Background
The case of Ana Oliveira v B. Gallagher Limited trading as the Station House Hotel (ADJ00040797) examines the circumstances under which an employer will be in breach of the Organisation of Working Time Act, 1997, if an employee is not provided with an eleven hour rest period in every twenty four hours worked.
Ms Oliveira (the Complainant) brought a complaint under Section 27 of the Organisation of Working Time Act, 1997, against the Station House Hotel (the Respondent) to the Workplace Relations Commission (WRC), alleging that, between May 2022 and July 2022, on eight occasions, she was not provided with an eleven hour rest period in every twenty four hours worked. The Complainant alleged that, on each occasion, the Respondent required her to work a late shift, ending at 11 p.m., followed by a morning shift, commencing at 7 a.m. which resulted in her not getting eleven hours of rest within the twenty four hour period.
Legislation and Case Law
The Respondent attempted to defend the claim on a number of grounds:
“The entitlement to a daily rest period – of not less than 11 hours in each period of 24 hours of work – is a right that is set out in section 11 of the Organisation of Working Time Act 1997.
There are however exemptions to this provision.
There is an exemption where there has been a change in shift (as per section 4 of the Organisation of Working Time Act 1997 which provides
“…these sections (including section 11) shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11..” and
There is another exemption from section 11 (under SI 21/1998) where the activity requires the “continuity of production of the provision of services” and includes the activity of tourism. (Schedule para 3 of SI 21/1998).
If an exemption applies on either basis there is no breach if the employee receives compensatory rest as per Regulation 4 of SI 21/1998.”
The Respondent also relied on the Labour Court decision of Marchford Ltd v. Dariusz Olejarz DWT 1180 to support the finding that where there has been a shift change an exemption under section 4 may arise and where equivalent compensatory rest has been provided to the worker, no breach of section 11 occurs.
Decision
Ultimately, the Adjudication Officer decided that the Complainant received compensatory rest for all eight of the section 11 alleged breaches, however, the right to an exemption is not only determined by whether compensatory rest has been provided. The Respondent’s right to apply an exemption must first be established.
The Adjudication Officer determined that:
“In respect of a section 4 exemption, I accept that in seven of the eight instances where a continuous rest period of 11 hours was not provided to the Complainant, that seven of those occasions arose from circumstances that were not planned. It is relevant that the employment in question only lasted 3 months and I accept the Respondent’s evidence that during that time, unforeseen challenges did arise and this required the Respondent to change the Complainant’s at the last minute…
I find that the complaint – that the Respondent breached the Complainant’s right to a rest period (as per section 11 of the OWTA) on one occasion namely 11th / 12th May 2022 – to be well founded.
Under section 27 (3) of the OWTA for a breach of section 11 I may make an award of compensation not exceeding 2 years renumeration.
I make an award of compensation to the Complainant for this breach in the sum of €400.00. My reason for this is the fact that even though only one of the eight alleged breaches of section 11 succeeded, an award under section 27 (3) must be at a level which deters future breaches by the Respondent. €400 is a proportionate remedial sum bearing in mind that the Complainant had only started work a week before this breach occurred and this breach was done without any apparent appreciation by the Respondent that they should not have managed their roster in this way.”
Takeaway
The takeaway for employees considering bringing a complaint under Section 27 of the Organisation of Working Time Act, 1997, is to be in a position to demonstrate that they have not been afforded an eleven hour rest period in every twenty four hours worked.
For employers, it will be necessary to demonstrate that they either provided the necessary eleven hour rest break within every twenty four hours worked or that one of the permitted exemptions applied in each and every circumstance.
Further information
This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@wordpress-576593-6594403.cloudwaysapps.com or contact the offices of Crushell & Co Solicitors.
