Case Number: ADJ-00017411. Workplace Relations Commission.
| Docket Number | ADJ-00017411 |
| Hearing Date | 10 December 2018 |
| Date | 01 February 2019 |
| Court | Workplace Relations Commission |
| Parties | Senior House Matron v Secondary School |
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
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The Complainant was employed as a Senior House Matron by the Respondent, a day and boarding secondary school, from 19thAugust 2007 to 20th August 2018 when her employment was terminated by way of redundancy. The Complainant was paid a monthly salary of €2,200. The Complainant submitted a WRC complaint referral on 10th October 2018. It should be noted that the WRC complaint referral form is not a statutory prescribed form. While complainants are encouraged to particularise their complaints on the complaint form, this does not always occur. The complaint referral form submitted by the Complainant contained two specific complaints relating to breaks and excessive hours. In the narrative on the form, the Complainant made reference to not receiving Sunday premium. At hearing, it transpired that the complaint relating to breaks actually encompassed three issues – (i) rest breaks, (ii) daily rest breaks, and (iii) weekly rest periods. For ease of reference, each complaint has been given its own complaint reference number as follows: CA-00022540-001 Rest breaks CA-00022540-002 Excessive hours CA-00022540-003 Daily rest breaks CA-00022540-004 Weekly rest periods CA-00022540-005 Compensation for working on Sunday Both parties made submissions at the hearing and were afforded to opportunity to make additional submissions following the hearing – the last submission was received on 17th January 2019. The herein complaint was submitted to the Workplace Relations Commission on 10th October 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 11th April 2018 to 10th October 2018. However, the Complainant’s employment with the Respondent was terminated on 20th August 2018 and therefore the cognisable period cannot extend beyond that date. Furthermore, according to the rosters submitted by both parties, the last day the Complainant was rostered for duty in the Respondent’s school was Friday 22nd June 2018. After that date, the school was closed for the summer holidays and the Complainant commenced a period of annual leave. Taking all of the foregoing into consideration, I find that the cognisable period for the herein complaint is 11th April 2018 to 22nd June 2018. |
CA-00022540-001 Rest breaks Summary of Complainant’s Case:
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The Complainant submits that she did not receive rest breaks The Complainant relied on the following precedent in support of her case –UK Court of Appeal [2004] EWCA Civ 1559 Gallagher & Ors v Alpha Catering Services Ltd. |
Summary of Respondent’s Case:
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The Respondent refutes the Complainant’s assertion that she was not given rest breaks. However, they do acknowledge that hourly breaks were not recorded but suggest that local arrangements were in place to ensure that employees got their breaks. Moreover, the Respondent submits that in her role as Senior Matron, the Complainant was substantially in control of her own work. The Respondent has submitted the following precedent in support of their case: Stasaitis v Noonan Services Group Ltd, the High Court 2014 IEHC 199. |
Findings and Conclusions:
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Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows: (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). Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows: “ 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 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.” The issue at the heart of this referral is whether the Complainant received the breaks to which she is entitled under Section 12 of the Act. The Complainant alleges that she did not receive such breaks. The Respondent has cited the High Court case Stasaitas v Noonan Services Group Ltd [2014] ELR 173as an authority for the proposition that the Act does not require breaks to be specified in all circumstances. However, the Complainant in that case was a security guard and, therefore, works in an industry which under the Organisation of Working Time (General Exemptions) Regulations, 1998 is exempt from the requirements of Section 12 of the Act. Accordingly, it is my view that the precedent quoted is not an authority for the proposition advanced by the Respondent. I note the Respondent’s contention that in her role as Senior Matron, the Complainant was substantially in control of her own work and, therefore, was in a position to manage her own breaks. I must now decide if the Respondent is correct in placing the onus on the Complainant to ensure compliance with the hourly break requirements of the Act. In this regard, I am guided by the Labour Court which found in the case ofGina’s Italian Ice- Cream Ltd and Ewelina Gacek (DWT 1627) that: “The Court finds that the responsibility for ensuring compliance with the Act rests with the employer.” In light of the Labour Court’s findings, I find that the Complainant’s role as Senior Matron does not remove the Respondent’s obligation to her under Sections 12 nor their obligation under 25(1) of the Act to maintain records of all breaks taken. Taking all of the above into consideration, I find that the Respondent did not keep appropriate records to show compliance with Section 12 of the Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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I have given careful consideration... |
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