Complainant

Respondent

Anonymised Parties

Care Worker

Care Provider

Representatives

Sean Costello

Sean Costello Solicitors/Lars Asmussen BL

Thomas K Madden & Co Solicitors

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-00056846-002

25/05/2023

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

CA-00056847-002

25/05/2023

The Complainant’s employment ended in the context of a disagreement about safety protocols. The

Employers provide day care services to children with special educational needs and respite services for their parents. The service is child focused and by the nature of the work, exact break times cannot be anticipated. However, break times are provided and a staff member is specially rostered so that staff members can have their breaks.

The Complainant alleges that the Respondent failed to provide him with appropriate breaks and rest periods.

There are two complaints and the details for both overlap so for the purpose of this decision I make one determination that applies to both complaints and that I determine to be duplicate. The issues before me relate to receiving appropriate breaks, whether exemptions apply in this workplace having regard to the nature of the work , the adequacy of compensatory breaks if applicable and break records.

This complaint was separated from another decision,-00046085 that dealt with a claim for alleged penalisation as facts not heard at the original hearing and unique to the claim for breaks,  called for a new hearing on the new facts not previously presented.

The Complainant maintains that no derogations apply in this case.

The Complainant alleged that derogations as prescribed in SI 2/1998 do not apply in this case.

The derogations it is argued relate to shift work and that is spread out over the day.

The Respondent’s defence is misconceived to compare the services at the centre to those that are provided at residential centres or hospitals. There are no overnight facilities and no requirement for emergency medical care. These comparators in contrast to this day centre provide constant medical care and often emergency medical care to their patients and residents.

It would be a significant departure from Labour Court decisions to recognise that this activity should be comparable to such institutions.

If the Adjudicator were to determine that the Respondent somehow did come under the Regulations it still failed to provide him with compensatory breaks and has no records whatsoever to detail any breaks that the Complainant took.

The Complainant maintains that he was not afforded appropriate breaks.

The working day for the Complainant commenced at 10:00 AM until 04:00 PM, a six-hour shift. The nature of the work is quite unique, and similar in some respects, to persons who work in caring sectors, such as nurses, doctors, paediatric consultants, psychiatric nurses and people working in the mental health sector. Young people with a raft of problems attend the facility and they are frequently disposed towards unpredictable behaviours, mood swings and physical conduct which people in the sector are aware of when entering this type of work environment.

The respondent fully acknowledges that employees are entitled to “breaks” and abides by the obligation to ensure that staff Health and Safety is recognised. The provisions of Section 6(3)(b) 1997 Act are adhered to, insofar as modern facilities are available during break time. However, the behaviour of many of these young adults is so volatile and unpredictable that it would be incongruous and irrational to delegate rigid break times, due to the nature of the work, the risk associated with same, the needs of the service users, and the level of responsibility towards children’s parents and/or carers.

The Respondent submits that there are a range of exceptions (Section 4 1997 Act) in the primary legislation and further exceptions set out in the relevant statutory instrument SI 21/1998 entitled Organisation of Working Time (general exemptions) regulations 1998. The statute specifically enumerates several exceptions. It does not preclude “other circumstances “that may have been unforeseen or likely to manifest in the future, thus leaving scope for discretion in accordance with the circumstances of each individual case, that apply in this case.

It is very clear from the facts in the related case already decided, that caring for special educational needs clients can give rise to volatile and unpredictable situations, that in turn make the rostering of set break times impractical and would compromise the safety of children attending at the day centre. From the facts as detailed in the related case at length this means that this care environment is one of high dependency.

The Complainant states that while this is the case, the centre operates 1:1 care and a floater provides the break cover.

That maybe so; however, as so clearly seen by the facts related to this complaint, such cover may normally suffice, but not in all situations, when more than one person is required to attend to a volatile and unpredictable situation. This flexibility is needed for the care of the child, but also for the safety of the day centre staff when confronted with a difficult care challenge.

The Regulations made under S.I. No. 21/1998 is not an exhaustive list of workplaces and workers covered by the exemptions. It cannot be interpreted literally but must be applied having regard to what the intent of the legislator was, which is to recognise work environments, where it is not possible to have fixed break rosters. However, there must be compensatory breaks put in place so that breaks are taken.

The schedule  in the Regulations provides for the following:

3. An activity falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be, and, in particular, any of the following activites—

(i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment,

The day centre is a similar establishment for the purpose of the regulation, and this means the exemption applies to this day care centre. In fact healthcare is moving more and more to less institutional fulltime residential care to day care with the necessary resources in place to support this community based approach.

The Act also provides for compensatory rest periods where the exemptions apply:

Compensatory rest periods.

6.—(1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4 that exempt any activity from the application of section 11, 12 or 13 or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12 or 13.

In Stasaitis v Noonan Service Group Limited [2014] IEHC 199, the case detailed the following relevant considerations when looking at adequate compensation so that breaks do take place:

It was further submitted that the facts of the instant case were identical with those considered by the Employment Appeals Tribunal and the Court of Appeal in the case of Hughes v. Corp. of Commissionaires Management Ltd. [2011] I.R.L.R. 100 (Eat), [2011] I.R.L.R. (C.A.). In that case the Court of Appeal had stated:-

*We would accept that if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes. If the break does not display those characteristics then we do not think it would meet the criteria of equivalence and compensation

 Under s.6 (2) (b) the employer has an obligation to make *such arrangements as respects the employee*s conditions of employment as will compensate the employee*. These arrangements must compensate the employee for the derogation under ss.11, 12 or 13. As per s.6 (3) the compensatory arrangements cannot be monetary or of any material benefit. However the requirement under s.6 (2) may be met where the employee is provided with better physical conditions or amenities or services whilst at work as per s.6 (3) (b). In this instance the employee was provided with kitchen facilities and an area within which to take breaks during periods of inactivity. The employee in this case was permitted to take such breaks as he wanted during periods of inactivity and was provided with amenities and facilities to do so. Therefore the requirement to provide compensatory rest periods in relation to the derogation from the statutory rest periods and or breaks must be deemed to have been complied with.

Further, the decision in the Court of Appeal in the case of Hughes v. Corp. of Commissionaires Management Ltd. [2011] I.R.L.R. 100 (Eat), [2011] I.R.L.R. (C.A.) fortifies the view of this Court in finding that the criteria of equivalence and compensation for breaks were met by the arrangements put in place by the employer. The view of the Court of Appeal in the Hughes case was that, since the rest breaks in fact begin again following any interruption, this type of break may be regarded as even more beneficial than the statutorily defined breaks.

I would dismiss the appeal.

On the evidence provided at both hearings, and on the balance of probabilities I find that there was adequate compensation put in place for breaks, through the floater system and the facilities that are available on site are suitable for having a break as prescribed under the Act. However, the record of that compensatory system is not available.

Section 25 of the Act provides that records are kept:

25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this F27[Act and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

It would appear there is a system in place; however, records to detail that the compenastory breaks were  taken were not produced. On balance I conclude that this is a technical breach.

The facts show that the Respondent does provide breaks and compensates when breaks can’t be taken at expected times having regard to the nature of the care required for those attending at the centre.

The Complaint is well founded; however, I have arrived at this conclusion solely on the fact that the rebuttal of the claim requires records to be produced, which in this case were not.

The claim before me relates to receiving all appropriate breaks. The evidence clearly shows that the Complainant did receive breaks. The rebuttal of that claim falls to the Employer based on the records kept. In this case that rebuttal has not been met. As I have found that the employer substantially meets their obligations under the Act, I find that this is a technical breach only.

The two complaints detailed overlap and relate to the adequacy of break cover and the compensatory procedures put in place to allow for break times when they are not taken as anticipated or scheduled. The Complainant maintained that adequate break cover was not in place.

I award compensation of €500 an amount that reflects the nature of work at this day centre and the supports in place so that staff do take breaks.

The Complaint is well founded; however, I have arrived at this conclusion solely on the fact that the rebuttal of the claim requires records to be produced, which in this case were not.

However, the claim before me relates to receiving all appropriate breaks. The rebuttal of that claim falls to the Employer based on the records kept. In this case that rebuttal has not been met. As I have found that the employer substantially meets their obligations under the Act, I find that this is a technical breach only.

The two complaints detailed overlap and relate to the adequacy of break cover and the compensatory procedures put in place to allow for break times when they are not taken as anticipated or scheduled. The Complainant maintained that adequate break cover was not in place.

I award compensation of €500 an amount that reflects the fact that this is a technical breach. This is so as the nature of work at this day centre does give rise to an exemption under the Act and Regulations. There are adequate   compensatory supports in place so that staff do take their breaks as soon as it is safe and practical having regard to the needs of children in their care.

Breaks