DWT1924

This is an appeal under the Organisation of Working Time Act, 1997, ‘the Act’, by Ms. Manciu, ‘the Complainant’, of a decision by an Adjudication Officer, (AO) of the Workplace Relations Commission, (WRC), that three related complaints against Stablefield Ltd., ‘the Respondent’ were not well founded.

The complaints relate to (1) the calculation of the Complainant’s annual leave; (2) the calculation of her public holiday pay and (3) the number of hours that the Complainant worked per week during the cognisable period. The AO decided that the claims were not well founded. The Complainant appealed these decisions to the Court

The Respondent argued the Complainant’s claim that her average working hours infringed section 15 of the Act was not properly before the Court for consideration. The Respondent submitted that, while the AO had issued a decision on this complaint and this decision was under appeal, the Complainant had not specified this complaint by ticking the appropriate box on the WRC complaint form and, therefore, the matter should not have been considered by the AO and, as a consequence, could not be appealed to the Court.

The Complainant countered that the WRC complaint form was administrative not statutory in nature; that the decision of the AO showed clearly that the issue had been raised at the WRC hearing; no objection had been made and there was no cross appeal from the Respondent to the AO’s decision.

While the Respondent acknowledged that the issue had been discussed, it was stated that this was in the context of a different complaint under a different statute.

The Court reserved its decision on this matter, and it is dealt with in the Determination.

Summary of Complainant arguments

The Complainant is a national of Romania, who began working for the Respondent as a mushroom picker in 2012. In April 2013, the Complainant was promoted to the role of ‘Picker Trainer’. In September 2013 she was promoted to ‘Supervisor’ and in June 2015, she was promoted to ‘Harvest Manager’. Her hours of work during the cognisable period for the purposes of the Act, were 6.20am to 9.20pm, six days every week. In that period, the Complainant received two 10 minute breaks, two 20 minute breaks and one 30 minute break each day, (a total of 90 minutes per day). Therefore, in the cognisable period, the Complainant worked 81 hours per week.

The hours entered into the computer where all employees clocked in were altered manually by the Respondent. These altered records formed the time sheets that the Respondent relies on. They do not reflect the actual time worked by the Complainant.

In a screengrab from 28 July 2016, the Complainant is noted as finishing work at 21.20 hours.

The Complainant is entitled to have her annual leave adjusted to reflect the hours worked and to additional remuneration for public holidays.

Summary of Respondent arguments

The Complainant assisted with working time and pay records for employees and the records maintained by the Respondent are a true and accurate record of working time of employees.

The Complainant was entitled to annual leave of four working weeks and she received this. This is verified by the Complainant’s pay slips and pay analysis sheets provided to the Court.

Likewise, the Complainant was paid her correct Public Holiday entitlement. This is also verified by the Complainant’s pay slips and pay analysis sheets provided to the Court.

At no material time did the Complainant work more than 48 hours in a week. This is verified by the Complainant’s pay slips and pay analysis sheets, all of which were signed by the Complainant.

Witness Evidence

Ms. Ana Manciu

Ms. Manciu, ‘the Complainant’, gave evidence that, as the Harvesting Manager, she was responsible for sales, recruitment, training, accommodation for employees, checking the ‘tunnels’, checking the sizes of product, orders and packaging. She had overall management responsibility for the employees, she put up instructions and she reported daily to the owner. She started work before 6.30 am every day, six days per week and, sometimes, seven days per week and in the evenings before leaving at 9.20 pm, she walked around the tunnels checking, with the owner, anything that might require attention.

The witness claimed that records which showed a 40 hour working week were a ‘lie’ and that she always worked in or around 80 hours per week. She claimed that the Respondent kept false records, which reflected only half her hours worked.

The witness accepted that she received 20 days’ holidays per year but, based on her 6 day working week, she believed that under the Act she was entitled to more than this.

The witness accepted evidence that showed she was given an additional payment for public holidays but stated that this evidence showed that she was paid an additional 6 .23 hours even though she worked more than 13 hours per day.

Under cross examination and questions from the Court, the witness agreed that, in some ways, the relationship with her employer had been good but she said that she felt she had been used. She was the link between the owner and the pickers. She did not accept that she had any involvement in respect of pickers’ pay other than to hand out pay-slips.

The witness did not accept that when picking stopped in the afternoon her work ceased at that point as there was an amount of administration to be done each day.

The witness stated that she had raised the question of her working hours with the owner of the Respondent on a number of occasions and, specifically, she could remember doing so on 11 December 2015 and again shortly before she left. She said that she was told that the hours were noted ’only for the record’ and that she was on a fixed wage, so it did not matter how long she worked.

She accepted that she had signed all relevant documentation on her departure and had not raised any issues as ‘it would have made no difference’. She lodged a claim with the WRC just 10 days later.

The witness described how her work hours were recorded on the computer, onto which all employees logged on in the morning and logged off when leaving

The witness stated that she got 4 breaks per day, totalling 1.20 hours.

The witness said that she worked 5 public holidays in the cognisable period, (this was accepted by the Respondent).

Mr. Tom Sweeney

Mr. Sweeney is the owner of the Respondent company.

The witness did not accept evidence given that the Complainant workedover80 hours per week and said that this was ‘not possible’. He referred to documentation provided in the form of pay slips and pay analysis sheets, which showed the hours for which the Complainant was paid.

The witness stated that work finished in the early afternoon and that the Complainant completed all her functions by then. He said that the Complainant worked from 6.30 am to 1.30pm each day. He denied that the Complainant accompanied him on ‘night walks’ to check equipment etc.

The witness stated that the Complainant had access to all functions on the computer system, on which the clocking system was linked directly to the payroll system.

The witness denied that the Complainant was ever expected to assist with picking while she was the Harvest Manager and said that, if she had, this would have been reflected in the pay analysis sheets that separated picking and non-picking remuneration. It was clear from these sheets that the Complainant was not paid for picking.

Under cross examination and questions from the Court, the witness stated that employees were never expected to work more than 48 hours in a week and that the usual week was 39 hours. He stated that the Complainant had never raised her working hours with him and that she had never brought any such complaints to him on behalf of pickers.

The witness denied the veracity of documents provided to the Court by the Complainant, one of which was stated to be minutes of a staff meeting, outside of the cognisable period, that said the picking finishing time would be 7pm. A second document showed times for afternoon and evening breaks and a third document headed ‘Pickers Complaints’ contained a note that ‘everybody’ wanted work to finish at 8pm. The witness noted that none of these documents were on the company’s headed paper.

The witness stated that three breaks were provided, for 20 minutes two hours after commencement and two further breaks of 30 minutes each. The payroll system was set up to deduct these breaks. If the lorries collecting the product left early, the witness said that the Complainant and himself would take a break for a cup of coffee for about 10 minutes. He said that it was up to the Complainant herself to ensure that she took her breaks.

The witness said that he met the Complainant early in the morning but never at night. Asked how to explain a screengrab produced by the Complainant that seemed to show her clocking out at 21.12 hours on 28 July 2016, the witness said that this only showed that the Complainant had access to the computer at that time.

With regard to the week where the pay analysis sheets showed the Complainant working for seven days, the witness stated that the Complainant then took Monday off.

The witness stated that he did not personally prepare the pay slips and pay analysis sheets but he knew that the Complainant finished early each day as he saw her leave. He denied receiving work-related texts from her most evenings and he knew that she took her breaks as he saw her in the canteen. He said that the allegation that records were altered just to ‘keep it legal’ was not true.

The applicable law.

Organisation of Working Time Act 1997

Weekly working hours.

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—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned insubsection (5), is specified in a collective agreement referred to in that subsection.

(2)Subsection (1)shall have effect subject to theFifth Schedule(which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject tosubsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

F10 [ (aa) any period during which the employee was absent from work while on parental leave,force majeureleave or carer ’ s leave within the meaning of the Carer ’ s Leave Act, 2001, ]

(b) any absences from work by the employee concerned authorised under theMaternity Protection Act, 1994, or theAdoptive Leave Act, 1995, or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to insubsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply withsubsection (1)(if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court undersection 24may specify, for the purposes ofsubsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

Entitlement to annual leave.	19.—(1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
		(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
		(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
		(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
		Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
		(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.
		(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
		(4) Notwithstandingsubsection (2)or any other provision of this Act but without prejudice to the employee's entitlements undersubsection (1), the reference insubsection (3)to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
		(5) An employee shall, for the purposes ofsubsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
		(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Entitlement in respect of public holidays.

21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as ifparagraph (a)were omitted therefrom.

Public holidays: supplemental provisions.

22.— (1) The rate—

(a) at which an employee is paid in respect of a day off undersection 21, and

(b) of an employee’s additional day’s pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes ofsection 21, time off granted to an employee under that section orsection 19shall be regarded as time worked by the employee.

25.—(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.
	(2) The Minister may by regulations exempt from the application ofsubsection (1)any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
	(3) An employer who, without reasonable cause, fails to comply withsubsection (1)shall be guilty of an offence.
	(4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (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.

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years ’ remuneration in respect of the employee ’ s employment. ]

28. A decision of the Labour Court undersection 44of the Workplace Relations Act 2015 on appeal from a decision of an adjudication officer referred to in subsection (3) of section 27 shall affirm, vary or set aside the decision of the adjudication officer.

Deliberation and decision

The Court was asked to consider as a preliminary point whether the claim regarding alleged excessive weekly working hours, contrary to s.15 of the Act, was validly before it. The Respondent argued that the AO erred in issuing a Decision on this matter as the Complainant had not ticked the appropriate box on the WRC complaint form.

This Court hears appeals of Decisions made by the WRC. It is evident from the AO Decision that this matter was adjudicated on at the WRC hearing and a decision was arrived at that the complaint was not well founded.

Section 44(1) of the Workplace Relations Act 2015 provides that a party to proceedings under section 41 may appeal a decision of an Adjudication Officer given in those proceedings, to the Labour Court. It is clear that in this case a decision in relation to section 15 was made by the Adjudication Officer and an appeal in relation to this aspect of the claim is properly before the Court.

All three claims presented to the Court are inextricably linked to the question of what were the Complainant’s weekly working hours?

In order to determine what a worker’s working hours are, employers are required to keep records of working time in such form as prescribed by S.I. No. 473 of 2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations2001. Section 25(4)of the Organisation of Working Time Act 1997 provides, in effect, that where records are not kept in the prescribed form, the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the Complainant, rests on the employer. The records presented by the Respondent to the Court consisted of pay slips and pay analysis sheets. They are not records of the type contemplated by the Statutory Regulations These do not offer any conclusive evidence of hours worked. It was open to the Respondent to provide the Court, together with their submission, with decisive evidence of hours worked, by supplying the primary records necessary to ensure compliance with s.25. The Respondent did not do so and confirmed at the hearing that they had not brought the documentation required. The obligation to maintain records is on the employer and if he fails to fulfil that obligation, he must bear the consequential burden of rebutting the evidence of the Complainant. In this case the employer has not rebutted that evidence to the satisfaction of the Court. Accordingly, the Court must hold that the employer contravened the Act in respect of the hours worked, as alleged by the Complainant.

In relation to the Complainant’s entitlement to annual leave, this is a statutory entitlement governed by section 19 of the Organisation of Working Time Act 1997. The Complainant lodged her claim on the 17 August 2016. Section 27(4) of the Act allows for complaints to be presented within 6 months of the alleged contravention of the Act and Section 27 (5) provides for an extension of that limit by a further 12 months, where reasonable cause has been shown for the Complainant's failure to present the complaint within that time limit. No such application was made to the Court. It follows that the six-month period referred to in the complaint under Section 27(4) of the Act encompasses the period 18 February 2016 – 17 August 2016, ‘the cognisable period’.

The 6-month period referenced in the complaint encompasses the leave year 2015/2016, which began on 1 April 2015.

The evidence given by both sides was that the Complainant was accorded 20 days’ annual leave in 2015/2016. Section 19 of the Act provides that an employee who works in excess of 1,365 hours in a leave year is entitled to 4 weeks’ annual leave. In this case the Complainant worked Monday to Saturday inclusive and should therefore have been accorded 24, as opposed to 20, days’ annual leave.

The Complainant is entitled to be paid for an additional 4 days’ annual leave at a daily rate of €83.33, (the Court notes some unexplained inconsistencies in the rate of basic pay shown on pay slips and notes that a figure for basic pay of €2000 per four weeks appears on a number of pay slips. This is the amount used by the Court and the figure shown is based on a six day working week).

The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano inR v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559.InVon Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891the ECJ, as it then was, made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Having regard to the above principles, the Court makes a further award of €1000 by way of compensation for the breach of section 19.

In relation to the public holiday claim, it is agreed that the Complainant was paid for 5 public holidays during the cognisable period. It was further agreed that the Complainant was paid for 6.23 hours instead of 13 hours. Section 22 of the Organisation of Working Time Act provides forinter alia,the rate at which an employee is paid in respect of a day off under section 21 and that the rate of an employee’s additional day’s payshall be such rate as is determined in accordance with regulations made by the Minister for the purpose of that section.

Section 5(2) of Statutory Instrument No. 475/1997:ORGANISATION OF WORKING TIME (DETERMINATION OF PAY FOR HOLIDAYS) REGULATIONS, 1997, provides:-

(2) If the employee concerned (not being an employee to whom paragraphs (a), (b) and (c) of Regulation 6 of these Regulations apply) does not work on a day which is a public holiday, then—

(a) in the case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to one-fifth of the sum including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid in respect of the normal weekly hours last worked by the employee before that public holiday,

The Court, having determined that the pay of the Complainant was €2000 per four weeks, determines that one fifth of the weekly pay is €100. In comparing that rate to the rate paid to the Complainant in respect of public holidays in the cognisable period, the Court determines that a balance of €88.84 is owed to the Complainant.

The Court makes no award of compensation in respect of this aspect of the case.

With regard to the alleged breach of s.15 of the Act, having determined, as explained above, that the Respondent was in contravention of the Act, the Court is obliged to take account of the loss incurred by the Complainant. The Court is satisfied, on the basis of evidence presented, that a working week of at least 80 hours was the regular reality for the Complainant, rather than that of the 81 hours claimed. The Court is not satisfied that recompense by a simple formulaic application of an hourly rate to the difference between the maximum of 48 hours per week permitted by the Act and the actual hours worked is appropriate, as the Act provides that such hours should not be worked in the first place.

The Court determines that payment of compensation to the Complainant for what the Court is satisfied was a conscious breach of the Complainant’s rights under s. 15 of the Act is the most appropriate means of dealing with this matter. The Act, see above, requires the Court to have regard to what level of compensation is just and equitable, subject to a limit of two years’ pay. The ECJ, as it then was, set out inVon Colson v Kamann (1984) ECR 1891,that sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive, they must reflect the gravity of the breaches and should act as disincentives against future infractions.

This Court noted inEdward James Feeney v Milagros Baquiran (2004) 15 E.L.R 304that the provisions of this Act and the Directive on which it is based are health and safety imperatives. Therefore, breaches of employees’ rights have potentially far-reaching consequences. This Court examined also the concept of ‘proportionality’ in determining the scale of a compensation award for a conscious breach of an employee’s rights under s.15 of the Act inHSE South and Kerry General Hospital v Peter Lukco DWT 1560.

Taking all factors into account, the Court awards compensation of €20,000 for breaches of the Complainant’s rights under s.15 of the Act.

In summary, therefore, the Court determines that the following payments to the Complainant are warranted for breaches under the relevant sections of the Act;

s.19---4 days’ pay at €83.33 per day, total of €333.32, plus compensation of €1,000.

s.22---€88.84

s.15----€20,000 compensation.

Determination

The AO’s Decision is set aside accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Tom Geraghty
DC______________________
18 October 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.