ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001542

Complaint for Resolution:

Date of Adjudication Hearing: 5th July 2016.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act 1997 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

BACKGROUND:                                                                                                                                 . The Complainant had submitted a complaint under Section 27 of the Organisation of Working Time Act 1997, that the Respondent was in breach of his rights and entitlements under Section 15 of that Act in relation to weekly working hours.   The Complainant was employed by the Respondent from 30^th June 2014 to 19^th July 2015 and his weekly rate of pay was €1,250.00c gross.   The complaint was presented to the WRC on 10^th December 2015.

Summary of Complainant’s Case:

The Complainant was submitting that he was required to work more that the maximum permitted average weekly working hours permitted in accordance with Section 15 of the Act.

The Complainant gave a detailed background to his period working for the Respondent.

He said that when he commenced employment with the Respondent in June 2014, he was working part-time as he was engaged in a demanding Horticulture Course and it was envisaged that he would develop this side of the business and that they would be able to grow their own produce on site.

The part-time work continued until circa April 2015.   On 1^st April 2015, he spoke to the Owner of the Hotel, as he believed that he had turned the place around.   The position of Head Chef was offered to him and accepted by him on that day.   He signed a contract of employment in that full-time position on 10^th April 2015.   When he accepted the position of Head Chef he advised the Respondent that it was important that he be able to put a team together that was able to sustain the continued growth of the food business and he expressed concerns about the support staff as he did not believe that they were up to the standard he wished to set and maintain; and with that in mind he could source staff and get them in place ASAP.   Two were hired, but did no stay on long.

The Complainant said that he worked and did his best to keep the show on the road.   He said that he was now working ‘all the hours of the day’ and was continuously working 100 hour weeks.

He said that from about mid June he was constantly seeking assistance in relation to staffing level.   He was making such requests from the HR Department: who told him they were doing their best to get him the staff required.

The Complainant then contacted the Owner about the problems and the Owner told him that he was doing a great job and to keep going as long as he could and the Owner would come to the Hotel in due course and they could discuss the matter further.

The Complainant said that he kept working, but the conditions were intolerable and he said that at this stage he was using tablets to stay awake as he was working such long hours.

The Complainant referred to the position on 20^th June 2015 and his discussion with the General Manager.   He said that in discussion the General Manager said that he (the Complainant) was not properly managing and he should be doing less work.   The suggestion was that he was spending too much time actually working rather than overseeing matters and ensuring everyone else was working to capacity.

The Complainant referred to 3^rd July when he said he asked for assistance as someone did not turn in for work, but no help was provided and no effort was made to provide help.

In his direct evidence the Complainant said that he did not clock in and out of work.   He said that he worked 100 hours per week and sometimes more.

In response to questions he said that he worked 6 days per week, but that he was generally in the Hotel every day.   He said he generally worked from 7.30am to 8.30pm daily and said he got no official breaks.

It was pointed out that this was 13 hours per day, which for 6 days per week amounts to 78 hours per week, which is considerably less than the 100 per week he claimed that he worked.

In response to further questions the Complainant confirmed and acknowledged that he had very considerable control of his working hours.

However the Complainant said that he was consistently and persistently seeking help and additional staff and this was denied to him; he said that he tried every avenue open to him to get help to ease his workload, but none was given.   He said that he just had to work these long hours to keep things going.

The Complainant submitted copious emails in support of this case.

The Complainant sought a favourable decision and he sought redress in the form of compensation as provided for in the Act.

Summary of Respondent’s Position:  

The Respondent was denying and rejecting the complainant.

The Respondent said that the Complainant was employed by them as Head Chef on a salary of €65,000.00c per annum.   The Respondent said that all salaried Heads of Department dictate their own hours of work.

The Respondent said that Section 3(2)(c) of the Act states: “This Act shall not apply to a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by herself or himself, whether or not provision for the making of such determination by that person is made by her or his contract of employment.”

The Respondent said that as a Head of a Department the Complainant should have monitored his working hours to be more or les in line with the requirements of the Act.

The Respondent said that the Complainant was on site when he not required to be and he was advised of this by them.   They said that he was engaged in diverse activities outside his normal duties and he was often on site and not in chef’s uniform.

The Respondent said that the Complainant commenced with them as a Chef de Partie on 30^th June 2014 and in April 2015 he was offered the post of Head Chef and he accepted it on 10^th April.   On 24^th April 2015 he signed his contract of employment and a list of his duties in that position.     The Respondent said that on changing position the Complainant moved from a rate of pay of €15 per hour to a salary of €65,000.00c per annum and they said this salary is well above the industry ‘norm’ for a Head Chef in the Region and it was €25,000.00c more than the previous Head Chef was paid.   The Salary took into account the hours that would be required to launch the new product and the expected increase in business.    

The Respondent said the Complainant’s contract of employment states:

“Your basic hours of work will be 39 hours per week.   These hours will be normally, but not exclusively spread 5 days over 7 days per week.   Hours of work may vary to meet with demands of your position and the needs and patterns of business.”

The Respondent said that rosters submitted to the Hearing show that when the Complainant was employed as a Chef de Partie his required hour of work were stated and his total hours worked were submitted and paid each week.   On his promotion to Head Chef the Complainant moved to a salary and he rostered himself “ON”.   The Complainant has submitted timesheets during this period where he has put “ON/Salary” in total hours worked.

The Respondent said that they dispute that the Complainant worked 100 hours per week and submitted his 2014 record of hours worked.   The Respondent said they agree that on occasion he was required to work 7 days, one of these occasions was due to an experienced chef de partie going out sick at short notice and the Complainant was required to cover.

The Respondent submitted that the Complainant was, on several occasions, advised to curtail the hours he came into work as there was no need for him to be on site, particularly in the morning when experienced breakfast chefs were on duty.   The Respondent and in particular HR continuously advised the Complainant to take days off and extra days off after working 7 consecutive days, but he refused to do so.

The Hotel General Manager spoke with the Complainant on numerous occasions regarding inefficient rostering and in particular, overstaffing on quiet days and understaffing on busy days.   This issue, along with others came to a head in July when the General Manager formally discussed this with the Complainant and then followed it up in writing, by email.   The Complainant handed in his notice on 3^rd July in direct response to that email.   He was subsequently told by the General Manager that he would not be required to work his full notice and that he would be paid in lieu.

The Respondent said that they have never received any detail of the Complainant’s claims.   They did however receive a “strictly without prejudice” letter from a named firm of solicitors dated 3^rd May 2016.   In this letter the Complainant is claiming for loss of earnings for 39 weeks since his resignation; the Respondent said there can be no merit in that claim as he resigned his job:   He is further claimed 560 hours of overtime payment, but his job was a salaried position and no overtime payments are payable; he further claims general damages and legal costs.   The Respondent said that under the legislation no awards can be made under these headings.

The Respondent said that the complaints under the Organisation of Working Time Act 1997 are entirely without merit and they should be fail and be rejected and they sought findings and a decision to that effect.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act 1997, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the same Section of that Act.

I have carefully considered all of the evidence and submissions made to me by both parties and I have concluded as follows.

I note that the sole and only complaint referred to me and properly before me is a complaint of an alleged breach by the Respondent of the provisions of Section 15 of the Act in respect of the Complainant in relation to maximum weekly working hours and that is the only matter in which I am required to make a decision and I will be confining myself to that that in my findings and decision.   Other matters were raised at the hearing, however none of them are relevant to a complaint under the Organisation of Working Time Act 1997 (and indeed were not included in the Complainant Form submitted by the Complainant), accordingly I will not be making any findings, decisions or observations in relation to those matters.

Section 3(2) of the Organisation of Working Time Act 1997, states:

“Subject to subsection (4), part II shall not apply to—

       (a) a person engaged in—

1. sea fishing

2. other work at sea,   or

3. the activities of doctors in training

1. a person—

1. who is employed by a relative and is a member of that relative’s household,   and

2. whose place of employment is a private dwelling or a farm in or on which he or she resides and the relative resides,   or

1. a person, the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by herself or himself, whether or not provision for the making of such determination by such person is made by her or his contract of employment.”

I note that the Complainant himself acknowledged at the hearing that he had very significant control of his working hours.  

I find that I am completely satisfied, and I note that it was accepted and acknowledged by the Complainant, that he is “a person, the duration of whose working time is determined by himself” and accordingly he falls four square within the provisions of subsection (c) quoted above.   Accordingly, the Complainant is not covered or comprehended by Part II of the Act, which includes Section 15 in relation to (maximum) weekly working hours.

Based on the forgoing findings and in accordance with the provisions of Section 27(3) of the Organisation of Working Time Act 1997 I declare that the complaint in relation to Section 15 of the Act in respect of weekly working hours is not well founded; it is rejected and is not upheld.

Dated: 24^th October 2016