respondent company only had the contract for 1.5 years; and estimated that during that time, the Cork planner would have been utilised approximately sixty (60) times, in his view. He submitted that the site supervisor is the main representative of Respondent company in Cork, that he told the employees in Cork to use the holiday planner and they did. The Complainant submitted that what had occurred was a ‘unilateral contract’, that he (and the other Cork employees) had carried out that contract, by using it. He said that the terms were consistently applied, time and time again.

The Respondent company denies the Complainant’s claims.

On cross-examination, by Mr. Boylan (on behalf of the Respondent)

The Complainant was asked whether he had escalated his complaint to management. He said that he had not and explained that the reason was because around September 2022/October 2022, he had an issue with the night shift – his roster was changed. He said that he rang Mr. Boylan and he was quite helpful down the phone but he said that, afterwards, the site supervisor in Cork had shouted at him and asked: “Why did you go to Dublin?”

He was asked whether he advised the site supervisor in writing that he was tired. The Complainant said that it was ‘informal.’ It was put to him that he had not escalated it. He said that there was ‘nothing in writing.’

He was asked about the ‘custom and practice’ that he alleged was in place in Cork with respect to annual leave. He clarified that it was only one person at a time and approved by the site supervisor. It was not given to him in writing that his holidays were approved.

There was a dispute between the parties as to the finishing time of the shift. The Complainant said that the lock up shift on a particular (named site) ran until 10pm; whereas the Respondent contended that the Complainant worked until 8pm and was paid until 8 pm. The Respondent pointed to files recording the [Named Client Company] lock up key at 8pm. The Complainant submitted that the TimeGate log, which was used for clocking on and clocking off, was the relevant log, submitted he had been paid until 10pm and queried the company’s suggestion that he had been paid two hours beyond what he had worked saying that ‘he didn’t see any company giving out free money.’ He was asked whether he was free to go home at 8pm. He said: ‘No. Nor did I.’ He explained that he was handing back the key on the main site, typically past 10 pm, and that there was a particular procedure for doing so.

In respect of the application for annual leave, the Respondent contended that it first came to know of it, on September 13th, booked on Cork site. It submitted that HR is office based and works Monday to Friday; and that it therefore had two working days’ notice of the request. It submitted that the request was not submitted through the system.

It submitted that annual leave does not get automatically approved, that that is not possible due to the business the Respondent is in. It contended that the correct procedure is through the online company-wide system, not just to get confirmation back, but that it also goes to the rostering department which approve the holidays. The Complainant disputed the Respondent’s position with respect to annual leave, saying that ‘it’s fully functional Cork-side’, that ‘emails about the holiday request were ‘purely symbolic.’

The Adjudication Officer afforded the Respondent company an opportunity to submit both the Complainant’s contract of employment and the relevant portion of the TimeGate log, within a prescribed timeframe, subsequent to the hearing.

The Law

Under the Organisation of Working Time Act 1997:-

Daily rest period

s. 11 sets out 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.

For completeness, s. 13(5) sets out that:-

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

I have had regard to the WRC decision ADJ-00049112, which sets out the relevant law on this point, inter alia:-

The right to rest breaks is derived from an EU Directive, Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (the “Working Time Directive”).

In the Labour Court case of Sandra Cooneys Home Care Ltd v. Deirdre Morgan DWT1914, the Court noted that the appellant did not receive rest periods in accordance with the 1997 Act and noted that “… employers are obligated to ensure that the prescribed periods of rest are actually taken”.

In HSE National Ambulance Service v. O'Connor DWT 84/2014, the Labour Court said that the entitlement to a rest period was “a fundamental right in EU law and any departure from it must be justified in the context of the individual breach”.

As per the Court of Justice of the European Union (“CJEU”) in Case C-477/21 IH v. MAV-START ECLI:EU:C:2023:140 at paras 37-39 the right to daily rest periods and weekly rest periods are autonomous rights which pursue different objectives and “[c]onsequently, workers must be guaranteed the actual enjoyment of each of those rights.”

In respect of the complaint pertaining to rest breaks, I prefer the evidence of the Complainant over the submissions made on behalf of the Respondent company. I note that, in line with the law set out above, that constitutes a fundamental breach, which has to be marked with an effective deterrent.

With regard to the complaint pertaining to annual leave, I accept and understand the Complainant’s frustration at the Respondent company working at cross-purposes with itself with respect to its system for employees accessing annual leave. However, I find that the Complainant has not established that a material change in his employment rights occurred (pertaining to the accessing of annual leave) by virtue of the manner of local implementation which was occurring on site in Cork, for ease at local level.

CA-00059942-001: I prefer the evidence of the Complainant over the submissions made on behalf of the Respondent. I find that this complaint is well founded. I note that the right to rest breaks is derived from the Working Time Directive and that the Von Colson principles apply (i.e. the necessity for a deterrent effect). I am required to award compensation which is just and equitable having regard to all the circumstances, but not exceeding two years’ remuneration. I direct the Respondent to pay the Complainant compensation in the amount of €2,000, within 42 days of the date of this decision.

CA-00059942-002: I find that this complaint is not well founded. While I accept the Complainant’s evidence that there was a disconnect between what was happening on site in Cork, and the company policy/position, I am not persuaded by the Complainant’s arguments in relation to the establishment of a ‘unilateral contract’ or that the use of the holiday planner, at local level in Cork, had the effect of altering the Complainant’s employment rights with respect to accessing annual leave.

Organisation of Working Time Act 1997; Rest Breaks; Annual Leave; Custom & Practice;