Case Number: ADJ-00017634. Workplace Relations Commission

• Docket Number: ADJ-00017634
• Date: 09 October 2019
• Court: Workplace Relations Commission
• Parties: A Social Worker v A Charity Respite Centre

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant alleges she did not get any breaks or rest periods over a three-day period in breach of the Act.

Summary of Complainant’s Case:

The Complainant made a verbal submission. The Complainant was employed since 2010 as a Social Care Worker. The Complainant worked 58 hours per fortnight. The Complainant worked continuously at weekends and had no cover for her breaks. The Complainant did sleepovers and hade 4 Service Users to mind on her own. The period in question was April 20th 2018 to April 23rd 2018.

Summary of Respondent’s Case:

The claim is rejected. The claim was lodged with the Workplace Relations Commission on 23 October 2018. The Complainant had been on long term sick leave for the six months preceding the claim, excluding the period 20-27 April 2018. It is the position of the Respondent that the claim is limited to this one-week period between 20-27 April 2018. Prior to this singular week, the Complainant has been on long term sick leave since circa the week commencing 10 December 2017. Section 41(6) of the Workplace Relations Act 2015 (the "2015 Act") provides that: "Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates." Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v The Equality Tribunal and County Louth VEC [2016] IESC 40wherein McKechnie J stated: “It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. It is bound by what jurisdiction it has and must act accordingly.” It is on this basis that it is submitted by the respondent that the Adjudication Officer limit this claim to the period 20-27 April 2018. The matter before the Adjudicating Officer, has already been before the Labour Court, resulting in a comprehensive recommendation in September 2014 (LCR 20837). The claim was brought by IMPACT and SIPTU on behalf of its members, of which the Complainant was a member. It is the position of the Respondent that the Complainant is then in turn bound by the recommendation, accepted on her behalf by her nominated Union, SIPTU. The referral before the Court included the issues of sleepovers, maximum working week and rest periods. The Labour Court in their recommendation, LCR20837, recognised the operational difficulties in changing long established working patterns. The Court went on to recognise that ‘ a major restructuring of the way in which the services of those associated with these claims is delivered will have to be undertaken in order to bring about full compliance with the legislative requirements concerning working time. This is acknowledged by all parties.’ Following the Labour Court recommendation, a national steering committee was established consisting of representatives from the HSE, Tulsa, Department of Health and Section 38 agencies and officials from both SIPTU and Forsa. The group submit progress reports to the Labour Court, the latest in November 2018. The items raised before the Court have been dealt with on a phased basis. As part of this solution orientated approach, Local Implementation Groups (LIG’s) composed of both management and staff have been established in 3 pilot sites, one of whom is the Respondent, to identify and agree local...