Complainant

Respondent

Parties

Aaron  Foley

Dublin City Council, Parks Department

Complainant

Respondent

Representatives

Self-Represented but assisted by Ms J Foley.

Respondent Manager – Mr S Brock

Act

Complaint/Dispute 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-00062335-002

14/03/2024

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

CA-00062335-003

14/03/2024

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

CA-00062335-004

14/03/2024

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

CA-00062335-005

14/03/2024

The issues in contention concern complaints under the Organisation of Working Time Act,1997 by a Temporary Beach Lifeguard. The Employment began according to the Complainant, on the 10 June 2024 and ended on the 24th September 2024. He had been previously employed for Summer Seasons for year 2022 and year 2023. He had suffered a Workplace accident on the 15th August 2023.

The Complaints concern allegations of Respondent failures to provide, a proper Daily Rest Period, Proper Breaks, Paid Holidays and Payment for Holidays due after leaving the employment.

The rate of pay was stated by the Complainant to have been € 1,081.06 for an alleged 49-hour week.

The Complainant was self-represented but assisted by Ms J Foley. He gave an impassioned oral testimony assisted by his complaint form which had a detailed statement attached.

The Testimony was very broad ranging covering all complaints and the operation of the Service. It would be very difficult to separate the pure Working Time elements aspects of Rest and Work Breaks. The Holiday and Post Holiday Complaint were more personal to the Complainant.

1:1       CA: -00062335-002, (Daily Rest), -00062335-003, Work Breaks) -

The Complainant alleged that the Lifeguard Service is completely understaffed. Lifeguards, by the nature of their job, have to be constantly on watch. Any “breaks” taken are rushed. The understaffing also gives rise to pressures to work, in high season, all available hours. Staff are made feel “guilty” about any time away from their Stations/Watch Towers during the day. Taking days off is seen by the individual staff as leaving colleagues exposed. There has never, he maintained, been an Independent H & S or Working Time review of the Lifeguard Service.

1:2       Personal Holiday Entitlements 00062335-004 & 00062335-005 Holidays due Post Employment

It was accepted that monies due had been paid but issues of clarification remained. It was very upsetting that he had to pursue these matters after he had left the employment. The issue of the mistake in his Pay, an overpayment, had been handled badly and lacked professionalism.

The Respondent was represented by Mr Brock, a Senior Manager. An Oral testimony was given supported by a written submission.

2:1          CA: -00062335-002, (Daily Rest), - 00062335-003, (Work Breaks)

The Respondent argued that the nature of the Work and the staffing levels were such that Breaks could be taken without any issue. However, they might have to be irregularly scheduled especially if there was an unexpected short fall in staff (unexpected illnesses) or for example on a very busy Summer weekend, where the demands on the Lifeguards were exceptionally. In the worst case the Lifeguards could “lower the flag” i.e. suspend the service and take a break but this would be avoided where possible.

2:2       Personal Holiday Entitlements 00062335-004 & 00062335-005 Holidays due Post Employment

It was accepted that there had been some administrative issues regarding the classification of Holidays. It was complicated by the fact that the Complainant had a compensation claim with the Irish Public Bodies Insurance Company. However, all matters had now been resolved (it was understood) and if any further clarifications were required any requests would be welcomed.

3:1        The Legislative Position – Beach Lifeguards

The Organisation of Working Time Act,1997 governs these claims.

3:1:1        Personal Holiday Entitlements CA-00062335-004 & CA-00062335-005 Holidays due Post Employment were largely disposed of both before and during the Hearing.

3:1:2       CA: -00062335-002, (Daily Rest), 7 CA- 00062335003, ((Work Breaks) were the subject of discussion. The Complainant (who was not Professionally or Trade Union represented) made, under Oath/Affirmation, numerous points regarding the difficulties, in taking Breaks etc, that Lifeguards experienced during their daily work schedules. He presented as a person strenuously committed to providing the best possible Life Guarding service.

It was noted that the Respondent, did not provide any Operational Witnesses, Lifeguard Supervisory Mangers etc to the Hearing. In effect, it could have been argued that the Respondent was in a possible technical breach of Section 25 of the Act by failing to provide the Adjudication Hearing with any evidence of compliance save the word of Mr Brock of the HR Department. The possible interpretation was that the Lifeguard Service was operating well each Summer. There had been no staff complaints.

The Complainant argued that most of the Lifeguards were part time Summer workers, often University Students, who would not be well versed in OWT, Act,1997 regulations. In addition, they would be most unlikely to raise issues or complains.

It was not debated but the question of the correct categorisation of the Lifeguard Service was of interest to the Adjudicator. Section 3 (Subsection 3) of the Act regarding the “Civil Protection Service” and exemptions thereto, might need examination.

However, these were all issues that were not directly raised by either Party. There were in addition other pieces of Legislation that could have been pleaded by either party.

3:2        Adjudication conclusions.

CA: -00062335-002, (Daily Rest), 7 CA- 00062335-003,(Work Breaks.)

Complaints to rights commissioner

Section 27 (3) Organisation of Working Time Act,1997

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

The Complaints were regarding the Rest and Daily Breaks of the Complainant. The evidence presented was basically Sworn/Affirmed by each side. The Complainant was particularly passionate in his sworn / affirmation testimony. The Respondent had not submitted any operating evidence regarding the exact routines of the Service save the overall Respondent Testimony, which was ,nonetheless ,very professional, of Mr Brock.

Sub Section 3 (a)

On the basis above the Adjudication Officer view is that the claim is Well Founded.

Sub Section 3 (b) applies.

The Respondent is directed to ,as soon as is convenient, examine, in conjunction with relevant staff and or Trade Unions, the Beach Life Guard operating systems as regards the Organisation of Working Time Act,1997 with particular emphasis as to the Status of the Service regarding “Civil Protection” and if necessary, as a follow up, consider adopting a memorandum of understanding to cover the Service.

Sub section 3 (c) No compensation is warranted.

Organisation of Working Time Act, Breaks and Rest Periods, Lifeguards, Civil Protection