The Organisation of Working Time Act 1997 (OWT Act) is arguably the most difficult piece of employment legislation on the statute book to fully comply with and it troubles Operations Managers, Human Resource personnel and lawyers alike in terms of both monitoring and arguing such compliance. Whilst it provides a wide range of minimum entitlements to employees, it simultaneously potentially qualifies some of these rights by allowing for a number of exemptions and instances where exceptional circumstances may be argued by an employer to present as a justification for not adhering to its terms. This legislation is possibly best known for imposing a maximum number of weekly hours that an employee may be asked to work, averaged over a reference period of 4, 6 or 12 months in addition to providing for minimum (and much valued) paid annual leave and public holiday entitlements.

Today’s email, however, reviews two recent decisions of the Labour Court on appeal that explore some perhaps lesser known provisions in the Act that may nonetheless be extremely significant from the point of view of attempting to ensure continuity of operations and services. These include staff receiving at least 24 hours’ notice of starting and finishing times of work, receiving adequate daily rest of 11 hours in each period of 24 hours, not being required to work excessive hours during night time and compensation for Sunday work. It is vital for employers to understand that the keeping of detailed records is an absolute necessity both from a regulatory perspective and in terms of successfully arguing in subsequent complaints that the Act has been complied with. In this regard, Statutory Instrument 473/2001 – the Organisation of Working Time (Records) (Prescribed Forms and Exemptions Regulations - should be carefully examined.

This mail also reviews a case under the Act where the complainant alleged that he was assaulted by one of the proprietors of a business, in response to his protests that he was being forced to work excessive hours without access to adequate rest breaks. He argued that this conduct by the proprietor left him with no option but to resign his employment and therefore constituted penalisation amounting to dismissal under the terms of the Act. No one from the respondent - a bakery much in the news this year as a result of a sit-in by employees to obtain their minimum entitlements in redundancy – was present at the appeal hearing to explain the proprietor’s alleged actions and this may have influenced the outcome. Nonetheless, the finding in this case is significant in terms of demonstrating that if there is a clear link between an employee asserting his or her rights in terms of working time and a subsequent detriment occurring to him or her, liability will attach to the employer.

It is perhaps worth noting that these decisions concern employers in the hospitality and transport sectors and that all three cases went against the employer on appeal, even though only one of the relevant claims had been initially upheld by a Rights Commissioner.

These cases are:
* Hyper Trust trading as Leopardstown Inn and Gordins
* Stobart (Ireland) Driver Services Limited and Burke (and others)
* Paris Bakery and Pastry Limited and Mrzlzak


Hyper Trust Trading as Leopardstown Inn and Gordins (WTC/14/44, Determination No. DWT 1467, 11th July 2014)

The complainant in this case was employed by the respondent’s restaurant and bar as a chef between April 2013 and January 2014. As is often common with OWT Act complaints, he alleged that a number of provisions of the legislation had been breached by his employer.

In summary, these included:

* Section 11 – The requirement to provided 11 hours daily rest in every 24 hour period
* Section 12 – The requirement to provide minimum rest breaks during working hours
* Section 14 – The obligation to compensate for Sunday work
* Section 17 – The obligation to notify starting and finishing hours of work

His complaints before a Rights Commissioner failed for reasons that are not set out in the appeal finding. The Labour Court examined each heading of complaint and ruled as follows:


* Section 11 – Daily rest

It appears to have been agreed by the parties under this heading that the Act was infringed once and only for a matter of 20 minutes. The complaint normally worked from 12.00 until between 21.00 and 22.30. On one occasion, he started work early at just before 9.00 resulting in the 11 hours rest provision being infringed. The respondent attempted to rely on the exceptional circumstances provision in Section 5 of the Act, namely that because of ‘the occurrence of unusual and unforeseen circumstances beyond the employer’s control, it would not be practicable for the employer to comply with the section concerned.

The Court rejected this argument, finding that the circumstances were not unforeseen and no explanation was provided by the respondent as to why the complainant could not have started 20 minutes later than he did. However, it accepted that the breach was technical and this was reflected in an award of just €100 under this heading.


* Section 12 – Minimum rest breaks

An employer must at a minimum allow an employee a rest break of 15 minutes for every 4 hours 30 minutes worked, rising to 30 minutes for every six hours worked. The legislation does not oblige an employer to pay for such breaks. The complainant argued here that while he received ‘smoke breaks’ he was never allowed to take a break of the length set out in the legislation. The respondent in turn argued that he was not prevented from taking such breaks and that the staff handbook specifically provided for them. It argued that the complainant had not produced any evidence to support his arguments.

In response to this contention, the Court noted, as in many previous decisions, that Section 25 (1) of the Act obliged an employer to keep records of compliance with the legislation. Failure to keep such records shifts the onus of proof of compliance to the employer under the terms of sub-section (4). The respondent employer accepted in this case that such records were not available and so the onus fell upon it to otherwise show compliance. In this regard, it relied upon the terms of the staff manual. However, the Court noted that the manual provided that responsibility for allocating breaks lies with the ‘person in charge in your department’. In this case, the respondent had already told the Court that the person in charge could not confirm that he had discharged that duty in relation to the complainant.

The Court therefore concluded that the staff manual did not assist the respondent and upheld this aspect of the complaint. However, in awarding limiting compensation to €500 under this heading, it took into account that the complainant availed of free meals every day which he must have been given time to consume and this broadly equated with those provided for in the legislation, even if it did not exactly comply with it.


* Section 14 – Compensation for Sunday work

The Labour Court has regularly stated that an employer must be in a position to prove either that the fact of an employee being obliged to work on a Sunday has already identifiably been taken into account in determining his or her rate of pay or that the employee has otherwise been compensated for Sunday work. In response to this aspect of the complaint, the respondent accepted that the complainant had not received any extra payment but had the benefit of free meals on each day that he worked as compensation for Sunday work and that this benefit had a monetary value.

The Court examined the wording of the section and rejected this argument. It stated that the wording made it clear that compensation for Sunday work must involve the payment of an extra sum of money or the granting of additional time off. Substituting a benefit-in-kind such as access to free meals did not satisfy the requirements of the section. An award of €2,000 was made under this heading.


* Section 17 – Notification of hours of work

If a contract or other relevant agreement does not state the normal starting and finishing times of each day of work for an employee, Section 17 requires an employer to give at least 24 hours’ notice of such times. Where an employee is required to work ‘additional hours’ over and above normal hours of work, the employer is similarly obliged to give 24 hours’ notice. In this case, the complainant stated that his starting and finishing times were not set out in his contract but that he was required to work until the restaurant closed and this varied from day to day. The respondent told the Court that the complainant was notified each Sunday at 3 p.m., in person or by phone, of the days which he was required to work the following week, starting at noon each day. It said that his finishing time was not fixed but was invariably sometime between 10.00 and 10.35 each night, the normal closing time of the restaurant.

The Court concluded from this that where the complaint was rostered to work on a Monday, he could not have been given 24 hours’ notice of his start time that day. In addition, the respondent had failed to set a normal finishing time, despite been in a position to be relatively precise as to when that might be. The Court also therefore upheld this aspect of the complaint, finding that the complainant was entitled to know in advance the time at which his shift will end. €900 was awarded under this heading.

In all then, the complainant was awarded a total of €3,500 in compensation. To this must be added the cost of preparing for and attending two hearings for relevant staff and the legal representation that the respondent hired to defend its position. Arguably, all this could have been avoided by a better understanding of the legislation.


Stobary (Ireland) Driver Services Limited and Burke (and Others) (WTC/14/34, Determination No. 1464, June 25th, 2014)

The 11 complainants in this case alleged several breaches of the OWT Act and were each awarded €5,000 in compensation by a Rights Commissioner (RC) under three of the four headings of complaint. The respondent employer appealed this finding to the Court. The three headings of complaint were:

* Section 13 – The requirement to provide weekly rest of 24 consecutive hours
* Section 16 – The obligation to limit the number of night time hours worked
* Section 17 - The obligation to notify starting and finishing hours of work


* Section 13 – Weekly rest

Under Section 13, an employer is obliged to ensure that an employee receives a weekly rest period of at least 24 consecutive hours. In principle, this 24 hour period should be immediately preceded by the daily rest period of 11 consecutive hours provided under the terms of Section 11 of the Act. In this case, the union on behalf of the complainants alleged that the weekly rest period was interrupted by the necessity for the complainants to ring in to ascertain the starting time for their next shift. The respondent argued that these calls did not interfere with rest periods of the complainants and did not come within the definition of working time and cited a number of European authorities in support of this contention.

The Court referred to a previous decision it had made on this issue that involved the same respondent. It noted that to constitute working time, the employee must be at his or her place of work or at his employer’s disposal and carrying on or performing the activities or duties of his or her work. In the previous case, the respondent had confirmed that a disciplinary sanction would follow for employees who did not make the call as they would fail to start their next shift at the scheduled time.

The Court found therefore that employees were duty bound to telephone in during their rest and it was therefore self-evident that they were at their employer’s disposal and performing work duties when doing so. In this instance, the respondent stated that no disciplinary action would result if the call was not made. The relevant employee would simply not be rostered for work. The Court concluded that this did not materially alter the situation and upheld the complaint. €750 was awarded to the complainants under this heading.


* Section 16 – Night time hours

This section of the Act does not permit an employer to allow a night worker – an employee who normally works at least three hours of daily working time between the hours of midnight and 7 a.m. and at least 50% of annual working hours between such times - to work more than eight hours over a 24 hour period, averaged over a two month reference period. The union alleged that the complainants were required to cover a 24 hour/7 days a week operation with shifts of between 9 and 15 hours. In this instance, the respondent accepted that the Act had been breached and the Court awarded €2,000 to each of the complainants under this heading.


* Section 17 – Notification of hours of work

The union stated here that the contracts of employment of the complainants do not set out the starting and finishing times of work and therefore under section 17, they should be provided with at least 24 hours’ notice of shift starting times but that this did not happen. Instead, the complainants were required to telephone 12 hours before the end of their weekly rest period to find out their starting time for the following day.

Thereafter, it appeared that the complainants had a three hour window within which they might be required to start or finish work. The respondent argued in response that the complainants have no normal or regular starting times due to the nature of the haulage business, and that the legislation allows for variations to start and finish times where a company is subject to unforeseen changes to its operations. It stated that it therefore operated a ‘task and finish’ policy and that in the case of DMR Transport and Majchrzak, the Labour Court had accepted that in some instances, the finishing times of work were not capable of ascertainment in advance and therefore Section 17 could not be complied with.

The Court, however, said that it could not accept that the argument advanced concerning the ‘task and finish’ policy had the same relevance when examining the obligation under Section 17 regarding starting times of work and that in all the circumstances, the respondent had not met its obligations under the section. A sum of €1000 was awarded under this heading amounting to a total of €3,750 to each complainant (€41,250 in total), as opposed to the €5,000 each awarded by the RC. The lower award may have been influenced by preliminary issues successfully raised by the respondent that the RC had granted an unnecessary extension of time to claim.


Paris Bakery and Pastry Limited and Mrzlzak(WTC/14/58, Determination No. DWT 1468, July 18th, 2014).

The complainant worked as a waiter for the respondent. He made a number of claims to a Rights Commissioner (RC) that the OWT Act was infringed by his employer, some of which were upheld. His claim that he was penalised by his employer contrary to Section 26 of the Act failed, however, and it was that decision which was the subject of this appeal to the Labour Court. The respondent did not attend the appeal hearing and so the case proceeded on the uncontested evidence of the complainant.

The complainant stated that he began work on 10th August 2013 at 11 a.m. and he expected to finish at 11 p.m. that night. He worked alone in the restaurant area and was so overworked that he did not have access to a break. During his shift, the proprietor of the respondent arrived in the restaurant and allegedly spoke to him in insulting language. The complainant then informed the proprietor that he was working alone and that he was entitled to a break. He gave evidence that the proprietor then followed him and head-butted him without warning. He left the premises immediately, reported the assault to the Gardai (a copy of the report was put in evidence) and did not return.

The Court noted that Section 26 of the OWT Act states that ‘an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act’. In turn, if such a penalisation amounts to a dismissal, the employee affected has the option to bring a claim under the OWT Act itself or under the Unfair Dismissals Acts, but not under both. The complainant in this case did not have the required one year’s service to bring an unfair dismissal claim. It is worth noting, however, that under Section 27 of the OWT Act, compensation of up to two years remuneration may be awarded to a complainant, the same potential threshold of compensation set under the unfair dismissals legislation.

The Court concluded that the conduct of the employer in committing a serious and unprovoked assault on the complainant undermined the duty of mutual trust which lies at the root of every contract of employment, and was a repudiation of the contract amounting to dismissal. It was fully satisfied that the respondent’s conduct was a direct response to the issues raised by the complainant concerning access to statutory breaks and was therefore penalisation constituting dismissal under the OWT Act. The complainant was awarded €10,000 in compensation.