Complainant

Respondent

Anonymised Parties

A Driver

A Charity

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00005581-001

29/06/2016

The respondent employed the complainant as a team leader/driver in the period from 20^th of September 2015 until the 18^th of June 2016 (per complaint form) or from 22^nd of September 2015 to 18^th of April 2016 per respondent. The last date worked per records relied upon by both sides is the 15^th of April 2016. The complainant was paid €1,000 gross per fortnight and worked 60 hours per week (per complaint form). The parties made written and oral submission to the hearing.

The complainant submits that he was required to work in breach of s. 15 of the Act during his tenure. It was not uncommon for him to have to set off to have the car cleaned and organise the team before 10:00am and not get home some nights until after 10:00pm. His role required him to work all over the country and with no consideration for how many hours he worked. There were no records kept of how many hours anyone worked and pay slips made no mention of hours. Holiday time was calculated on the basis of 40 hour per week. While working away from home team leaders were on call for 24 hours a day. Time spent travelling to and from locations was not considered by the respondent as working time, neither was it paid.

In supplemental submission the complainant stated that he agreed with some of the figures submitted by the respondent in its supplemental submission. He provided a detail based on the car tracker record provided by the respondent and based on an 11am start time each day with a 30 minute lunch break. The figures also include a 30 minute allowance for car wash in excess of the hours. The resulting calculation (not in the complainant’s submission taking into account any away trips e.g. 12^th of January 2016 which required additional work and hours) is that the average hourly working week is 49.05 hours.

The respondent submits that the complainant never complained in accordance with its grievance and disciplinary procedure of any discrepancy concerning his hours of work hitherto, nor has it ever been complained of by any of the hundreds of employees it has employed over the years. There is an accurate record of the complainant’s working time per the car tracking system which is used to record hours of work and was used each day by the complainant during his tenure. It is assumed that everyone starts at 11am each day. The calculation of hours provided in supplemental submission makes a provision for a half hour lunch break only and for one half hour per week for car wash. The calculation for the three full weeks worked in January 2016 indicates an average of just over 47.5 hours per week worked. It appears that the complainant is using his diary to calculate his daily finishing times and that his calculations can’t be reconciled.

In arriving at a decision in respect of the alleged breach of s. 15 of the Act, I have carefully calculated the hours as recorded by the car tracking system on the basis that the start time was 11am each day with minor discrepancy. I have calculated the hourly working week based on the provision of half hour lunch per day and a half hour allowance for car wash per week.

The cognisable period of complaint is from 30^th of December 2015 until the last day worked on the 15^th of April 2016 i.e. from the 4^th of January 2016.

The complainant submitted a spreadsheet during the hearing which appears to me to double count the travelling time back from various locations and has totally skewed the figures.

My evaluation of the weekly working hours is based on the calculable weeks in the cognisable period of complaint (January to April 2016 amounting to 11 weeks) which equals an average of 48.5 hours. For the last 17 calculable weeks of tenure the average is 48.35 hours and for the full period of the employment the average is 48.28 hours per week. It is clear therefore that s. 15 of the Act has been breached based on the abovementioned criteria.

In making my decision in respect of the compensation which is just and equitable and reflects the fact that I am obliged to ensure that such amount will be dissuasive I shall take into account the fact that the respondent in this case was of the opinion that it was compliant and that the complainant had taken one hour per day for lunch. It was not in a position to produce any documentary evidence or record in this regard and did not demur when it was suggested that a period of less than one hour may have been taken. There was no mal fides on the respondent’s part and I am confident, that it had a local system in place that may have resolved the matter in the complainant’s favour and that it will review its systems to ensure full compliance for future reference.

The complaint is well founded and I hereby require that the respondent pay the complainant compensation in the amount of €350 (say three hundred and fifty euro) for breach of s. 15 of the Act.