Complainant

Respondent

Anonymised Parties

Sectional manager

Financial Institution

Representatives

Self-represented.

Respondent’s Legal and HR department.

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-00015988-001

24/11/2017

Complainant commenced employment with the respondent on 21/8/17 as Manager in the Supervisory Review and Evaluation Process, a section within the Financial Risk Division of the respondent on a salary of €6,833 per month.

She resigned five weeks into her employment on the 22 September due to what she described as her excessive workload, lengthy hours, the non- availability of rest periods and the failure of the respondent to deal with same.

She submitted her complaint submitted to the WRC on 24/11/2107.

The complainant states that she was contracted to work 7.25 hours per day, 36.2 hours per week, Monday – Friday, exclusive of lunch breaks.

Weekly working hours.

She states that she worked the following hours:

Monday 28 August, 8.30am-5.55pm

Tuesday 29 August, 8.30am- 7.30pm

Monday 4- Friday 8 September,8.30am -7pm

Monday 11- Thursday 14 September, 8.30am- 7pm

Friday   15 September ,8.30am -10.20pm

Saturday 16 September,10am-7.30pm.

From the 2nd to the 16th September, the complainant advises that she was struggling to keep up with an unrealistic pace of work. The complainant advises that the respondent should have anticipated the bulge in the workload as the respondent was working to meet a deadline of the 30 September- a date notified to the respondent in June 2017 by the European regulatory agency to whom this report had to be submitted. The complainant states that she was ‘lumped’ with work that should have been attended to in the period June 2017 – 21 August (her start date). She was advised by her line manager that she was on probation.

The complainant in her third week of employment found that she had to stay until about 7.30pm to complete sections of this report. The complainant states that she was capable of doing the work which she found to be interesting but not within the deadlines. The complainant states that the respondent knew that she had no prior experience or expertise in this area of work.

Her line manager had asked her what time could she start on Saturday 16 September. This resulted in her working an estimated 70 hours in, this, her fourth week of employment.

She was the primary carer for her elderly mother who had numerous health issues.

The complainant requested a meeting with her line manager and a HR executive on 18 September. Her request was ignored. She left the office feeling unwell due to work overload and lengthy hours and went to her GP who placed her on sick leave until the 22 September. She invoked the grievance procedure on 21 September in an attempt to deal with her excessive workload and lack of rest periods but she received no response.

The complainant resigned by email on the 22 September and submitted a hard copy of her resignation on the 27 September.

Managers in the respondent company did not clock in. The complainant advised that she did not record all dates but is confident that she worked in excess of 48 hours per week.

Rest periods

The complainant states that from Monday 4- Saturday 16 September she had only a 15-minute break at desk for the entirety of the day and not the statutory 30 minutes.

On 15 September she had to wait for 6 hours until 2.50 pm, before she could get a break. She asked about food at 9 pm on that date and advises that her manager was disinterested.

She was required to work until 8pm from Monday 11th September to Thursday 14th, to 10.20 pm on Friday 15 September with only a 15-minute break on each of these dates and from 10am to 7.20 on Saturday 16 September with no break. She was thus prevented from taking her statutory rest periods

The complainant advises that after working straight through for 4.5 hours she was immediately and frequently asked to take on another piece of work.

The respondent opened by saying that they regretted that the complainant had resigned and chose not to attempt a resolution of the matter. They advise that upon receipt of her request to invoke the grievance procedure on 21 September, two opportunities were offered and the complainant declined to confirm her availability for either date. Emails to this effect were submitted in evidence. The complainant’s resignation was received on 22 September.

Weekly working Hours.

Respondent submitted that they did not use clocking in records for managerial staff such as the complainant and that they did not possess records.

Respondent advises that the complainant worked normal hours in the first and second week of her employment and probably week 3 as there was no need for staff to work extra hours that week.

The respondent’s line manager gave evidence and estimated that she worked 60 hours in the 4th week, 11-16 September. There was no obligation on her to stay and she could have gone home. This project which generated extra hours for all members of staff was confined to one week in September and was not representative of the workload or working hours as a whole. The deadline applied to all staff.

She was offered a day off on Friday 22nd September.

The line manager denied that she ever advised the complainant that she was on probation. Complainant is not in a position to state that nothing was done on the project from June - September as she was not employed until August.

Rest periods.

The line manager advised that the complainant was not prevented from taking her breaks. The complainant was also told that food could be delivered to the workplace.

The respondent submitted an email sent to all staff on the 4/9/17 advising then that they should avail of statutory breaks and that if unable to do so should immediately inform the line manager.

Respondent disputes that the statement “you are on probation “was made to her.

I have considered the evidence of both parties and the relevant statutory provisions.

Weekly working hours.

The contract signed by the complainant accepts that work demands may occasionally require a working week more in excess of the 36.25 contracted hours. The complainant states she was required to work in in excess of 48 hours per week.

Her written submission attests that “I do not have a record of the 4-week average as I did not record this detail given that I could never have expected the cir5cumstances that would arise……. I am confident that that the average over this period was in excess of 48 hours although I am not able to prove the average amount.”

The law governing the duty of an employer in relation to weekly working hours is set out in section 15.1 of the Organisation of Working Time Act, 1997, which prescribes as follows:

                “15. — (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

                (a) 4 months, or

             (b) 6 months—"

The complainant was unable to give particulars for week 1, so her estimated hours, submitted to the hearing and in written evidence for her 4 weeks of employment are as follows:

36.5 hours in week 1,

41.55 hours in week 2,

50 hours in week 3,

63 hours in week 4.

This is a total of 191.05 hours which when averaged over the 4-week period does not exceed 48 hours.

Based on the evidence tendered and for reasons stated above, I do not find that a breach of section 15 (1) of the 1997 Act occurred.

Rest periods

Section 11 of the Organisation of Working Time Act, 1997 provides as follows;

“(1)        An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her to have a break of at least 15 minutes.

(2)          An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.”

The respondent is unable to demonstrate that they complied with these provisions. Records were not kept for employees in managerial positions. The respondent cannot confirm if the complainant took any of the statutory rest periods which she identified in her evidence as having been withheld from her. I conclude that the complainant did not secure these rest periods.

The Organisation of Working Time (Records) Prescribed Form and Exemptions) Regulations 2001 sets out the records which an employer should maintain. The respondent in the instant case does not meet the necessary conditions specified in section 5(1) (a) and (b) of the 2001 Regulations  for an exemption.

Where there is no clocking in records or other prescribed documentation, the responsibility lies with the respondent to prove that they complied with the provisions.

The Labour Court in the case of IBM V Svoboda, DWT 0818 dealt with the matter of an employee in a managerial position denied her rest periods and obliged to work in excess of an average of 48 hours. The facts are somewhat similar to the instant case but in the latter case the respondent made frequent if ineffective efforts to stop the employee from working additional hours. The respondent in this case advanced no evidence of vigilance in discouraging this complainant from foregoing her rest periods or proactively advising her to take them apart from sending a general email to staff advising them to take their breaks which the complainant states she did not receive. The complainant did resign very soon after her experience of the working hours and very soon after activating a grievance procedure.

Nonetheless because of the responsibility which lies with the respondent to implement the provisions of the Act and for the reasons stated above, I conclude that the respondent is in breach of section 12 of the 1997 Act. They let it happen without any intervention.

I do not uphold the complaint under section 15 (1) of the Organisation of Working Time Act, 1997.

I uphold the complaint under section 12(1) of the Organisation of Working Time Act, 1997.

I order the respondent to make a payment of €850 in compensation for a breach of the complainant’s statutory rights.

Failure to provide statutory rest periods; weekly working hours; no records