Case Number: ADJ-00010911. Workplace Relations Commission

• Docket Number: ADJ-00010911
• Hearing Date: 06 April 2018
• Date: 16 October 2018
• Court: Workplace Relations Commission
• Parties: A Security Guard v A Security Provider
• Respondent: A security provider

ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00010911

Parties:

	Complainant	Respondent
Anonymised Parties	A security guard	A security provider

Complaints:

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-00014739-001	03/10/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00014739-002	03/10/2017

Date of Adjudication Hearing: 06/04/2018

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 3rd October 2017, the complainant referred complaints pursuant to the Organisation of Working Time Act. The complaints were scheduled for adjudication on the 6th April 2018.

The complainant also referred complaints dealt with in ADJ 10212, where the adjudication officer deemed that the complaints failed for lack of prosecution, due to the complainant’s non-attendance at the adjudication.

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:

The complainant worked for the respondent between the 6th June 2014 and the 17th July 2017. He asserts that there were breaches of the Organisation of Working Time Act regarding daily and weekly rest periods; the respondent denies the claims.

Summary of Complainant’s Case:

The complainant outlined that he could raise breaches of the Organisation of Working Time Act back to 2015. He had not thought of the second set of issues addressed in this adjudication when he submitted the first set of forms. He had also referred another set of complaints subject to CA-00017450. In respect of daily rest breaks, the complainant said that on the 8th September 2016, he worked in a named town from 1pm to 9pm and then drove to the control room (about 22 kilometres away) to work from 9.30pm to 6am. On the 7th July 2016, he started in the same facility at 1pm and finished at 9pm, before starting in the control room at 9.30pm, finishing at 6am. On the 10th July 2016, the complainant started at 12 noon and worked to 6pm in the town and was supposed to start at 6pm in the control room. He finished at 6am the following day. On the 8th June 2016, the complainant started at 6pm and finished at 6am and then went to the town at 1pm and then to the control room at 6pm. He referred to text messages from a named member of management. On the 23rd May 2016, the complainant worked at the control room between 6pm to 6am and then at a named site between 1pm and 9pm. On Sunday 29th May 2016, he worked at another site between 12 noon to 6pm and then in the control room from 7pm to 6am. In respect of weekly rest breaks, the complainant outlined that between the 12th and 20th February 2017, he worked nine days in a row. Between the 28th December 2016 and the 2nd January 2017, he worked between 10am and 9pm, six days in a row. In the week of the 6th February 2017, he worked Monday, Thursday, Friday (doing 9am to 9pm and 10pm to 3am) and on Sunday. In the week of the 20th February 2017, the complainant had Tuesday and Wednesday off. The complainant said that a named member of management was in charge of doing the rotas. The complainant had raised this with senior managers (present at the adjudication), who told him he had to work, even if he was sick. He raised the specific issue of the back to back shifts. He had spoken to the respondent about excessive hours but they were not happy. He included these issues in the second set of complaints as he had not known his rights.

Summary of Respondent’s Case:

The respondent referred to the previous complaints referred by the complainant that had been dealt with at an adjudication in November 2017. It referred to the requirement for the complainant to present a stateable case of breaches of the Act (Nolan Transport v Antanas DWT1117). It submits that per S.I. 21/1998, “any activity of security or surveillance” is exempted from the rest period requirements set out in sections 11, 12 and 13 of the Act. The 2015 and later, the 2017 ERO applied to the complainant’s employment. Referring to Stasaitis v Noonan Service [2014] IEHC 199, the complainant could avail of compensatory rest arrangements, for example better physical conditions. Referring to the Code of Practice on Compensatory Rest Periods, the respondent cites “when any variation of the 11 consecutive hours statutory rest is permitted under the Act, the employer should ensure that the health and safety requirements for adequate compensatory rest are sufficient in the circumstances pertaining to that employment. This is equally applicable to the weekly rest provision.” It submits that on every occasion the complainant did not receive a rest period provided in the Act, from which he was exempt, he was afforded rest in compliance with S.I. 21/1998 and compensatory rest in line with the Code of Practice. He was generally rostered for at least two days off each week, generally concurrently. He was paid breaks and had access to canteen facilities. The respondent submitted that there was no basis to extend time for the complaints. It submitted that the complainant’s employment was within the scope of the Employment Regulation Order. The complainant had full facilities available to him at the control room. There was a back room. Their role was to monitor a business campus and the complainant would be taking over from the named manager. It submitted that on Sundays and at night time, the barrier to the business centre was quiet. The person on duty at the control room could not sleep. The respondent submitted that the complainant was on a standard rota and worked 40 hours. He was off Tuesday to Thursday. Staff might...