Complainant

Respondent

Anonymised Parties

A Chief Risk Officer

A Bank

Representatives

Mr Richard Grogan, Solicitor

Ms Mairéad McKenna, BL

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-00028674-001

22/05/2019

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

CA-00028674-002

22/05/2019

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

CA-00028674-003

22/05/2019

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

CA-00028674-004

22/05/2019

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

CA-00028674-005

22/05/2019

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

CA-00028674-006

22/05/2019

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

CA-00028674-007

22/05/2019

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

CA-00028674-008

22/05/2019

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

CA-00028674-009

22/05/2019

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

CA-00028674-010

22/05/2019

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

CA-00028674-011

22/05/2019

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

CA-00028674-012

22/05/2019

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

CA-00028674-013

22/05/2019

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

CA-00028674-014

22/05/2019

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

CA-00028674-015

22/05/2019

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

CA-00028674-016

22/05/2019

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

CA-00028674-017

22/05/2019

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

CA-00028674-018

22/05/2019

In his submission to the WRC, Mr Grogan described the complainant as “a Senior Executive earning a basic salary of €177,000 per annum with bonuses of up to 40% and other benefits which will be set out.”   Correspondence included in the respondent’s book of papers shows that the complainant commenced employment with the bank in 1989 and, following a number promotions, he was appointed to the position of Chief Risk Officer in June 2018. In this capacity, he is a member of the bank’s senior management team, reporting to the Chief Executive Officer.

These complaints are concerned with alleged breaches of the Organisation of Working Time Act 1997 (the “OWT Act”), in respect of the complainant’s entitlement to breaks, a Sunday premium and public holiday pay. They are also concerned with a claim that he worked excessive hours and that he was not provided with information about his daily start and finish times.

An issue arises regarding the reference period within which these complaints may be considered.   Section 41(6) of the Workplace Relations Act 2015 (the “2015 Act”) provides that:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complainant has been absent due to illness since December 4th 2018 and on the date of the hearing on October 16th 2019, he had not returned to work. It is apparent therefore, that in the six months before these complaints were submitted to the WRC on May 22nd 2019, the complainant was at work from Friday, November 23rd to Monday, December 3rd. In the form he submitted to the WRC, for the complaints numbered CA-00028674-001 to 006 above, Mr Grogan stated, “will be applying to extend time to 12 months.”

Section 41(8) of the Workplace Relations Act 2015 provides that:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than six months after such expiration) as the case may be, if he or she is satisfied that the failure to present the case or refer the dispute within that period was due to reasonable cause.”

In the complainant’s lengthy application to the WRC, no reasonable cause is given for his request to extend the time limit beyond six months. At the hearing, Mr Grogan gave no explanation regarding the complainant’s failure to present his complaints within the six months’ time limit; rather, he submitted that I should “set aside Irish legislation” and, in the interest of “the principles of equivalence and effectiveness,” I should extend the time limit beyond the six months prescribed in the 2015 Act.   He suggested that a more appropriate time limit is six years, in line with the statute of limitations that applies in civil actions.

In support of this argument, Mr Grogan referred to the case of the Chief Constable of the Police Service of Northern Ireland and the Northern Ireland Policing Board and Alexander Agnew and Others, [2019] NICA 32 (the “PSNI case”). This concerned an appeal from the Industrial Tribunal in Northern Ireland to the Court of Appeal, regarding the failure of the Police Service, from the date of the enactment of the Working Time Regulations in 1998, to include overtime in the calculation of holiday pay for police officers and civilian employees. The judgement runs to 149 paragraphs over 38 pages and Mr Grogan did not identify the part of the judgement that is relevant to this complainant’s failure to submit his complaint within the six months’ time limit.

In the PSNI case, the complaints presented to the Industrial Tribunal in 2015 and 2016 were under Articles 45 and 55 of the Employment Rights (Northern Ireland) Order 1996 that there had been unlawful deductions from their pay and, in the alternative, under Regulation 30 of the Working Time Regulations (Northern Ireland) 1998 and Regulation 43 of the Working Time Regulations (Northern Ireland) 2016, that there were underpayments of holiday pay. For convenience, the Employment Rights Order is referred to as the “ERO” and the Working Time Regulations are referred to as the “WTRs.”

The ruling of the three judges in this appeal includes an analysis of the principles and case law on the application of EU and domestic law, particularly in relation to Directive 1993/104/EC on the organisation of working time (the “Working Time Directive”).   At paragraph 83, delivering the judgement of the Court of Appeal, Stephens LJ made this observation:

“The Tribunal’s view was that to secure equivalence between the ERO and the WTRs (NI) words needed to be and should be read into the latter to enable the Tribunal to consider underpayments of holiday pay under the WTRs (NI) if they are part of a series of underpayments. Accordingly, the Tribunal read in words at the end of Regulation 30(2)(a) WTR (NI) 1998 and Regulation 43(2)(a) WTR (NI) 2016.”

The effect of the words “read in” by the Tribunal is to provide that a complaint may be considered if it is presented before the end of three months beginning with the date on which it is alleged the payment should have been made, or if it is presented in respect of a series of payments of wages from which deductions were made, before the end of the period of three months beginning with the date on which it is alleged that the last in the series of such payments was made. (The underlined words were added by the Tribunal).

At paragraph 85, Stephens LJ said that he and his co-judges agreed with the Appellants, (the employers) that the insertion of the words disapplied the application of the time limits in the WTRs but he said that they decided “that this was done to achieve equivalence with the ERO and was entirely in conformity with the relevant legal principles.”

It is clear therefore, that the principle of equivalence being addressed in this case, is the equivalence between the ERO and the WTRs. When the Industrial Tribunal added in the words underlined above to the WTRs, they did so to create equivalence between two aspects of employment law, one which derived from domestic law (the ERO) and the other from European law (the WTRs).   I am satisfied that the objective of the Tribunal, supported by the Court of Appeal, was not to create equivalence between civil law and employment law, and it is my view that there is no substance to the complainant’s submission that the PSNI case establishes a precedent for so doing.

I agree with Ms McKenna that the established test for deciding if an extension should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338.   Here, the test for reasonable cause for extending the time limit to 12 months is clearly set out:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd.   In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he would have initiated the claim in time.”

Ms McKenna also referred to the case of A Bank v A Worker, EDA 104 where the Labour Court held that to accede to an application for an extension of time beyond the six-month time limit, the “irreducible minimum requirement” is that a claimant must demonstrate that there were reasons which both explained the delay and afford an excuse for the delay. I find that, in the case under consideration, on both counts, this minimum requirement has not been met.

I have found that no reasonable cause has been presented to explain why the complainant submitted allegations of breaches of the OWT Act outside the time limit of six months. I decide therefore, that I have jurisdiction to consider his complaints regarding breaches in the six months preceding the date that his complaint was submitted to the WRC on May 22nd 2019. As the complainant has been absent since December 4th 2018, the period I can investigate is from November 23rd to December 3rd 2018.

CA-00028674-002

The complainant alleges that there was a breach of section 12 of the OWT Act because he claims that he was required to work for more than four hours and 30 minutes without getting a break of 15 minutes or that he was required to work for more than six hours without getting a break of 30 minutes and that the respondent failed to keep records as required under section 25 of the Act.

CA-00028674-003

The complainant alleges that he did not get a weekly rest break of at least 24 hours as required by section 13 of the OWT Act and that the respondent failed to keep records as required under section 25 of the Act.

CA-00028674-004

The complainant alleges that, in breach of section 14 of the OWT Act, he was not compensated for working on a Sunday.

CA-00028674-005

In breach of section 15 of the OWT Act, the complainant alleges that he was required to work excessive hours and that his employer “did not exercise due diligence to ensure maximum hours not breached.”

CA-00028674-006

In breach of section 17 of the OWT Act, the complainant alleges that he was not notified in advance of his start and finish times.

CA-00028674-007 - 012

The complainant alleges that, in breach of section 21 of the OWT Act, he did not receive his entitlement to payment for the following six public holidays:

December 24th 2018

December 25th 2018

January 1st 2019

March 18th 2019

April 22nd 2019

May 6th 2019

In respect of each of these complaints, CA-00028674-007 – 012, on the complaint form, Mr Grogan stated, “see DWT 0611.” This refers to the determination of the Labour Court in the case of Thermo King and Pat Kenny in May 2006, where the chairman, Mr Duffy, upheld the decision of the Rights Commissioner to the effect that, Mr Kenny, who had been paid his wages while he absent from work due to illness, was entitled to an additional day’s pay in respect of each of the public holidays that fell during his absence.

At the hearing, Mr Grogan did not dispute the fact that, after these complaints were submitted, the respondent paid the complainant his entitlement to pay for the first three of the six public holidays listed above, in line with the determination of the Labour Court in the Thermo King case. He is seeking compensation because the respondent did not make each of the payments when they were due.

Breach of Section 25 of the OWT Act

The complaints under sections 12 and 13 of the OWT Act concern an allegation that the respondent failed to keep working time records as required under section 25 of the Act. Ms McKenna said that on June 18th 2019, following a data access request, the complainant’s solicitor was provided with extensive records of his working time. She said that the records demonstrate that the employer had complied with their obligations under the OWT Act. For the purpose of the complaints under consideration here, a copy of the records for the period in scope, from November 23rd to December 3rd 2019 were submitted in evidence at the hearing.   These show that the complainant did not work any hours on Friday, November 23rd 2018. For the six days before he went out sick on December 4th, he worked the following hours:

Monday November 26th:   From 7.25 until 18.24.

Tuesday, November 27th: From 7.27 until 20.42.

Wednesday, November 28th: From 7.24 until 18.15.

Thursday, November 29th: From 8.19 until 17.07.

Friday, November 30th: From 13.46 until 21.40.

Monday, December 3rd: From 8.00 until 17.17.

CA-00028674-002 – 003

The respondent’s case is that the time and attendance record shows that, for the period in question, from Monday, November 26th until Monday, December 3rd, the complainant availed of the rest periods to which he was entitled and these complaints must fail.

CA-00028674-004

The complainant alleges that, in breach of section 14 of the OWT Act, he was not compensated for working on a Sunday. For the respondent, Ms McKenna said that, during the period in question, from November 23rd until December 3rd 2018, the working time record shows that the complainant did not do any work on the Sundays that fell on November 25th and December 2nd.

CA-00028674-005

In breach of section 15 of the OWT Act, the complainant alleges that he was required to work excessive hours. The respondent’s case is that the working time record shows that the complainant did not in work excess of 48 hours per week during the period from November 23rd until December 3rd 2018.

CA-00028674-006

In breach of section 17 of the OWT Act, the complainant alleges that he was not notified in advance of his start and finish times. In their book of documents submitted at the hearing, the respondent submitted a copy of the company handbook which was issued to the complainant when he commenced employment in 1989. Under the heading, “Hours of Work and Overtime Policy,” this document provides as follows:

“The Company’s standard working week is 35 hours from 9.00am to 5.00pm, Monday to Friday, with one hour unpaid break for lunch.”  

CA-00028674-007 - 012

These complaints are concerned with an allegation of a breach of section 21 of the OWT Act regarding the complainant’s entitlement to pay for the six public holidays that fell between December 24th 2018 and May 6th 2019. The complainant was absent due to illness for the entire time during which these public holidays fell.

The respondent’s case is that, in accordance with section 21(4) of the OWT Act, an employee is entitled to an additional day’s pay for a public holiday, provide that he or she “has worked for the employer concerned at least 40 hours during the period of five weeks ending on the day before the public holiday.” On this basis, the respondent argues that the complainant was entitled to an additional day’s pay only for the three public holidays that fell on December 25th and 26th 2018 and January 1st 2019.   The complainant has been paid an additional day’s pay for each of these days and it is the respondent’s case therefore, that these complaints have been resolved.

Reliance on Section 3(c) of the OWT Act: The Complainant Determines His Own Working Hours

It is the respondent’s case that, as a member of the Executive Management Team in the bank, the complainant is a senior manager whose remuneration and benefits reflect that position. He is responsible for setting his own working hours and therefore, any issue regarding breaks or excessive working hours is not the responsibility of the respondent.

In this regard, the respondent relies on section 3(c) of the OWT which provides that Part II of the Act, which covers minimum rest periods and other matters relating to working time, shall not apply to,

“a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.”

As the bank’s Chief Risk Officer, Ms McKenna argued that the complainant sets his own working hours.   It is at his discretion when he checks in with his colleagues, and the way he does so, for example, by telephone, email or in person, and if he attends in person, he can consult with his colleagues regarding the time and date of the meeting. It is also the complainant’s prerogative that he can determine the time at which he starts and finishes work on any given working day.   He carries out his role on an autonomous basis. If he had concerns about his hours of work, Ms McKenna argued that this was an issue which he permitted to develop and which was within his power to resolve.

Breach of Section 25 of the OWT Act

Section 25 of the OWT Act is concerned with the keeping of a record of hours worked by employees and provides as follows:

(1) An employer shall 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.

The respondent’s evidence is that an electronic time and attendance system is installed in the complainant’s place of work which records his daily start and finish times.   I understand that details of the complainant’s hours of work were provided to the complainant as a result of a data access request, and, at the hearing, Mr Grogan accepted that this record exists.   Details were submitted in evidence of the start and finish times, the breaks and the hours worked by the complaint during the period relevant to this complaint, from November 23rd to December 3rd 2018.

In the case at the Labour Court of Jakonis Antanas and Nolan Transport, DWT 1117, the chairman, Mr Duffy, addressed the circumstance where records have been provided to a complainant by their employer:

“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 complainant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights were contravened in the manner alleged. If the complainant fails to discharge that burden, he or she cannot succeed.”

I am satisfied that the respondent maintained adequate records of the time worked by the complainant and that these records have been provided to him. On this basis, I find that a breach of section 25 of the Act has not occurred and his complaint in this regard is not upheld.

CA-00028674-002, 003 and 005

These complaints are concerned with allegations that the complainant did not get breaks during the working day, that he did not get a weekly rest break of a minimum of 24 hours and that he worked excessive hours. The complainant holds a key position in a bank, he is a member of the executive team and he reports to the Chief Executive. His complaints concerning lunch breaks and hours of work are unusual for a person at his level of seniority, when he can determine the time at which he starts and finishes on any given day and he is responsible for ensuring that he does not work excessive hours to his own detriment.

At the hearing, the complainant said that he manages three people directly and he is the head of a department of around 12 employees. It is apparent therefore, that he delegates some of the responsibilities of his function as Chief Risk Officer to his subordinates.

Apart from the fact that he presented no evidence to support the allegations that he did not get lunch breaks or breaks at the end of the week or that he worked excessive hours, the complainant is one of four or five executive directors of the bank.   In such a position of authority and, for the proper functioning of his job, he must have the discretion to determine his own hours of work. The complainant submitted no evidence to show that he was constrained by his manager or any other person in his effort to determine his hours of work, and he provided no information at the hearing to show that he could not exercise the normal discretion of a senior executive to manage his time. It is my view that, in the senior position that he holds in the bank, the complainant has the discretion to determine his own working time. In this regard, I agree with Ms McKenna that the complainant is governed by section 3(c) of the OWT Act and that Part II of the Act, in respect of hours of work, does not apply to him.

CA-00028674-004

No evidence has been submitted by the complainant to show that he worked on any Sunday during the period from November 23rd until December 3rd 2018 and it is my view that there is no substance to this complaint.

CA-00028674-006

It is apparent that, from the date that he commenced employment with the respondent, the complainant has been aware that he is required to attend the office or, in general to be working for his employer between 9.00am and 5.00pm from Monday to Friday. No case can be made that he is not aware of the hours he is required to work and it is my view that the allegation that there has been a breach of section 17 of the OWT Act is without merit.

CA-00028674-007 - 012

From the information provided by the respondent at the hearing of these complaints, I am satisfied that, in June 2019, the complainant received his entitlement to pay for the public holidays between Christmas and the new year in 2018 / 2019 and that no payments are outstanding.

Having considered the evidence submitted by the parties at the hearing and, for the reasons set out in the Findings and Conclusions section above, I decide that the complaints that have not been withdrawn, CA-00028674-002 to CA-00028674-012, are not well founded.

Breaches of Part II of the Organisation of Working Time Act 1997