ADJ-00007889

Complainant

Respondent

Parties

A Recruitment Consultant

An Employment Agency

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-00010047-001

06/03/2017

The complainant began work with the respondent on June 24^th 2015. In the early part of her employment her working hours were regular. However, from June 2017 until she terminated her employment on September 29^th, 2017 they rose considerably.

In addition to a general increase in her hours she also frequently worked on Sundays for which there was no extra remuneration.

She referred her complaint to the WRC on March 6^th 2017

The complainant says that her working hours according to her contract were thirty seven and a half hours.

In the early stage of her employment when she was still learning these contracted hours were the norm.

However, once she became accomplished in the work she assumed greater responsibility; starting earlier in the morning and coming in to work at the weekends. She had a single client and their need for staff could vary, but she felt that she had to ensure that the needs were met

She claims that between March and September she worked an additional   thirty seven and a half hours per month, Monday to Friday and a total of two hundred and thirty four hours at weekends in the same period.

All of these hours were worked on her own initiative and as she saw the business need to do so and she did not make any claim at the time for additional payment or time off in lieu.

The respondent confirmed the contract hours as outlined above and also that it does not operate an overtime system but instead gives time off in lieu of additional hours worked.

It did not dispute that the complainant did, in fact, work additional hours and the quality of her work and commitment was praised.

However, the amount claimed was disputed.

Following her resignation the amount of additional hours worked was calculated as being equivalent to twenty working days and she had been paid for this. Evidence was given that the respondent undertook a detailed review of the patterns of work and reached this conclusion.

It was not accepted that the complainant worked the total claimed and specifically in relation to the weekends it disputed that a full day shift would have been worked. The first the respondent knew of a claim was in a letter from the complainant’s solicitor on February 1^st 2017, some four months after she had left.

There is a great deal that is unsatisfactory about this case.

First, the respondent, by its own admission kept no record of the complainant’s working hours nor, it seems, did they exercise any management control over the complainant’s working arrangements in respect of which she enjoyed total autonomy.

On the other hand the complainant’s position is not entirely satisfactory either.

Her claim that she worked a suspiciously rounded thirty seven and a half hours EVERY month between March and September stretches credulity somewhat. The hours claimed for weekend working varied somewhat from an average of four hours per day (March) to seven per day (April) back to four in the succeeding months.

Equally odd is the fact that these extra hours were not drawn to the respondent’s attention until almost a year later in February 2017. At no stage while the complainant was still employed did she feel the need to draw these excess hours to the attention of her employer, or the need to either have them remunerated or approved, or some alternative arrangement put in place.

The primary onus falls on an employer both to manage, and record working hours and in this case the respondent failed utterly to do so, thereby exposing the company to a claim such as this.

Section 25 of the organisation of Working Time Act, 1997 requires an employer to

‘keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

In this case, subject to what follows below a complaint was being made which would have raised a prima facie case that the maximum forty-eight hour week was being significantly exceeded on a regular basis.

The other claim which arises in this case is a payment for working on Sundays (because, other than as a contributor to the overall weekly hours, time worked on Saturday does not attract any premium other than on an agreed basis).

The Organisation of Working Time Act 1997, at section 27 (4) also contains a provision, common in Irish employment statutes that, in general, a complaint must be made within six months of the date of the incident complained of.

It states that, an Adjudicator;

‘shall not entertain a complaint under this section if it is presented to the [WRC] after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

There is a provision for extending this for a further six months where reasonable cause can be established, but there was no submission on this point at the hearing.

The complaint was submitted to the WRC on March 6^th 2017.

This means that the cognisable period for the purpose of the complaint commences on September 6^th 2016. The complainant left her employment on September 29^th, therefore the cognisable period is that which falls between the two dates

I note that the respondent made a payment to the complainant of twenty days pay in respect of additional hours worked in the period.

While some claim may arise for the month of September in the absence of any reliable evidence on which to do so I cannot find sufficient grounds to make a finding in the complainant’s favour.

For the reasons set out above I do not uphold complaint CA-10047-001.

Excess hours, records, time limits