ADJ-00008654

Complainant

Respondent

Anonymised Parties

Business Development Executive

Convenience Food Providers

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

24/05/2017

The   Complainant herein joined the Respondent company in July of 2016 as a   business Development Executive. The Complainant’s normal place of work was in   Blanchardstown Corporate Park and the Complainant was expected to work - per   the Contract of Employment – for 40 hours per week over a five day period.

There was   an obligation in the Contract obliging the Complainant to co-operate with the   Company’s procedures for monitoring the hours of work being done. This was in   circumstances where a significant part of the Complainant’s week was spent on   the road, out of the primary base and visiting with customers, clients,   suppliers and distributors.

The   Complainant’s employment ended on the 14^th of April 2017. The   Complainant says she worked well in excess of her Contracted 40 hours per   week and well in excess of the weekly working hours provided by Statute.

S15 of the   Organisation of Working Time Act, 1997 reads:

“An Employer must not permit an   Employee to work in each period of seven days more than an average of 48   hours…”

The   Complainant was unrepresented at the hearing but nonetheless put forward her   case with clarity. The Complainant described her working hours and arduous   schedule. The Complainant was expected to make up to five site visits a day   for the purpose of promoting, demonstrating and selling merchandise to end   users. The Complainant underwent a comprehensive induction procedure and was   upskilled on the use of a computer and a tablet provided to her by her   Employer for the purpose of inputting information into the company’s   “Salesforce” programme which seems to be a bespoke computerised programme   operating in the workplace which allows employees generate all the relevant   information regarding visits, clients, orders and anything else which might   relate to the working day. The Complainant ultimately became overwhelmed by   this complicated process. She found it time consuming, whereas her Employer   was confident that it should be time saving. The workplace was very driven   and there was an expectation regarding being “Best in class”, with Key   performance indicators being used to test performance and generate bonus. The   Complainant was obliged to map out her weekly visits in advance of same. Her   territory included places as far afield as Portlaois and Wicklow. The   Complainant’s line Manager (CC) reviewed the Complainant’s work on a weekly   basis and these reviews gave very little comfort to the Complainant and she   always seemed to be behind her targets and was over complicating matters for   herself by being too detailed in summarising site visits and being tardy with   weekly reporting (per email from the said Line Manager dated 28^th   of November 2016). The Complainant says that in the end she felt obliged to   catch up and the only time to do this was in her own time and increasingly   she would come home and work late into the evenings, over the weekends or get   up early to complete tasks demanded of her. The Complainant gave evidence   that she would work as many as sixty hours a week to try and keep up.

The   Employer’s evidence was presented by CC the Complainant’s Manager. The   Employer provided me with outline Submissions which were opened to me. He was   of the view that the Complainant was too intent on doing things her own way   and not the way that the Company had trained her. So, for example the   Complainant was wasting time by doing return visits to customers where one   had not expected to be scheduled (per the prescribed rota) other than once   every eight weeks. Quite a lot of the evidence related to the manner in which  the Complainant was inputting information. The staff were expected to use   their Apps which had time saving mechanisms such as predictive text, whilst   the Complainant insisted on using her Laptop. It was confirmed though that   both pieces of equipment were provided by the Respondent and certain things   could only be done on the laptop. CC went through the documents that he had   and that largely related to the weekly reviews. The correspondence does show   that the Respondent witness reviewed the Complainant’s performance on a   weekly basis and that he was never satisfied with her work rate.

The tone   set was one of increasing pressure being applied to the Complainant. On the   second day of the hearing the Complainant provided me with a voluminous   number of screen shots which detailed the times that she would be generating   emails (detailing Orders and Quotes) destined to be sent to the Claimant, her   Distributors and the Customers (who would already have received a hard copy).   Whilst the Complainant accepted that these only pinpointed the time at which   the actual emails were sent, the Complainant stated that each email would be   proceeded by a significant amount of time spent working to get them ready.   The times were noted to range from anywhere from 8pm to 11pm and into the   small hours of the morning.

The Complainant   said that she did not document or complain about the amount of hours she had   to put into the job as she was trying to get the work done. The Complainant   never moved on from her probationary status so it might have been difficult   for her to feel a Grievance would be welcomed by her Employer. The   Complainant believed that the Respondent and CC in particular knew or ought   to have known that the Complainant was working well beyond the 8 hour day   that she was expected to work. The Complainant’s evidence was that she was   working up to 60 hours a week. Twelve more per week than is allowed by   Statute.

The   Complainant confirmed that she had been given training and that CC had   organised for her to have at least one extra session of training with S (a   colleague) but that she always seemed to fall far short of expectation. The   Complainant says she was not the only Employee that was having difficulty   meeting the requirements of the job, though this proposition was emphatically   denied by the Employer.

The   correspondence between the Complainant and CC demonstrate a mounting   frustration with the Complainant not getting reports in on time, failing to   follow “Best in class” processes and generally not meeting the high demands   set – albeit the Respondent says that the demands were being achieved by the   rest of the workforce.

I have   considered the schedule set and do consider it to be tight. The Complainant   was allowed about 4 hours face to face time with 5 separate clients spread   out over a wide geographic area and was allowed a further 1.5 hours to input   detail concerning what had happened at the meetings. At a minimum, the   Complainant must have been on the road for 2.5 hour per day. An 8 hour day   with no apparent breaks and no time allowed for traffic delays, client   delays, parking issues and the time taken to bring product, merchandise,   cooking utensils etc.to and from each client’s door.

The weekly   reports do acknowledge that the Complainant spoke with CC by telephone on a   weekly basis and the Complainant’s evidence is that she would have been   explaining to CC that she was finding the process time consuming and that he   knew or ought to have known that she was working up many more hours than her   Contract allowed for in order that she might get the job done. It is really   important to note that the Complainant was on probation and I would have to   accept that it was really difficult for her to express that she was   struggling. The Probation period was extended and ultimately the Employer   deemed her performance to be below the level required and her Employment was   terminated.

Neither   party opened up caselaw to me though as part of my general obligation to   inquire into the matters raised I have considered the case of IBM   Ireland -v Svobdoa DWT 18/2008 wherein the   Labour Court considered Section 15 and placed emphasis on the obligation on   the Employer not to permit an employee to work excessive hours. The   obligation created in the legislation was directed at preventing an employee   from working excessive hours and not merely at prohibiting an employer from   instructing or requiring an employee to work more than the permitted hours.   The Court indicated that the section imposes a form of strict liability on   the Employer as the Section does not provide that the Employer is only obliged   not to knowingly permit the   Employee from working excessive hours. Consequently, it is not a defence for   an employer to say that it did not know that the employee was working   excessive hours.

There was no   evidence that the workplace had a system whereby the Employees hours of work   were being continuously monitored with a view to ensuring that appropriate   corrective action could be taken in the event that an employee exceeded what   is acceptable under Statute. I was not shown any records which might have   demonstrated that the employer was ensuring that the provisions of the   Organisation of Working Time Act were being complied with – per Section 25   (1) of the said Act.

On balance,   I believe that the Employer knew or ought to have known that this Employee,   in an attempt to secure this employment, worked more than her Contracted   hours and more than the hours allowed under Statute. I accept the   Complainant’s evidence that on at least one date – 28^th of October   2016 – the Complainant’s line manager questioned why an email had been sent   by the Complainant at 3:51 in the morning and that he was at that point on   Notice of the Complainant working excessive hours. It is impossible that   Salesforce, which tracks the employees every move did not also disclose the   relevant information concerning this employee’s excessive working hours.

Accordingly,   I find the complaint to be well founded and that the Complainant’s Statutory   Rights were breached. I would direct that the Employer comply with Section 25   of the Organisation of Working Time Act 1997.

The Complainant did not keep an exact record of the number   of hours she worked over and above the hours she was allowed by Statute. I   note the Complainant was on a gross annual salary of €40,000.00. This works   out at about €19.00 to €20.00 per hour. The Complainant worked for about nine   months or 39 weeks. The Complainant is entitled to redress. I accept the   Complainant’s evidence that she worked excessive number of hours each of the   weeks. I find that it is just and equitable in all the circumstances to award   the Complainant the sum of €6,240.00 compensation per section 27 of the   Organisation of Working Time Act 1997.