Complainant

Respondent

Parties

Rudolf  Csikos

Keelings Logistics Solutions

Representatives

Self

Emily Maverley IBEC

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-00069578-001

14/11/2019

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

CA-00069578-002

17/12/2019

Special Category Worker Night Shift CA-00069578-001

In his complaint form (CA-00069578-001 )the Complainant states that:

‘I do very hard physical work / chill / and not implemented by my employer Organisation working time act 1997. 16. (2). (3)’.  

This section of the Act is central to understanding the claims now being brought to the Commission and is copied as a key reference throughout the decision:

Nightly working hours.

16.—(1) In this section—

“night time” means the period between midnight and 7 a.m. on the following day

“night work” means work carried out during night time;

“night worker” means an employee—

(a) who normally works at least 3 hours of his or her daily working time during night time,

and

(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year.

(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

(3) In subsection (2) “special category night worker” means a night worker as respects whom an assessment carried out by his or her employer, pursuant to a requirement of regulations under section 28 (1) of the Safety, Health and Welfare at Work Act, 1989, in relation to the risks attaching to the work that the night worker is employed to do indicates that that work involves special hazards or a heavy physical or mental strain.

The Claimant asserted that he was a special category worker and that his hours of work should not exceed 8 hours.

The Respondent denies that the Complainant is a special category worker. The Respondent does accept that he was a night worker, given that more than 3 hours of each shift fell between 12pm and 7am and over 50% of his annual working time was performed during that period.

While each party’s position was detailed and considered on the 5th of June 2025 allowing for the differences between the parties, the Adjudicator directed the Respondent to produce attendance records to determine the hours worked by the Complainant. He also directed that the Respondent produce evidence to show that the Complainant’s role had been independently assessed and to confirm that the Complainant was not a special category worker. Those records and occupational report were received on the 1st of July 2025 and copied to the Complainant.

On the 25th of July 2025 the hearing was reconvened and continued on the 28th of July 2026. As the independent medical assessment report was contested by the Complainant this required direct evidence from an Occupational Health Practitioner.

A hybrid hearing was arranged on the 30th of October 2025 to facilitate the attendance by Doctor Deirdre Gleeson, an Occupational Health Practitioner who signed off on the special category night worker report.

Sunday Premium CA-00069578-002:

The Respondent makes a preliminary objection to the complaint being heard in the first instance, as it refers to a body of workers, as a collective agreement now in place has reached full and final agreement on Sunday Premium, agreeing a consolidated rate that is in place and other payments as detailed in the amended agreement.

That provision not to hear a complaint when it affects a body of workers relates to an individual trade dispute when referred to an Adjudicator made under section 13 of the 1969 Industrial Relations Act. It does not apply to an employment rights referral. The preliminary objection is not upheld.

The Complainant states that he was not paid for an allowance for Sunday work and no reference to a Sunday Premium is in his contract:

‘From 26.05.2013 obligatory working on sundays and not given compensation for working on a Sunday. My contract of employment does not include any compensation for Sunday work.’

Special Category Night Worker:

The employee alleges that he was unlawfully required to work 10-hour night shifts despite performing physically demanding work in cold conditions that qualified him as a special category night worker under section 16 of the Organisation of Working Time Act.

He alleges that the employer’s night shift risk assessment conducted in June 2019 was flawed.

His complaint is that the assessment understated the physical nature of the work, as it wrongly suggested that the heavier work occurred only at certain times (for example, around Christmas).

Sunday Premium:

 He also states from the commencement of Sunday working, he was never paid a Sunday premium under section 14, because his original contract only covered Monday–Friday work and was never amended to state that Sunday compensation was included in his salary.

Special Category Night Worker:

The Independent Assessment was completed during the hours of 11pm to 2am, which was chosen as the busiest time in the warehouse. The medical assessor reviewed all risks relating to night workers and the Complainant was invited to contribute to the assessment. The assessor noted that the Complainant described his work as ‘not heavy work but that it sometimes involves pushing, pulling and turning of dollys and trolleys with varying weights”. The assessment confirmed that the Complainant was not a special category night worker, as no special hazards/heavy physical or mental strain were associated with his work.

As the Complainant is not a special category worker his hours are correctly calculated in accordance with section 16(2) (b) of the Act and averaged over a 2-month reference period. With reference to the cognisable period his average hours are as follows:

·         12th May to 6th July 2019 34.63 hours

·         7th July to 31st August 2019 33.43 hours

·         1st September to 26th October 2019 35.41 hours

Sunday Premium:

The Complainant has benefited from collective agreements that has enhanced his terms and conditions of employment. That agreement governs Sunday work and refers to the fact that no claims can be made for Sunday work as the agreement fully takes account of the need for Sunday work.

Special Category Worker Night Shift CA-00069578-001

A tribunal does not complete its own assessment and is bound to decide a case based on the evidence presented at the hearing.

The Respondent called Doctor Gleeson who signed off on the original report which concluded that the Complainant was not a special category worker and therefore was not limited to working 8-hour shifts. She stood over the report and methodology used to arrive at that decision. That report was opened to this tribunal. On the evidence of this witness, I find that the Complainant was not a special category worker.

The worker relied on his own experience and what he determined to be heavy and difficult work.

The original report concluded that:

“the tasks being performed by the loaders do not meet the classification of special category night work, the employees conduct varied level of physical strain throughout the night, they ae performance managed on loading. They mostly don’t get minimum time on the pick to be in scope for pick performance management.”

It is a detailed report that assessed the Complainant’s time in the chill room and the loads he lifted. It also assessed other workers workload and the task difficulty on the same shift. The Complainant queried why he had to pick (this is a difficult and heavy task) and it was required due to the increased order demands at Christmas. The Complainant stated he was required to pick other than at Christmas. This activity is physically demanding depending on the time spent on the task.

The Complainant continues to refuse to accept the independent assessment because he believes that he was performing physically demanding work in cold conditions that qualified him as a special category night worker under section 16 of the Organisation of Working Time Act.

As I have determined based on the oral evidence of Doctor Gleeson and the original independent report that the Complainant is not a special category night worker, I now turn to the claim that he was working excessive hours.

I directed the company to provide a detailed breakdown of the hours worked during the relevant period and for payslips to be provided to show that the record reflected the paid hours. That assessment shows that the Complainant has not worked excessive hours.

As the Complainant is not a special category worker his hours are correctly calculated in accordance with section 16(2) (b) of the Act and averaged over a 2-month reference period. With reference to the cognisable period his average hours are as follows:

·         12th May to 6th July 2019 34.63 hours

·         7th July to 31st August 2019 33.43 hours

·         1st September to 26th October 2019 35.41 hours

As the Complainant is not a special category night worker and he has not worked on average more than 8 hours in the relevant period as specified at section 16:

(2) Without prejudice to section 15, an employer shall not permit a night worker, in each period of 24 hours, to work—

(a) in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b) in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(i) 2 months, or

(ii) such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved of by the Labour Court under section 24.

I find that the complaint is not well founded.

Sunday Premium:

The Complainant maintains that he is not bound by the collective agreement that was signed on the 23rd of October 2023. That agreement does include a payment for Sunday work.

An important case concerning the weight to give to a collective agreement and the intent to enter into a legal agreement is Reid Martin and James Turner (Appellants) v Health Service Executive (Respondent) [2016] 27 E.L.R. 194.

In summary the Supreme Court determined:

Held, by the Supreme Court (Charleton J.; Hardiman, MacMenamin, Dunne and O'Malley JJ. concurring), in dismissing the appeal:

·         (1) Whether a collective agreement is binding on individual contracts of employment is heavily factually dependent.

·         (2) The appellants by working the detailed procedures and conditions of the 1999 contract without protest, gives rise to the inference that the full terms of the 1994-99 collective contract were mutually accepted. Goulding Chemicals Ltd v Bolger [1977 I.R. 211 distinguished.

·         (3) The basic rule for the construction of a contract is that it is the court's task to ascertain the intention of the parties and the intention must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. UPM Kymmene Corporation v BWG Limited [1999] IEHC 178; unreported, High Court, Laffoy J., 11 June 1999 considered.

·         (4) Contracts must be given business efficacy, since negotiations take place for a purpose.

·         (5) The objective meaning of words within a contract are informed by an objective consideration of the background knowledge of the parties to whom the contract is addressed. The Starsin [2004] 1 A.C. 715 considered.

·         (6) The change introduced by the 1999 contract was unequivocal as to the effect which it might have, even though the nature of the change that was brought about thereby was unexpected in 1999 as it was the economic crash through property inflation which necessitated the measures taken by the respondent in 2010.

·         (7) While the power to unilaterally alter a contract in the form agreed between parties is unusual, there is no basis upon which a court can change an unambiguous meaning through the application of any principle which contradicts express words.

·         (8) Contracts without unilateral alteration clauses require consultation and agreement prior to being changed, but a term against unilateral alteration is not to be read into a contract merely because that approach might seem beneficial.

·         (9) A court cannot override express terms but must affirm them. Hickey v Health Service Executive [2009] 3 I.R. 156 considered.

Negotiations on Sunday Premium had begun in 2018 and was referred to the Labour Court for a recommendation that was not accepted and in turn gave rise to further negotiations.

The Complainant is bound by an employment contract dated 23rd September 2008 and signed on the 29th of September 2008. That contract refers to a Company Agreement and states:

“Terms and conditions of employment may vary in accordance with the Company Agreements; new agreement will supercede current terms and conditions”.

The New Collective Agreement signed on the 8th of November 2023 states:

“This agreement is in full and final settlement of the Labour Court Recommendation LCR22630 in relation to the claim for Sunday Premium and therefore prevents future claims in this regards.”

Enhanced payments were made as part of this new agreement.

The intent of the parties was for terms and conditions to be agreed by Company Agreements.

The Complainant’s terms are governed by Company Agreements and while the matter was referred to the Commission prior to a company agreement been concluded that now is in place. The question arises where the Complainant has benefited from Company Agreements since 2008 when joining the Company without protest, can he absent himself from a term that was in negotiation prior to his referral to the Commission. The facts of this case give rise to a conclusion that as he has substantially benefited from the Company Agreement and the Sunday Premium was in dispute as part of that agreement by the collective and not just by him, on agreement of a new Company Agreement, as per his contract of employment his terms were amended and that covered Sunday Premium work. That agreement referred back to 2018 prior to the date of lodging this complaint.

While the new agreement signed in 2023 post-dates this referral, it is evidence of the process that governs how terms are amended and relevant to the interpretation of the extant employment contract, when the complaint was referred to the Commission. I find that the complaint is not well founded as the intent of the parties was for terms to be concluded by company agreement and not by individual negotiation. As the issue in dispute was in fact part of ongoing discussions on a new Company Agreement that commenced in 2018, while the  Complainant’s referral commission was made in 2019, the employee was bound by that process to amend his terms. It is not reasonable to cherry pick terms and to benefit from company agreements and then to seek additional benefits over and above those terms without rescinding the entire process that governs the change in terms and conditions.

I also note the following:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

As the Sunday premium value to be applied in any case would be the value as detailed in the collective agreement and that applies to this individual, the Complainant is receiving the benefit as set down in the Act and under his contract of employment.

I determine that the complaint is not well founded. The value of the Sunday Premium has been specified in the Collective Agreement and the agreement signed in 2023 reached full and final settlement on the interpretation of the collective agreement as it applied to Sunday Premium and included the period from 2018. The Complainant’s terms are bound by the Company agreement as he agreed that his terms would be changed in accordance with that company agreement.

Special Category Worker Night Shift CA-00069578-001

The Complaint is not well founded.

The Respondent called Doctor Gleeson who signed off on the original report which concluded that the Complainant was not a special category worker and therefore was not limited to working 8-hour shifts. She stood over the report and methodology used to arrive at that decision. That report was opened to this tribunal. On the evidence of this witness, I find that the Complainant was not a special category worker.

As the Complainant is not a special category worker his hours are correctly calculated in accordance with section 16(2) (b) of the Act and averaged over a 2-month reference period he worked less than 8 hours per shift. With reference to the cognisable period his average weekly hours are as follows:

·         12th May to 6th July 2019 average weekly 34.63 hours =7.49 hours on average

·         7th July to 31st August 2019 average weekly 33.43 hours=7.09 hours on average

·         1st September to 26th October 2019 average weekly 35.41 hours=7.26 hours on average

As the Complainant is not a special category night worker and he has not worked on average more than 8 hours in the relevant period as specified at section 16 of the Act, he has not worked excessive hours. I determine that his complaint is not well founded.

Sunday Premium:

The Complaint is not well founded.

Negotiations on Sunday Premium had begun in 2018 and were referred to the Labour Court for a recommendation that was not accepted and in turn gave rise to further negotiations.

The Complainant is bound by an employment contract dated 23rd September 2008 and signed on the 29th of September 2008. That contract refers to a Company Agreement and states:

“Terms and conditions of employment may vary in accordance with the Company Agreements; new agreement will supercede current terms and conditions”.

The New Collective Agreement signed on the 8th of November 2023 states:

“This agreement is in full and final settlement of the Labour Court Recommendation LCR22630 in relation to the claim for Sunday Premium and therefore prevents future claims in this regards.”

Enhanced payments were made as part of this new agreement.

The intent of the parties was for terms and conditions to be agreed by Company Agreements. The Sunday Premium compensation is specified in the collective agreement and that in any case would be what would apply in this case. I determine that the complaint is not well founded.

Special category night worker-excessive hours-Sunday Premium