Complainant

Respondent

Anonymised Parties

A Store Manager

A Retail Pet Shop

Act

Complaint 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-00021502-001

31/08/2018

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

CA-00021886-001

17/09/2018

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

CA-00021886-002

17/09/2018

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

CA-00021886-003

17/09/2018

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

CA-00021886-004

17/09/2018

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

CA-00021886-005

17/09/2018

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

CA-00021886-006

17/09/2018

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

CA-00021886-007

17/09/2018

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

CA-00021886-008

17/09/2018

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

CA-00021886-009

17/09/2018

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

CA-00021886-010

17/09/2018

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

CA-00021886-011

17/09/2018

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

CA-00021886-012

17/09/2018

The Complainant was employed by the Respondent as a Store Manager from 20 November, 2017 until 15 September, 2018 when her employment was terminated. The Complainant claims that the Respondent has contravened the following provisions of the Organisation of Working Time Act 1997 in respect of her employment, namely: Section 12 in relation to rests and intervals at work, Section 13 in relation to weekly rest periods, Section 14 in relation to payment of the Sunday premium and Section 15 in relation to weekly working hours. The Complainant also claims that she was subjected to penalisation contrary to Section 26 for refusing to cooperate with a breach of the Organisation of Working Time Act 1997.

The Respondent disputes the claim that it has contravened the aforementioned provisions of the Organisation of Working Time Act 1997 in relation to the Complainant’s employment. The Respondent also disputes the claim that the Complainant was subjected to penalisation contrary to Section 26 of the Organisation of Working Time Act 1997.

The Complainant also claims that the Respondent has made an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid wages. The Respondent disputes the claim that it made an unlawful deduction from the Complainant’s wages during her period of employment.

CA-00021886-001 – Complaint under the Organisation of Working Time Act 1997

The Complainant submitted that she was obliged to work from 12 pm to 6 pm on Sundays in accordance with the terms of her contract of employment. The Complainant contends that she worked every second Sunday during her period of employment. The Complainant claims that she wasn’t paid any compensation for having to work on a Sunday and that this obligation was not taken into account in her annual salary. The Complainant claims that the Respondent has contravened Section 14 of the Act in relation to its failure to provide compensation for working on a Sunday.

CA-00021886-002 – Complaint under the Payment of Wages Act 1991

The Complainant contends that he was regularly required to work in excess of the 45 hours per week which was provided for in her contract of employment and that she was not paid in respect of the additional hours worked. The Complainant stated that she was required to attend the store to care for the animals on Bank Holidays and during the Christmas period when the store was closed and that she did not receive any additional remuneration for this work. The Complainant also contends that she was frequently contacted by her Manager, Mr. A, on her days off and was required to carry out work off site such as completing e-mails and compile details of sales figures.

The Complainant contends that she did not receive payment for any of the additional work which she carried and claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00021886-005 – Complaint under the Organisation of Working Time Act 1997

The Complainant contends that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to its failure to provide her with the required rest breaks. The Complainant claims that she very rarely took rest breaks during her working day as a result of the heavy workload. The Complainant claims that her Manager, Mr. A, was made aware on many occasions that she was not being afforded rest breaks and working additional hours as she felt that was the only way she could cope with the workload she was given. However, on such occasions Mr. A would comment that he was doing the same as a Store Manager, suggesting it was his expectation.

CA-00021886-006 – Complaint under the Organisation of Working Time Act 1997

The Complainant contends that the Respondent has contravened the provisions of Section 13 of the Organisation of Working Time Act 1997 in relation to her weekly rest periods.

The Complainant contends that she was instructed by her Manager, Mr. A, that she was required to have her work mobile phone switched on at all times even when off duty. The Complainant contends that Mr. A proceeded to constantly call her on her days off in relation to minor issues despite the fact that she had informed him on may occasions that it was her day off. The Complainant further contends that Mr. A would on occasion also contact her on her personal mobile phone. The Complainant submits that all communications outside working hours was in relation to minor matters which did not warrant breaching her statutory entitlements to weekly rest periods. The Complainant claims that this contact from Mr. A outside of her working hours disrupted her family and personal life regularly interfering with family activities including on one occasion her attendance at Mass.

The Complainant also claims that she was not provided with proper weekly rest periods on the following occasions, namely: when she was instructed to schedule her appraisal with Mr. A and the HR Manager on her day off and when she was instructed to visit the store and feed/attend animals on Bank Holidays when the store was closed.

CA-00021886-007 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent has contravened the provisions of Section 15 of the Organisation of Working Time Act 1997 in relation to her weekly working hours. The Complainant contends that she was regularly required to work in excess of 48 hours per week during her period of employment.

CA-00021502-001 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that she was subjected to penalisation within the meaning of Section 26(1) for refusing to cooperate with the Respondent in relation to contraventions of the Act.

The Complainant contends that she was required by the Respondent to be contactable at all times on her work mobile phone which was in contravention of the provisions of Section 13 of the Act. The Complainant also contends that she was required by her Manager to alter and falsify records when completing the time sheets in respect of the hours she worked for herself and other staff members. The Complainant felt uncomfortable in doing this as it was against company policy and would be an untrue reflection of the hours worked by staff. However, when the Complainant raised this issue with her Manager, Mr. A, he stated that: “I always looked after my staff” and when the Complainant stated that CCTV would not corroborate the hours logged he stated: “do you think anyone would check the cameras”.

The Complainant claims that she was subjected to penalisation by her Manager, Mr. A, by way of intimidation, undue scrutiny and supervision as result of raising concerns in relation to the aforementioned matters.

CA-00021886-001 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the claim that it contravened the provisions of Section 14 of the Act.

The Respondent contends that the obligation to work on a Sunday has been taken into account in the determination of the Complainant’s annual salary. The Respondent contends that the Complainant’s working week was from Monday to Sunday and that she was normally required to work 5 days within this period. The Respondent submits that the Complainant’s working hours were from 12 pm to 6 pm whenever she was required to work on a Sunday and that she only worked on 10 Sundays during the period of her employment i.e. approx. 45 weeks.

CA-00021886-002 – Complaint under the Payment of Wages Act 1991

The Respondent disputes the claim that it has made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.

The Respondent submits that the Complainant’s contract provided that she was required to work 5 days per week and not more than 45 hours per week in respect of which she was paid an annual salary of €33,000 which had been agreed between the parties. The Respondent denies that the Complainant was required to work in excess of her contractual hours or that she was required to attend work on her days off or when the store was closed in order to care for the animals. The Respondent submits that there was a number of weeks during the Complainant’s employment where she was not required to work 45 hours per week and that there was not any deduction taken from her wages.

CA-00021886-005 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the Complainant’s claim that it contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to the provision of rest breaks.

The Respondent submits that the Complainant was afforded her rest breaks in accordance with the requirements of Section 12 of the Act. The Respondent submitted copies of time sheets completed by the Complainant in relation to her working hours and contends that these records clearly demonstrate that the Complainant was afforded her statutory rest break entitlements.

CA-00021886-006 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the Complainant’s claim that it contravened the provisions of Section 13 of the Organisation of Working Time Act 1997 in relation to the provision of weekly rest periods.

The Respondent disputes the Complainant’s contention that she was required to be contactable on her work mobile phone at all times. The Respondent submits that the Complainant was instructed to hand over her work mobile phone to the Assistant Store Manager on her days off and that there was no compulsion on her to take calls when she was not working.

CA-00021886-007 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the Complainant’s claim that it contravened the provisions of Section 15 of the Organisation of Working Time Act 1997 in relation to her weekly working hours.

The Respondent submits that the Complainant’s contract of employment provided that she was required to work 5 days per week and not more than 45 hours per week. The Respondent disputes the Complainant’s contention that she was regularly required to work in excess of 48 hours per week and contends that there was only three weeks during her period of employment where she worked in excess of 48 hours.

CA-00021502-001 – Complaint under the Organisation of Working Time Act 1997

The Respondent disputes the Complainant’s claim that she was subjected to penalisation contrary to Section 26(1) of the Act by refusing to cooperate with a contravention of the Act.

The Respondent denies that the Complainant was required to commit any contraventions of the Act in the discharge of her role as Store Manager. The Respondent contends that the Complainant was fully aware of the internal grievance procedures and that she did not raise a formal grievance in relation to any of the alleged instances of penalisation during her period of employment.

CA-00021886-001 – Complaint under the Organisation of Working Time Act 1997

The Complainant’s employment was terminated on 15 September, 2018 and she referred her complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 17 September, 2018. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 18 March, 2018 to 15 September, 2018.

Section 14 of the Act provides that:

“14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated.

The Labour Court held in the case of Viking Security and Tomas Valent DWT1489 that “In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernible from the contract of employment or from the circumstances surrounding its conclusion.” The Labour Court also held in the case of the Park House Hotel Limited and Edyta Wlodarczyk DWT1624 that “The Court finds that a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken, on its own, as evidence of compliance with Section 14(1) of the Act. The Court finds that in the absence of clear evidence as to how such an assertion was given effect in the pay arrangements applied to the Appellant it has jurisdiction under the Act to hear this matter.”

It was common case that the Complainant was required to work on a Sunday during her period of employment albeit that there was a dispute between the parties in relation to the frequency and number of Sundays that the Complainant actually worked during her period of employment. The Complainant submits that she was required to work every second Sunday and was not paid a premium for so working. She further submits that the requirement to work on Sunday was not otherwise taken into account in the determination of her pay. The Respondent submits that the Complainant's contract of employment provides that her working week was from Monday to Sunday and that she was normally required to work 5 days within this period. The Respondent submits that the Complainant worked a total of 10 Sundays during her period of employment. It further submits that her annual salary amounted to €33,000 which it submits contained an element of compensation for the obligation to work on Sunday.

I note that the provisions of the Complainant’s contract of employment which are relevant to this specific complaint provide that: “Your annual salary is €33,000, with the opportunity to earn an additional €6,000 per annum with your incentive scheme, payable annually in September if all business, store sales and grooming targets are met” and “The working week is from Monday to Sunday. You will normally be required to work 5 days within this period with a 1 hour lunch break each day, generally totalling not more than 45 hours”.

I find that the combination of the Contract of Employment and the Complainant's rate of pay is not sufficient in themselves to meet the burden of proving that the requirement to work on Sunday has been taken into consideration in the determination of her rate of pay. I am satisfied that the Respondent has failed to adduce any evidence of a relationship between the requirement to work on Sunday and the rate of pay. It was simply submitted that there was a self-evident relationship between them. I do not accept that there is a relationship between them or that it is self-evident.

Having regard to the totality of the evidence adduced, I am not satisfied that the Respondent has demonstrated that the annual salary provided for in the Complainant’s contract of employment was inclusive of any element of compensation for working on a Sunday. In the circumstances, I am not satisfied that the Respondent has discharged the burden of proving that the requirement to work on Sunday has been taken into consideration in the determination of his rate of pay.   Accordingly, I find that the Respondent has contravened Section 14 of the Act in the present case and that the complaint is well founded.

CA-00021886-002 – Complaint under the Payment of Wages Act 1991

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, in relation to an employee, means any sums payable to the employee by the                 employer in connection with his employment, including—

(a)    any fee, bonus or commission, or any holiday, sick or maternity pay, or any            

other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)    any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(6) of the Act provides: —

“(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The instant claim was submitted to the Director General of the Workplace Relations Commission on 17 September, 2018 and therefore, only contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 18 March, 2016 to 17 September, 2018 are cognisable for the purpose of obtaining redress.

The Complainant contends that she did not receive payment for any of the additional work which she carried out in excess of the 45 hours per week which was provided for in her contract of employment and claims that this constitutes and unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act 1991.

The Labour Court has held in the case of Foroige -v- Kieran O’ConnellPWD178 that: “In Dunnes Stores (Cornelscourt) -v- Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant ….. Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction”.

Therefore, the first issue that I must decide is whether the claimed unlawful deduction of wages in respect of additional unpaid hours worked during the cognisable period was in fact properly payable to the Complainant.

There was a dispute between the parties in relation to the number of hours per week that the Complainant actually worked during her period of employment. The Complainant adduced evidence that she regularly worked in excess of 45 hours per week and contends that she that she was not paid in respect of the additional hours worked. The Complainant also contends that she was frequently contacted by her Manager, Mr. A, on her days off and was required to carry out work off site such as completing e-mails and compile details of sales figures.

The Respondent denies that the Complainant was required to work in excess of her contractual hours or that she was required to attend work on her days off or when the store was closed in order to care for the animals. The Respondent submits that there was a number of weeks during the Complainant’s employment where she was not required to work 45 hours per week and that there was not any deduction taken from her wages.

The provisions of the Complainant’s contract of employment which are relevant to this specific complaint provide that: “Your annual salary is €33,000, with the opportunity to earn an additional €6,000 per annum with your incentive scheme, payable annually in September if all business, store sales and grooming targets are met” and “The working week is from Monday to Sunday. You will normally be required to work 5 days within this period with a 1 hour lunch break each day, generally totalling not more than 45 hours”.

The Respondent submitted in evidence copies of the time sheets in respect of work hours which were completed by the Complainant during her period of employment. I have examined these records and it is clear from the information contained therein that the Complainant did not work in excess of her contractual weekly hours of 45 per week for the vast majority of weeks during her period of employment. I note that there were only three weeks during this period where the Complainant is recorded as having worked in excess of her weekly contractual hours. The Complainant accepts that she completed these time sheets during her period of employment. However, she contends that she was pressurised by her Manager, Mr. A, to falsify the records and therefore, they do not accurately reflect the hours she actually worked. The Respondent vehemently denies the allegation that the records were falsified or that there was any pressure applied on the Complainant her Manager to do so.

Having regard to the totality of the evidence adduced, I have found the Respondent’s evidence on this matter to be more compelling and I cannot accept the Complainant’s contention that she was pressurised into falsifying time sheets by her Manager or that these records do not represent an accurate account of the hours she worked during her period of employment. I have found the Complainant’s evidence on this matter to be unconvincing and lacking in specific detail and clarity. It is clear that the Complainant had a difficult working relationship with Mr. A and that he had raised issues on a number of occasions in relation to the performance of the store under her management. However, I note that the first occasion the Complainant raised any issue in relation to the alleged falsification of records was in her resignation e-mail on 15 August, 2018 and that she failed to invoke a formal grievance in relation to this matter through the Respondent’s internal Grievance Procedures at any stage during her period of employment. I am also satisfied that the Complainant was unable to provide any clarification or cogent evidence in relation to the alleged number of unpaid additional hours or the dates upon which these hours were worked. In the circumstances, I find that the Complainant has failed to adduce any significant evidence to support her claim that she had accrued a significant number of hours for which she did not receive payment during her period of employment but rather she has essentially relied upon supposition and assertion, unsupported by evidence, in support of these claims.

In the circumstances, I find that the unpaid wages which the Complainant is claiming were accrued during the cognisable period were not properly payable to her within the meaning of Section 5(6) of the Act. Therefore, the question of compliance with subsections (1) and (2) of Section 5 of the Act do not arise for consideration. Accordingly, I find that the complaint is not well founded.

CA-00021886-005 – Complaint under the Organisation of Working Time Act 1997

The Complainant has claimed that she was not afforded her statutory entitlements to rests and intervals at work as provided for in Section 12 of the Act. Section 12 provides as follows:

12.— (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 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; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Section 25(4) provides as follows: -

“(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The Labour Court in the case of Jakonis Antanas -v- Nolan Transport DWT1117 set out the requirements in relation to the evidential burden of proof that applies in establishing whether or not a contravention of the Act has occurred. It held that: “This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”.

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.”

The Respondent produced records of the time sheets in the prescribed form completed by the Complainant during her period of employment which indicate that she did in fact take her rest breaks. The Complainant accepts that she completed these time sheets during her period of employment. However, she contends that she was pressurised by her Manager, Mr. A, to falsify the records and therefore, they do not accurately reflect the hours she actually worked. The Respondent vehemently denies the allegation that the records were falsified or that there was any pressure applied on the Complainant her Manager to do so.

As I have already found above, I have found the Respondent’s evidence in relation to the alleged falsification of these records to be more compelling and I do not accept the Complainant’s contention that she was pressurised into falsifying time sheets by her Manager or that these records do not represent an accurate account of the rest breaks she was afforded during her period of employment. In the circumstances, I find that the Respondent has satisfy the legal burden of proving, on the balance of probabilities, that the provisions of Section 12 of the Act were not contravened in the manner alleged by the Complainant. Accordingly, I find that the complaint is not well founded.

CA-00021886-006 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent has contravened the provisions of Section 13 of the Organisation of Working Time Act 1997 in relation to the provision of weekly rest periods.

Section 13 of the Organisation of Working Time Act 1997 provides as follows:

“(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.”

The Complainant contends that she was required to have her work mobile phone switched on at all times even when off duty and that she was regularly contacted by her Manager about work-related matters while she was off duty. The Complainant contends that the requirement to be contactable on her work mobile phone while on her rest periods constitutes a breach of the obligations required by Section 13 of the Act.

In the case of Stobart (Ireland) Driver Services Limited -v- David Burke & others DWT1437 the Labour Court examined the question as to whether or not the requirement to telephone an employer during a rest period brings an employee within the statutory definition of “working time” and/or if it amounts to an interruption in the weekly rest period. The Labour Court held that: “there were two aspects to this statutory requirement: - (i) the employee must “be at his or her place of work or at his employer’s disposal and (ii) be carrying on or performing the activities or duties of his or her work.” The Court formed the view that the requirement to make one or more telephone calls on pain of disciplinary action for failure to do so while on a break means an employee’s time is not at his own disposal. It held that so long as there is a contractual obligation to make a telephone call during the rest period there is a period of time that is not absolutely at the employee’s disposal and therefore the Court found that the requirement, on pain of disciplinary sanction, to telephone the employer during the weekly rest period means that the Complainant was at his employer’s disposal for that period of time.

Secondly, it noted the Respondent’s confirmation that disciplinary sanctions would be taken against any employee who failed to make such a telephone call while on their weekly rest period as they would be deemed to have failed to commence work at the scheduled starting time. Therefore, the Court held that, as the Complainants were contractually or duty bound to telephone to establish the starting time of their next shift, it was self- evident that the Complainants, when making the mandatory telephone calls, were carrying on or performing the duties of their work.

Accordingly, the Court determined that the complaint was well-founded as the complainants were not in receipt of a weekly uninterrupted break under the provisions of Section 13 of the Act.”

In considering this matter, I note that the Respondent produced records of telephone calls between the Complainant and her Manager which occurred outside of her normal contractual daily working hours. These records include several telephone calls and text messages which occurred later than 9 pm and one such call was had a duration of 10:16 minutes. I have also taken cognisance of an e-mail which the Complainant’s Manager issued to the Respondent’s Store Managers on 17 March, 2018 which stated that “I expect every Store Manager to have their phone switches on at all times, unless you are on holidays and have handed the phone over to your assistant manager, it is you responsibility to have your phone on you at all times … ”. The Respondent disputes the Complainant’s contention that she was required to be contactable on her work mobile phone at all times and submits that she was instructed to hand over her work mobile phone to the Assistant Store Manager on her days off and that there was no compulsion on her to take calls when she was not working. I am satisfied that the Respondent’s policy in relation to accessibility on work mobile phones was not made clear to the Complainant and that it was not unreasonable for her in light of the direction issued by her Manager to assume that she was required to be contactable out of hours and during her weekly rest periods. Having regard to the evidence adduced, I find, on the balance of probabilities, that the Complainant was contacted by her Manager on a significant number of occasions while on her weekly rest periods during the cognisable period of employment.

I am satisfied that the principles enunciated by the Labour Court in the Stobart case can equally be applied to the circumstances of the present complaint. In this regard, I am satisfied that the Complainant was required to be contactable by her Manager while on her weekly rest period and that she was in effect at her employer’s disposal for that period of time. In the circumstances, I find that the requirement to be contactable by her Manager during the periods she was off duty amounts to an interruption in the Complainant’s weekly rest period. Having regard to the foregoing, I find that the Respondent has contravened the provisions of Section 13 of the Act and that the complaint is well founded.

CA-00021886-007 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent has contravened the provisions of Section 15 of the Organisation of Working Time Act 1997 in relation to her weekly working hours. The Complainant contends that she was regularly required to work in excess of 48 hours per week during her period of employment.

Section 15 of the Act provides:

“(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 …”

Having reviewed the records submitted by the Respondent, I am satisfied that the Complainant did not work in excess of the weekly maximum number of hours permitted by the legislation during his period of employment. Accordingly, I find that this complaint is not well founded.

CA-00021502-001 – Complaint under the Organisation of Working Time Act 1997

Section 26 of the Organisation of Working Time Act provides as follows:

“(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.”

This section in the Act provides that an employee who refuses to cooperate with an employer in breaching the Act shall not be penalised by the employer. In order to make out her complaint of penalisation it is necessary for the Complainant to relate the alleged adverse treatment to her opposing an act which is unlawful under the Act.

In the case of University College Cork v Keohane WTC/01/26 DWT0147 the Labour Court stated that: "In order to make out her complaint of penalisation it is necessary for the complainant to establish a causal link between her activities in seeking to have section 19 of the Act applied by the respondent and some detriment which she suffered in her employment. Such a link can be established by reference to particular facts or by inference from all of the surrounding circumstances. The activities alleged to have given rise to the detriment suffered must, however, relate to the claimant having opposed an act which is unlawful under the Act of 1997."

The Complainant claims that she was subjected to penalisation within the meaning of Section 26(1) for refusing to cooperate with the Respondent in relation to contraventions of the Act. The alleged contraventions of the Act in respect of which the Complainant contends that she attempted to oppose relate to (1) the requirement to falsify records when completing the time sheets in respect of the hours she worked for herself and other staff members and (2) the requirement to be contactable at all times on her work mobile phone.

In relation to point 1), I have already found above that I do not accept the Complainant’s contention that she was pressurised into falsifying time sheets by her Manager or that these records do not represent an accurate account of the hours she worked during her period of employment. Accordingly, I find that the Respondent did not commit an unlawful act under the Act in relation to this matter and therefore it cannot be relied upon by the Complainant in seeking to establish a claim of penalisation contrary to Section 26(1).

In relation to point 2), I have already found above that the Respondent contravened the provisions of Section 13 of the Act in relation to the provision of weekly rest periods to the Complainant. In order to make out her complaint of penalisation it is necessary for the Complainant to establish a causal link between her activities in seeking to oppose the Respondent from committing a contravention of Section of the Act and some detriment which she suffered in her employment.

In considering this matter, I am satisfied that the Complainant did not adduce any evidence from which I could reasonably conclude that she sought to complain or raise any grievance during her period of employment in relation to her being contacted on her work mobile phone during her weekly rest periods. In coming to this conclusion, I note that there were several meetings and numerous e-mails exchanged between the Complainant, her Manager, Mr. A, and the HR Manager during her period of employment in relation to issues that had arisen concerning the performance and management of the store which she was managing. I am satisfied that the Complainant had ample opportunity to raise the issue in relation to the interruption of her weekly rest periods with management and seek to have it addressed during her employment. However, I have not been presented with any evidence to establish that the Complainant sought to oppose or raise any complaint in relation to the matters which gave rise to the contravention of Section 13 of the Act prior to the termination of her employment.

In the circumstances, I find that the Complainant has failed to establish that any alleged adverse treatment by Mr. A occurred as a result of her opposing an act which is unlawful under the Act. Accordingly, I find that the complaint of penalisation contrary to Section 26(1) of the Act cannot succeed and that the complaint is not well founded.

CA-00021886-001 – Complaint under the Organisation of Working Time Act 1997

I find that the complaint made pursuant to Section 14 of the Act is well founded, and in accordance with the provisions of Section 27 of the Act, I order that the Respondent should pay the Complainant the sum of €750.00 in compensation for the effects of the contravention of Section 14 of the Act.

CA-00021886-002 – Complaint under the Payment of Wages Act 1991

I find that the Respondent did not make an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the complaint is not well founded.

CA-00021886-005 – Complaint under the Organisation of Working Time Act 1997

I find that the Respondent did not contravene the provisions of Section 12 of the Act and that the complaint is not well founded.

CA-00021886-006 – Complaint under the Organisation of Working Time Act 1997

I find that the complaint made pursuant to Section 13 of the Act is well founded, and in accordance with the provisions of Section 27 of the Act, I order that the Respondent should pay the Complainant the sum of €1,500.00 in compensation for the effects of the contravention of Section 13 of the Act.

CA-00021886-007 – Complaint under the Organisation of Working Time Act 1997

I find that the Respondent did not contravene the provisions of Section 15 of the Act and that the complaint is not well founded.

CA-00021502-001 – Complaint under the Organisation of Working Time Act 1997

I find that the Complainant was not subjected to penalisation contrary to Section 26(1) of the Act and that the complaint is not well founded.

Payment of Wages Act 1991 – Section 5 – Unlawful deduction – Organisation of Working Time Act 1997 – Section 12 – Rest breaks – Section 13 – Weekly rest periods - Section 14 – Sunday premium – Section 15 – Weekly working hours – Section 26 - Penalisation