ADJUDICATION OFFICER DECISION & RECOMMENDATION

Adjudication Reference: ADJ-00028906

Parties:

	Complainant	Respondent
Anonymised Parties	Head of Finance	Hotel

Representatives

Natasha Hand of Richard Grogan Richard Grogan & Associates

Michael McGrath Ibec, Kathy Rigney

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038569-001	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038569-002	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00038569-003	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038569-004	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038569-005	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-007	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-008	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-009	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-010	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-011	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-012	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-013	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-014	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-015	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-016	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-017	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-018	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-019	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-020	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-021	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-022	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-023	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-024	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-025	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-026	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-027	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-028	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-029	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-030	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-031	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-032	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-033	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-034	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-035	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-036	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-037	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-038	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-039	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-040	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-041	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-042	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-043	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-044	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-045	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-046	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-047	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-048	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-049	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-050	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-051	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-052	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-053	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-054	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-055	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-056	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-057	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-058	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-059	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-060	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-061	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-062	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-063	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-064	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-065	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-066	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-067	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-068	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-069	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-070	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-071	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-072	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-073	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-074	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-075	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-076	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-077	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-078	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-079	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-080	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-081	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-082	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-083	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-084	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-085	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-086	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-087	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-088	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-089	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-090	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-091	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-092	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-093	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-094	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-095	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-096	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-097	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-098	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-099	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-100	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-101	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-102	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-103	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-104	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-105	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-106	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-107	30/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038569-108	30/06/2020

Date of Adjudication Hearing: 24/11/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The Complaint was employed as Head of Finance from 18th August 2019 to 15th May 2020. He was paid €97,000 per annum. He has claimed that he did not receive a proper contract of employment, did not get proper breaks and rest periods, worked in excess of 48 hours per week, was wrongfully dismissed and did not receive proper contractual notice.

There was a duplicate claim ADJ 28915 which was withdrawn at this hearing.

Supplementary submissions were received in December 2020 and February 10th, 2021.

1)Terms of Employment (Information) Act CA 38502-001-002

Summary of Complainant’s Case:

The Complainant stated that the terms and conditions issued did not comply with the Act as follows:

1) Sec 3 (1) (ga) The contract of employment does not state that under Sec 23 of the National Minimum Wage Act 2000 an employee may request a statement of their average hourly rate of pay.

2) Sec 1A of the Employment (Miscellaneous Provisions) Act requires that an employee is furnished with the number of hours that they are expected to work per normal working day. This contract did not comply with this.

3) The contract of employment gives the leave year as January 1st to December 31st ,not April 1st to March 31st.

4) The contract does not pursuant to the Terms of Employment (additional Information) Order 1998 (S.I. 49 of 1998) art.3 (1) advise of an employee’s rights under Sec 11,12 and 13 of the Organisation of Working Time Act.

He cited case law Beechfield Private Homecare Limited and Megan Kelly Hayes TED1919 and Felix Guerrero v Merchants Arch Company Ltd (DWT188) in support.

He is seeking compensation, which must be persuasive of an employer going forward to be compliant with employment law legislation.

Summary of Respondent’s Case:

This claim is rejected. The Complainant was issued with a contract of employment which was in compliance with this Act. The Complainant signed and accepted the contract. They stated that the individual claims made under this Act were unreasonable. The Complainant was employed in a very senior position. He was in charge of his own work and determined his own hours, therefore the matter of breaks does not apply to him. The staff handbook contains details of break entitlement. There was an inspection by the WRC Inspectorate and they were deemed compliant. There is no basis for compensation.

Findings and Conclusions:

1)”Sec 3 (1) (ga) The contract of employment does not state that under Sec 23 of the National Minimum Wage Act 2000 an employee may request a statement of their average hourly rate of pay”.

The Labour Court in TED 161 Irish Water v Patrick Hall stated, The document furnished did not contain such a statement. However, the Complainant’s contractual salary was set at five times the national minimum wage. A statement of the type envisaged by s.3(1)(g) of the Act could not have had any practical significance in the circumstances of the Complainant. Nor is it suggested by him that the omission of such a statement had any practical significance in the circumstances of his employment.

In this case the Complainant was employed as Head of Finance on a salary €97,000 per annum, which was almost five time greater than the national minimum wage. Such a statement could have no practical significance and would I suggest be met with some sense of amusement if given.

I find no justification for its inclusion and so I find that this part of the claim fails.

2) “Sec 1A of the Employment (Miscellaneous Provisions) Act requires that an employee is furnished with the number of hours that they are expected to work per normal working day. This contract did not comply with this”.

The Complainant was employed in a senior management position, that of Head of Finance. Such a position requires the holder to be completely in control of their own hours of work based on the needs of the business. I refer to the claims made under the Organisation of Working Time Act, see below. I find that such a statement would have no practical significance.

I find no justification for its inclusion and is not a requirement according to the Organisation of Working Time Act, see below. and so, I find that this part of the claim fails.

3) “The contract of employment gives the leave year as January 1st to December 31st , not April 1st to March 31st. “

The Labour Court in TED 161 Irish Water v Patrick Hall stated, “ Section 3(1)(j) of the Act provides that the statement furnished to the employee must provide information on any terms or conditions relating to paid leave (other than paid sick leave). The statement provided did contain information on the terms and conditions relating to annual leave. If it is suggested that the contractual provisions in the Complainant’s contract of employment in relation to annual leave contravened the Organisation of Working Time Act 1997 that is a matter that could only be adjudicated upon in proceedings under that Act”.

I find that this employment has determined that the holiday year runs as to the Calendar year. The Complainant was advised of that information. This is an information Act and as set out in the above Labour Court determination, if it is suggested that this is a breach of the Organisation of Working Time Act then the matter should be claimed under that Act.

Therefore, I find that this claim fails.

4) “The contract does not pursuant to the Terms of Employment (additional Information) Order 1998 (S.I. 49 of 1998) art.3 (1) advise of an employee’s rights under Sec 11,12 and 13 of the Organisation of Working Time Act”.

The Labour Court in TED 161 Irish Water v Patrick Hall stated, “ the statement provided that the Complainant’s normal hours of work were to be from 9am to 5pm over a 35 hour week. It is perfectly obvious what his rest periods were intended to be. While it is factually correct to say that the statement did not specify the duration or times of breaks it is an affront to common sense and reason to claim that a person in a senior position, such as that in which the Complainant was employed, could suffer any form of detriment from not being told when or for how long he could take a break in the course of his working day. Moreover, the Complainant accepts that he took breaks and that he had adequate rest periods and that he did not suffer any prejudice or detriment in consequence of this omission”.

I find that the Complainant was employed in a very senior position that, of Head of Finance. I find that he had sole discretion over the hours of work and breaks that he took. He advised that he was aware of break entitlements and managed a team of employees and ensured that they received their break entitlements.

I find that he was issued with a staff handbook setting out breaks and rest periods entitlements.

I have addressed this in the below claim under the Organisation of Working Time Act.

I find that this part of the claim is not well founded and so it fails

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I find that this claim is not well founded and so it fails.

2) Organisation of Working Time Act CA 38502-006-107

Summary of Complainant’s Case:

CA 38502 -006 Sec 17 : The contract of employment does not set out the start and finish times. There is no collective agreement in place. The Complainant was not notified in advance of working times.

He cited case Lucey Transport Ltd v Serenas DWT 141/2013 in support.

CA 38502 -007/008 Sec 11 : The Complainant stated that he did not always get eleven consecutive hours between shift finish and start. Breaches occurred on 28th /29th January 2020 and 16th/17th April 2020.

He cited case C-4804/04 Commission v United Kingdom [2006] ECR 1-7471 in support.

CA 38502 -009/010/011 Sec 15: Under this section it states that an employee shall not work more than an average of 48 hours per week. The Complainant worked in around 55 hours per week.

He cited IBM Ireland v Svoboda DWT 18/2008 in support.

CA 38502 -013 to 107 Sec 12: This section provides that an employee shall not work for a period of more than 4 hours and 30 minutes without a 15 minute break or 6 hours without a 30 minute break. Breaches occurred from 6th January 2020 to 16th May 2020.

He cited case The Tribune Printing v Publishing Group v Graphical Print & Media Union DWT 6/2004 in support.

Supplementary Submission on implications of the provisions of Part 2.

Notwithstanding the provisions of Part 2, the Complainant held the title only of Director, but he was not a Director of the Company. His hours of work were stipulated in the contract as 39 per week spread over 5 days. Overtime was provided for. So, he was informed who he reported to, the hours he was expected to work, his requirement to undertake overtime working. He was advised that his annual leave must be agreed in advance.

A person who contends to set their own hours of work and determine the same has no obligation to get consent. He could not decide when he took holidays. He didn’t decide the overtime required.

It was suggested by the Complainant’s representative that there is a derogation in Article 17 of the Directive 2003/88 which applies to maximum weekly hours an also to daily and weekly rests period. There is an argument that the derogation is not compatible with Article 31(2) of the Charter of Fundamental Rights of the European Union. The Complainant did not have autonomous decision-making powers. He was subject to management controls.

Summary of Respondent’s Case:

The Respondent stated that this Act recognises that employees at a senior level have more discretion over their working time and makes provision for Part 2 of the Act not to apply Sec 3(2) of this Act states, “ a person, the duration of whose working time (save 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” Such an employee is therefore exempt from Part 2 of the Act.

The Complainant, as a Director of Finance and a member of the Executive Committee, is within this category. The Act specifically excludes the Complainant from the application of the Act in respect of Sections 11 to 18. He was not required to clock in or out unlike the vast majority of the employees. However, he did record himself on the Biometrics Time and Attendance System. He was autonomous in terms of his hours worked. His hours were not monitored by anyone. He never raised an issue with his working hours. This employment was the subject of a WRC inspection and the result was that the Inspectors were more than satisfied with the practices and procedures there.

Response to the preliminary point on Part 2

In the first instance, the Act of 1997 recognises that employees at a senior level in an organisation have more discretion over their working time and makes provision for Part 2 of the act not to apply. Section 3(2) of the Act of 1997 is as set above.

Such an employee is therefore exempt from Part 2 of the Act. Therefore, the claimant, as Director of Finance and member of the Executive Committee, is within this category. The Act specifically excludes the claimant from the application of the Act of 1997 in respect of section 11 to 18. (Part2)

The claimant was Director of Finance.

He was on the Executive Committee.

He was not required to clock in or clock out, unlike the vast majority of employees. (Notwithstanding this the claimant took it upon himself to manually insert/ record his start and finish times on the Biometrics Time and Attendance System.

The claimant was autonomous in terms of his hours worked.

The claimant was a salaried employee whose pay was not linked to his hours worked. As a salaried employee, in practice and application throughout his employment, the claimant was not entitled to any specific ‘overtime’ rates of payments.

The claimant was autonomous in the allocation of his own annual leave.

The claimant’s hours were not monitored by the General Manager or anybody else.

The claimant would not be subject to disciplinary action for timekeeping.

The claimant’s had autonomy in determining his hours, while carrying out the requirements of the role. In fact, in a conversation with the General Manager regarding a lack of records of the senior team he was assured that the General Manager trusted those on the senior team to be committed to their role and as such was not required. This can be contrasted with vast majority of respondent employees who are required to clock using the biometric system. The procedure and entitlements are provided to all staff where it applies.

On foot of the claimant’s submission of claims to the WRC on 29 of June 2020, the respondent was the subject of a WRC workplace inspection. The inspectors, undertaking an inspection initiated on foot of the claimant’s explicit request for such and evidenced on his claim form to the WRC, were more than satisfied that the practices and procedures of the respondent with respect to Working Time, recording of working time and contractual documentation. The Inspectors did not recommend that any practices should be amended, altered or improved with respect to any class of employee. Therefore, the WRC have satisfied themselves following an inspection that the respondent’s processes are compliant with Organisation of Working Time Act 1997.

Sec 17: As Finance Director he did not have a specific start and finish times. He was not required to start or finish at a specific time.

Sec 11: He was provided with appropriate breaks.

Sec 15: He did not work in excess of 48 hours per week.

Sec 12: The Complainant stated that he got his short break but no other, yet he normally used the canteen /restaurant for his lunch.

Notwithstanding that the Complainant is not covered by Part 2 of this Act, he was provided with a copy of the Company Handbook containing his terms and conditions.

These claims are rejected.

Findings and Conclusions:

I note that Part 2 of this Act states that it shall not apply to Sec 3(2) (c) “ a person, the duration of whose working time (save 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”.

Therefore, the Act states that this part of the Act does not apply where the duration of their working time is determined by himself.

In this case the Complainant’s title was Finance Director.

I note that his representative stated that this was only a title, he was not in fact a director.

I find that the Complainant gave evidence that he was Head of Finance and was responsible for a team. He stated that his hours of work and his ability to take rest breaks and rest periods were dictated by the responsibilities of the job. He was not closely managed and nobody was instructing him not to take his breaks and rest periods or dictated his hours of work. It was dictated by the responsibilities of the job.

I therefore find that the Complainant was in control of his own hours of work, and breaks and rest periods, his start and finish times, these were “determined by himself”.

Therefore, I find that Sections 11 to 18 do not apply to him.

I find that these claims are not well founded.

3) Industrial Relations Act CA 38502-003

Summary of Employee’s Case:

The Employee stated that he was employed initially on a 6-month probationary period. The contract stated that the probationary period may be extended at the company’s discretion. On 18th February, when he was 6 months in employment he was informed that the probation was being extended because of the staff turnover and department communication issues. However, during this time, he was given two discretionary bonuses and letters thanking him for his hard work. It is not logical to be giving bonuses and then extending probation. Likewise, what was the relevance of the staff turnover. On 15th May he was told that he was dismissed, the day before his extended period would end. He was not advised in advance of that meeting to dismiss him. He was not given the opportunity to put forward his position. He appealed the decision to dismiss setting out the grounds of the appeal. He was informed that the decision to dismiss was upheld. This was not a proper appeal. This dismissal was done underhandedly. There were no fair procedures. He was not advised about the meeting that led to his dismissal and was not given the right of representation. He disputes the allegation of poor performance, citing the fact that he was given discretionary bonuses. He cited the case Donal O’Donovan v Over C Technology Ltd and Over-C Ltd [2020] IEHC 291 in support also Beechside Company Ltd t/a Park Hotel Kenmare v A Worker.

Summary of Employer’s Case:

The Employer stated that the Employee was appraised regularly on his performance by the General Manager. There was a formal review on 5th December 2019. On 18th February 2020 the General Manager decided that the probation should be extended by three months because of issues with the management of the finance function, communication and engagement and mistakes being made in the department and issues with rectifying them. There was a grievance raised by the Accounts Supervisor that he failed to conduct a formal interview for a vacancy. The outcome was that it was found that the process had unfairness in it and he was expected to apologise. On 18thFebruary 2020 it was agreed that he would be provided with a performance improvement plan. He then offered to prepare the performance improvement plan. His probation was extended for three months and is was stipulated “Please be advised that during the extended probationary period your performance and suitability for continued employment as Director of Finance will be monitored. Failure to meet the standards and performance expected within the extended probationary period may result in termination of employment”. A review was to take place on 18th March but COVID caused the premises to be closed. A transfer of undertakings took place on 1st March 2020 and because of the increased scrutiny a number of issues and practices were identified which were concerning to the Employer and relevant to the evaluation of the Employee’s performance and suitability while on probation. On 15th May 2020 he was called to a meeting with the General Manager and his performance was discussed. Following consideration, he was informed that he was not successful. The decision to terminate was confirmed in writing, setting out the reasons for dismissal. He was given one month’s notice even though he was only entitled to one week. He was also given the right of appeal. The appeal was conducted by another General Manager from a different location. The decision to terminate the Employee’s employment was upheld.

It is the Employer’s position that the Employee when accepting this contract of employment agreed to be bound by the probationary clause within that contract. The Employer has relied upon this contractual agreement to terminate the Employee’s employment. It was not done as a penalty or an outcome of a disciplinary process. The Employer monitored his performance over a period of nine months and they deemed that it was not satisfactory, he was not suitable to remain in the employment. The Employer was contractually entitled to make the decision to terminate the employment. The Employee agreed to this possibility upon accepting this contract. During this employment there was a formal complaint made against him which lead to a negative finding. There were repeated issues with delays in payroll, overpayment of payroll, payment of bonuses, delays in cashflow reports and creditors ledgers not being in balance and inaccuracies within the cashflow reports and forecasts. There was also a high level of staff turnover in the finance function. The Employee was in a position of extreme responsibility within the company. The Employer needed to have absolute faith and trust in him. He was treated fairly and reasonably during his probationary period. He had a well-staffed finance function. He was given every support including paying for external financial guidance and support. His probation was extended instead of being terminated. The Employee’s termination under the clause of his contractually agreed probationary clause was fair and reasonable. This claim is dismissed.

Findings and Conclusions:

I find that the Employee was offered and he accepted a position subject to the successful completion of a probationary period.

I find that due to unsatisfactory performance the probationary period was extended by an additional three months, to nine months in total.

I find that the Employee accepted this extension to the probationary period and so accepted that he had not reached the required standard of performance.

I find that he agreed to prepare his own performance improvement plan.

I find that the Employer pointed out that there were a number of deficiencies, listed above, where he failed to achieve the required standard of performance.

I find that the Employer decided to terminate the employment as they had not the confidence in his ability to do the job to the required standard.

I note that the Employee did not accept this and pointed out that his probation was negatively affected by the impact of the lockdown and the reduction in staff numbers.

I have no reason to disbelieve the Employer’s assessment of the Employee’s performance.

I find the Employer’s position more believable and compelling.

I find that the Employee was employed in a very senior position, with very clear responsibilities.

Yet, I note the claims that he took under the Organisation of Working Time Act, set out above, where he claimed that he was unable to take his breaks, rest periods, had to work excess hours and didn’t know his start and finish times.

I find that these claims only serve to convince me that he was incapable of performing his tasks of Head of Finance/ Director of Finance. A person at that level making such claims would suggest that he was completely out of his depth at a most basic level.

Therefore, I find that the Employer had good reason to terminate the employment.

I find that the Employee was well aware and accepted that his performance was not satisfactory.

I find that he was well aware that he was being assessed, especially in the final three months and that a decision had to be made.

I find that he was aware that every meeting that he held with his General Manager was a critical one.

I find that as Head of Finance he should have been fully aware of the shortcomings as set out above regarding the performance of his department.

I find that the Employer acted reasonably and fairly within the context of dealing with a person employed as Head of Finance /Director of Finance.

I note the conflicting positions of both parties regarding review meetings. What is crystal clear is that a review took place and his probation was extended and he accepted this because his performance was below an acceptable standard

I find that when he had his final meeting he has claimed that he wasn’t advised in advance and he wasn’t given the right of representation.

I find that if a person in a very senior position had wanted representation he should have been capable of asking for it, in this case he didn’t.

I find that he was given the right of appeal.

I find that the shortcomings in the procedural process were not of a sufficient gravity as to render the process faulty.

I find that the termination of employment was fair.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

For the above stated reasons, I recommend that this claim is not well founded and so it fails.

4)Payment of Wages Act CA 38502-004/5

Summary of Complainant’s Case:

These claims were withdrawn.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons, I have decided that these complaints are not well founded and so they fail.

Dated: 22nd February 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Contract of employment not comprehensive, application of Working Time Act to senior manager, termination during probation.