Case Number: ADJ-00025536. Workplace Relations Commission

• Docket Number: ADJ-00025536
• Date: 29 April 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints / disputes to me by the Director General, I inquired into the complaints / disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints / disputes.

Background:

The Complainant was employed as Childminder for the Respondent’s children from 24 July 2018 until her employment ended on 4th June 2019. She was paid €11.00 per hour and worked 38 hours per week over 3.5 days per week. The Respondent is one of a couple with children, his partner is referred to as Ms X below. In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. The relationship was subject to the Code of Practice for Protecting Persons Employed in Other People’s Homes (2017).

CA-00032450-001 Complaint made under the Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The Complainant submits that she worked from 7.00am to 6.00pm (11 hours), Mondays, Tuesdays and Thursdays and 9.00am to 2.00pm (5 hours) on Wednesdays and that during her workday she consistently had to mind one or both of the children at all times and therefore did not receive any of her break entitlements under section 12 of the 1997 Act. In direct evidence the Complainant stated that she never got a break and that the younger child did not take naps as stated by the Respondent.

Summary of Respondent’s Case:

The Respondent submits that the Complainant’s terms and conditions of employment were well above the norm for childminding. Regarding actual breaks the Respondent cited the Code of Practice on Compensatory Rest Periods and Stasaitis v Noonan Services Group Ltd [2014] IEHC 199. The Respondent submits that it was not feasible for him to employ a second nanny whose sole responsibility was to relieve the Complainant of her supervisory duties. However, the Respondent fully expected the Complainant to take breaks from her daily activities and interacting with the children during the day. One of the instructions given to the Complainant was to have the TV on for one hour a day which the Respondent contends gave her down time. The Complainant had access to the home Wi-Fi and full use of the kitchen facilities. The Complainant’s duties excluded household chores like laundry and cleaning, nor did she have to cook the children’s dinners. The Respondent regularly reminded the Complainant that she needn’t feel she should occupy the children all day long, that she should let them play together so she could have a cup of tea or do whatever she wanted, which the Respondent submits the Complainant agreed was her approach. In direct evidence, the Respondent pointed out that the eldest child was in school from 8.10am to 1.00pm and that the younger child took naps.

Findings and Conclusions:

Section 12 of the 1997 Act states: Rests and intervals at work. 12.— (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). The Code of Practice on Compensatory Rest Periods states: Appropriate Protection 1. If for reasons that can be objectively justified, it is not possible for an employer to ensure that an employee has available to himself or herself the equivalent rest period or break set out in section 6(2) of the 1997 Act, the employer must make such arrangements as respects the employee’s conditions of employment as will compensate the employee. While neither “arrangements as respects the employee’s conditions of employment as will compensate the employee” nor “appropriate protection” are defined in, respectively, the Act and the Directive the Act specifies that these concepts do not include: i) the granting of monetary compensation to the employee, or ii) the provision of any other material benefit to the employee, other than the provision of such a benefit as will improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work. A common-sense approach should be adopted by employers and employees in such situations which takes account of the circumstances existing in the employment and has regard to the safety, health and wellbeing of employees. It would be desirable that employers and employees and/or their representatives agree appropriate protection measures as respects an employee’s conditions of employment. While it is not feasible to define such appropriate protection/conditions of employment measures, the concept might include measures which provide for, in addition to normal health and safety requirements: i) enhanced environmental conditions to accommodate regular long periods of attendance at work, ii) refreshment facilities, recreational and reading material ii) appropriate facilities/amenities such as television, radio and music iv) alleviating monotonous work or isolation v) transport to and from work where appropriate. In Stasaitis v Noonan Services Group Ltd [2014] IEHC 199, the issue of compensatory rest periods was considered by the High Court. The case concerned a security guard who is required to remain in a security hut for the duration of his eight hour shifts without any scheduled rest breaks. He was allowed to take as many breaks as he wanted during periods of inactivity and it was accepted that there were such periods during his shift. He was provided with kitchen facilities and an area in the hut to take such breaks. The court held that the requirement to provide compensatory rest periods had been complied with. Kearns P referred to the fact that kitchen facilities were provided and an area where breaks could be taken as the security man wanted during periods of inactivity. The Court did not accept the argument that employee had not received compensatory breaks as his employer had not specified fix breaks during his shift commenting that brakes of a fixed duration could have the effect of reducing the employees’ periods of actual rest period. Taking all of the above into consideration, I am satisfied that the Complainant had time when she was not supervising the children when she could have taken her breaks; for instance, when they were watching television. In many ways it was up to the Complainant to create the circumstances where she could take her breaks undisturbed by the children.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints / disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.

The complaint is not well founded.

CA-00032450-002 Complaint made under the Terms of Employment (Information) Act, 1994.

Summary of Complainant’s Case:

The Complainant submits that she never received a written statement of her terms and conditions of employment, which she submits had a considerable impact on her understanding of her rights upon the termination of her employment.

Summary of Respondent’s Case:

The Respondent submits that the Complainant was given spreadsheets which although silent on some details was equivalent to and served the purpose of a statement of terms and conditions of...