Complainant

Respondent

Anonymised Parties

A Sous Chef

A Hotel

Representatives

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016582-001

03/01/2018

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

CA-00016582-002

03/01/2018

The complainant commenced work with the respondent on June 20th 2017 and left in January 2018.

He was employed on a salary of €32,000 per year.

Although the complainant was appointed on the basis of an annual salary, and his contract said that his hours would be in line ‘with business needs’ he says these were regularly excessive and up to twenty hours per week in excess of forty.  

He raised this on a number of occasions and was given days off as paternity leave on one occasion by way of compensation.

Initially he raised this informally with his line manager and in due course he met the General Manager.

In responding to his complaint, the respondent, in its calculation of his hours, factored in time off on breaks which he never had the opportunity to avail of, due to the requirements of his role.

He was offered the option to revert to a lower, hourly paid role which he rejected and resigned.

Both complaints arise from these facts.

The respondent confirms the nature of the complainant’s annual salary and requirement for flexibility in the hours worked. The respondent does not make additional payments for hours worked over forty to employees on such contracts.

In December 2017 the complainant met the General Manager, which was the point at which Paternity leave was offered to the complainant on a good will basis.

There was a further meeting on January 5th, at which the offer was made to ‘drop down’ to an hourly paid role. At that stage, the respondent had calculated that his average working hours were 47.32 per week and that his annual salary was to compensate him for this.

However, the complainant rejected the offer and resigned on January 26th, 2018.

The respondent rejects the claim under the Payment of Wages Act, and says there have been no deductions from the complainant’s wages.

Regarding the complaint under the Organisation of Working Time Act, 1997, the complainant was well aware that he would be required to work ‘varied hours’ ‘to meet the demands of your position from time to time and the needs and patterns of the business.’

Further, the Act contains an exemption where working time ‘is determined by’ the employee himself.

On the basis of the submissions and evidence no case arises under the Payment of Wages Act, as there have been no deductions from wages and the complainant was on an ‘all-in’ salary.

The position under the Organisation of Working Time Act is different in that, if the complainant can establish that he regularly worked in excess of forty-eight hours, there will have been a breach of the Act, regardless of what his contract may say.

The complainant says that he regularly worked twenty hours per week more than the standard forty.

The respondent calculation has this within the forty-eight hour limit at 47.32. Within this they have included breaks of 2.5 hours which the complainant says he did not get.

On the other hand, he had smoke breaks which are not counted.

The truth is the respondent’s calculations are completely unreliable and somewhat suspect. There is no means of knowing whether the time spent smoking by the complainant exceeded breaks which he says were not taken.

The problem for the respondent is that the duty to maintain accurate records falls on it and the fact that they presented a calculation to the employee based on assumptions it had no means of verifying displays a lack of respect for both the law and the complainant.

There is a strong suspicion that those calculations were made for the sole purpose of bringing them within the level set in the Act.

While it is reasonable to require flexibility in an employee’s hours this should not be taken as carte blanche to subject him to consistent, excessive hours, which even by its own calculation is a total of almost thirty hours per month. This is disingenuous and much more than can be honestly or fairly embraced by the term ‘varied hours’.

I am satisfied on the basis of the available evidence, and the complainant himself was a very credible and honest witness, and that on the balance of probability the complainant’s hours regularly exceeded the permitted limit of forty-eight hours.

For the reasons set out above I do not uphold complaint CA-00016582-001 under the Payment of Wages Act, 1991 and it is dismissed. Complaint CA-00016582-002 Under the Organisation of Working Time Act, 1997 is upheld and I award the complainant €1,500.00.

Organisation of Working Time Act.