Complainant

Respondent

Anonymised Parties

A Shift Supervisor

A Service Station

Representatives

Gerry Thorp HR Solutions

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00035598-001

07/04/2020

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

CA-00035598-002

07/04/2020

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

CA-00035598-003

07/04/2020

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

CA-00035598-004

07/04/2020

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

CA-00035598-005

07/04/2020

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

CA-00035598-006

07/04/2020

The complainant commenced employment with the respondent on 7 October 2014. She was subsequently promoted to Shift Supervisor on 17 September 2018. Her rate of pay was €11.30 per hour. She has made claims under the Payment of Wages Act and the Organisation of Working Time Act. At the commencement of the hearing, the complainant withdrew the following claims CA-00035598-002 and CA-0035598-005.

The complainant was employed as a shift supervisor with the respondent company. She was certified on sick leave from work from 29 November 2019 until 12 August 2020. She then returned to work but subsequently she resigned her position on 2 October 2020 having obtained a position with a different employer.  She makes the following claims:

Payment of Wages Act

The complainant makes a claim in relation to non-payment of wages for additional unrecorded hours worked. She states that typically she worked 4-5 hours unrecorded per week. This work involved price comparison checking in two local shops before and after her day shift. The complainant submits that she asked her shop manager to be paid for these hours but the reply was that there were no more hours available.  

Organisation of Working Time Act - 11-hour rest breaks between shifts

The complainant alleges that she did not receive “eleven hours rest between shifts on weeks 28, 35, 38 and 43 of 2019”.

Organisation of Working Time Act - weekly rest breaks

The complainant alleges that she did not receive her “proper weekly rest breaks on four occasions: weeks 28,35,38 and 43 of 2019”.

Organisation of Working Time Act – excessive hours of work

The complainant alleges that she worked 50.34 hours on average which is above the limit of 48 hours average.

The respondent states that the complainant commenced employment with the company on 7 October 2014. She wassubsequently promoted Shift Supervisor on 17 September 2018.She commenced a period of sick leave on 29 November 2019 and returned to work on 12August 2020. She subsequently resigned her position on 2 October 2020 having obtained aposition with a different employer. Her former manager Mr. G states that he providedher with a telephone reference and that he believes that they parted on good terms.

Preliminary Matters  - Statutory Time Limits 

The respondent submits that the complainant’s Complaint Form was completed on the 7 April 2020. It submits that insofar as the complainant’s complaints pursuant to the Organisation of Working Time Act, 1997 and Payment of Wages Act 1991 are concerned, section 41 (6) of the Workplace Relations Act, 2015 provides that an Adjudication Officer shall not entertain any complaint referred under the section if it has been presented after the expiration of 6 months from the date of contravention.  The respondent submits that the relevant complaint period is between the 7 October 2019 and the 7 April 2020 (Week 41 of 2019 commenced on 7 October 2019) and therefore any matters that allegedly took place prior to week 41 of 2019 should be deemed statute barred. 

Payment of Wages Act 1991 ADJ-00028708 CA-0035598-001

The complainant alleges that she ‘was working 4 to 5 hours per work during the rostered period weeks 28 to 46 of 2019 which were not paid for. These were additional hours to my rostered hours’. 

The complainant failed to provide specifics on dates and times when these alleged breaches of the Payment of Wages Act 1991 took place or file detailed submissions in support of her complaints. She has failed to indicate who allegedly made her work these extra unpaid hours and the circumstances surrounding how this came about. Notwithstanding the fact that week’s 28 to 40 are in fact statute barred as they are outside the statutory time limits provided for under Section 41 (8) of the Workplace Relations Act, 2015, the respondent submits that it is prejudiced in its defence of these particular complaints because of the lack of detail provided. 

Section 27 Organisation of Working Time Act 1997 ADJ-00028708 CA-00035598-003

It is alleged that the complainant did not get eleven hours rest between shifts on weeks 28, 35, 38 and 43 of 2019. Details of rest periods allegedly missed have been provided by the complainant.  

In this regard, the respondent submits that of the 8 breaches alleged by the complainant, only 3 fall within the 6 month statutory timeframe.

Section 27 Organisation of Working Time Act 1997 ADJ-00028708 CA-00035598-004

The complainant alleges that she did not get her ‘proper weekly rest breaks on 4 occasions, weeks 28, 35, 38 and 43’ of 2019. Details of weekly rest periods allegedly missed have been provided by the complainant.

The respondent submits that of the 4 breaches alleged by the complainant, only 1 falls within the statutory timeframe.  

Section 27 Organisation of Working Time Act 1997 ADJ-00028708 CA-00035598-006

The complainant alleges that she worked 50.34 hours on average which is above the limit of 48 hours average.

With regard to the above claims made under the Organisation of Working Time Act 1997; the respondent states that it endeavours to comply with the Organisation of Working Time Act 1997. In this regard, it has a number of systems and measures in place. On the third week of every month the respondent’s service stations receive a reminder email from the area manager reminding managers to submit details of budgets/rosters for the following month. A reminder to the effect that appropriate rest periods should be taken account of in the compilation of the new roster is included in the email. Rosters are submitted and should include details of staff and any members of the management team. The proposed rosters are checked to ensure that they comply with budgets and the Organisation of Working Time Act 1997 and are only approved if no breaches are apparent. If there are breaches of the Act the roster is rejected and must be resubmitted. However, approved rosters can subsequently be amended at local level for various reasons including absences, sick leave, requests for swaps etc.

Mr. G was the complainant’s manager. He states that breaks were rostered on the Daily Routine Planner and that during his 15 years working there, he has never received a complaint from a member of staff of not receiving their break. Staff members should log their breaks on an app. He states that staff have a small kitted out staff room where they can avail of breaks. There is piped music in the room. They receive a staff discount for food purchased at the store’s deli counter. 

The respondent submits that the complainant was promoted to the position of Shift Supervisor on 17 September 2018 and was provided with a new contract on 20 September 2018. It states that on assuming this position, the complainant moved from a previous contract of 40 hours per week to a new contract of 37.5 hours per week. The respondent submits that the complainant was, in effect Mr. G’s, No. 2 and managed the service station during times of Mr. G’s absence. The respondent contends that the complainant’s contract clearly outlines her rights and entitlements under the Organisation of Working Time Act of 1997. In this regard, the wording as stipulated in the contract of employment clearly places an onus on the complainant to notify management of any missed rest periods/breaks within one week of such an occurrence. Her manager Mr. G has indicated that he received no such notification from the complainant nor has she put forward any evidence to indicate that she did in fact notify anyone in authority of her missed rest periods/breaks as required by her contract. The respondent further submits that her role as  supervisor is described as follows ;

Principal Objective of Position: 

As Store Supervisor, you are the Store Manager’s assistant and partner. You will work closely with the Store Manager and the team at the station to ensure a good and stable operation, efficient and profitable operation, exceptional customer service and that the store is a fun and enjoyable place to work…... 

Amongst her key responsibilities was an obligation to ‘Ensure that the work force follow the law and regulations, the company’s orders and instructions, internal rules, instructions, policies and other internal documents’ including, inter alia, ‘being responsible for creating and maintaining employee schedules’. 

Mr. G states that sometime in 2019 the complainant offered to assist him in doing up the rosters. Mr. J who was employed as a sales assistant in the store at the time, believes that the complainant started to do the monthly scheduling ‘around July 2019’. The respondent submits that in August 2019 Mr. G availed of a period of time off between 1 August 2019 and 12 August 2019. On his return to work he discovered that the complainant had worked 7 days which she had not been requested to do. In fact, records indicate that the complainant worked a total of 12 consecutive days from the 31 July 2019 to 11 August 2019 (inclusive), at a time when she was in sole charge of the store. Mr. G further states that the complainant was working other extra hours covering for people who were absent without offering these hours to other staff members. When he confronted the complainant on these matters, she allegedly informed him that she needed the money as she had moved into a new house. At no time did she complain to anyone about working extra hours.

Mr. G further states that when the complainant went sick in late 2019, he was shocked to discover that she had adjusted the December 2019 roster, after it had been approved by the area manager, to schedule herself to work everyday day over Christmas week of 2019.  Mr. J who worked with the complainant (and has since been promoted to assistant manager), confirms that if he wanted to avail of time off he would always take the matter up with the complainant as she was doing the roster. He further states that, to his knowledge everyone availed of their breaks and that no staff member ever worked for cash as alleged by the complainant. 

Mr. F (Area Manager) was tasked with interviewing the complainant’s manager, Mr. G, and other members of staff in relation to the complainant’s allegations when they came to light. Mr. G’s interview took place on 16 March 2020. During the course of the interview Mr. G outlined how the complainant had covered absences without offering the extra hours to colleagues choosing to work them herself. To him it was apparent that the complainant was assigning herself extra hours unbeknownst to Mr. G, hours that she had not been requested to undertake. Mr. G is also adamant that the complainant always availed of her breaks including ‘smoke breaks’.

With regard to the allegation that the complainant was not being paid for hours worked; the respondent and Mr. G totally refute this allegation and insist that she was paid for all hours worked.  The complainant has provided a copy of a screenshot of a text message she received while on sick leave in which Mr. G is offering to pay people out of his own pocket to work. Mr. F enquired into this aspect of the allegations. When this matter was put to Mr. G he stated that “On February 2nd while I was away on a family trip I was notified of an absence issue that couldn’t be covered by T [my emphasis], who was assuming the position of number 2.  I attempted to phone everyone, except XXX of course who was still absent, but nobody answered the phone to me.  Out of frustration I posted a text in the group chat where I offered to pay someone if they could cover and make it worth their while. I bitterly regret this but I did it get a response. Fortunately, someone did phone me and I was able to cover the missing shift. This person was not paid cash.”   

The respondent submits that all available staff from the respondent facility were interviewed by Mr. F in respect of cash payments and breaks and those available confirmed to him that they had always received their breaks and that they had never been paid in cash.

With regard to the complainant’s claim in relation to weekly rest periods, it is submitted that the respondent had procedures in place to ensure that employees receive proper rest periods. In her position as the manager’s assistant with responsibility for local rostering, it is submitted that the complainant was expected to adhere to and ensure compliance with the respondent’s policy in respect of rest periods. It is submitted that employees, including the complainant, were advised of their statutory entitlements regarding daily and weekly rest periods which are clearly outlined in her contract of employment.  The complainant was at all material times aware that the respondent operated a system whereby staff should inform a manager of a missed rest period within one week following which compensatory rest would be provided where appropriate. The respondent was never advised by the complainant that she was unable to or prevented from taking rest periods, and accordingly the respondent was unaware of any difficulty in this regard.

Insofar as there may have been a technical breach/breaches of the Act, which are not admitted, it is submitted that same were occasioned as a result of the complainant’s own failure, refusal and/or neglect to take breaks.

With regard to the complainant’s assertion that she worked an average of 50.34 hours per week, it is noted that the complainant has referenced a nineteen-week period from week 28 (8 July 2019) to the end of week 46 (17 November 2019) of 2019. Notwithstanding the fact that this was a period when the complainant was in effect controlling the hours she worked, it is submitted that any calculation of a ‘reference period’ should be made over a consecutive seventeen-week period. Details of the complainant’s hours for weeks 9 to week 25 (inclusive) indicate that a total of 751.5 hours were recorded averaging 44.2 hours per week (751.5 divided by 17). When 75 hours are deducted for a two-week period of annual leave that she availed of between 1 April 2019 and 12 April 2019 the average hours worked per week for this reference period is 45.1 (676.5 divided by 15).

The respondent cites caselaw regarding A Manager -and- Night Club, (ADJ-00021252 CA-00027973-004 in support ofits case. The respondent submits that in this case the Adjudicator, on the balance of probabilities, found that “the complainant was responsible for scheduling breaks and was in a position to schedule his own breaks as and when appropriate. Therefore, the Adjudicator finds that the respondent did not “require” the complainant to work in a manner that infringed section 12(1) or 12(2) of the Act as he was at all times free to allocate break times to himself…. “

The respondent also cites caselaw in the matter of IBM Ireland -and- Michelle Svoboda Determination DWT0818 wherein the complainant alleged that she regularly worked in excess of 48 hours per week and that she was not afforded adequate breaks or daily rest periods. In this instance the complainant was found to have worked in excess of 48 hours per week, however the respondent had not instructed or required her to do so and despite instructions being issued directing the complainant not to work in excess of permitted hours the complainant continued to do so. The Court concluded, inter alia, “that a contravention of s.15(1) of the Act did occur in this case in that the Claimant was permitted to work in excess of 48 hours on occasions. However, the Court is equally satisfied that the breach was technical and non-culpable in nature and that the Claimant was herself primarily responsible for what occurred’. The respondent submits that in light of the technical and non-culpable nature of the breach, the Court was satisfied that it “should make no further order in the matter.”

In conclusion, the respondent submits that it made every effort to comply with the Organisation of Working Time Act.  Whilst it is accepted that the onus is on the respondent not to ‘permit’ the complainant to work more than 48 hours in a ‘reference period’ and that they shall be entitled to the provisions of Section 11 and 13 of the Act, it is submitted that the complainant, who had gained a position of trust, was in a position to assign herself extra working hours and did so and continued to do so having been spoken to in this regard by her manager and told to desist. When assigning herself such extra hours it is evident that she did not take cognisance of the terms of her contract which specifically provides guidance on the requirements outlined under the Organisation of Working Time Act 1997. Furthermore, it is submitted that she did not adhere to the terms of her contract which clearly places an onus on the complainant to notify management of any missed rest periods/breaks within one week of such an occurrence which she failed to do.

The respondent submits that the complainant was fully aware of her breaks/rest entitlements and failed/neglected to avail of them. At no time did the respondent ‘require’ the complainant to work without availing of her breaks and it was through the complainant’s own actions that her rights to weekly rest periods were infringed.

Having carefully considered the evidence adduced in the within case, I find that the cognisable period for the within complaint is from 8 October 2019 up until 7 April 2020 the date on which the complaint was lodged.

Payment of Wages Act 1991 - CA-0035598-001

The complainant claims that she worked 4 to 5 hours per week during the rostered period weeks 28 to 46 of 2019 which were not paid for. She states that these were additional hours to her rostered hours. She claims that this work comprised price checking in two local shops on her way to and from work. The respondent refutes that this work took 4-5 hours per week and stated that it would take about 10 minutes to undertake said duty. Having carefully examined this claim I find that there was no evidence provided by the complainant to substantiate a breach of the Payment of Wages Act, accordingly, I find that this complaint is not well-founded.      

Organisation of Working Time Act 1997 - CA-0035598-003

It is alleged that the complainant did not get eleven hours rest between shifts on weeks 28, 35, 38 and 43 of 2019. Details of rest periods allegedly missed were provided by the complainant. 

I note, in relation to this complaint that the respondent submits that of the 8 breaches alleged by the complainant, only 3 falls within the 6-month statutory timeframe. Based on the submissions received and the witness testimony at the hearing, I find that the complainant has established a breach of the Organisation of Working Time Act and that this complaint is well-founded. I award compensation in the amount of €1000 for said breaches.

Organisation of Working Time Act 1997 - CA-00035598-004

The complainant alleges that she did not get her ‘proper weekly rest breaks on 4 occasions, weeks 28, 35, 38 and 43 of 2019. Details of weekly rest periods allegedly missed have been provided by the complainant. I note that the respondent submits that of the 4 breaches alleged by the complainant, only 1 fall within the statutory timeframe. Based on the information provided, I find that the respondent is in breach of the Act in respect of provision of weekly rest breaks. The cognisable period for the complaint is from 8 October 2019 until 7 April 2020 and accordingly there is one breach which falls within that period.  In this regard, I find that the complainant has established a breach of the Organisation of Working Time Act and that this complaint is well-founded. I award compensation in the amount of €500 for said breach.

Organisation of Working Time Act 1997 - CA-00035598-006

The complainant alleges that she worked 50.34 hours on average which is above the limit of 48 hours average. I am cognisant that at the hearing, the Manager Mr. G gave testimony in relation to the very real difficulties he was experiencing in relation to getting cover for absences on occasions and this tallies with the testimony of the complainant and is consistent with same in that she as a shift manager felt a responsibility to undertake these shifts in order to provide the requisite service for the business. Based on the totality of the evidence provided I find that the complainant has established a breach in respect of working excessive hours and accordingly I find that this complaint is well-founded.  I award compensation in the amount of €1000 for said breach.

Payment of Wages Act 1991 - CA-0035598-001

This complaint is not well-founded.

Organisation of Working Time Act 1997 - CA-0035598-003 – 11-hour rest breaks

I find that the complainant has established breaches of the Organisation of Working Time Act and accordingly, I find that this complaint is well-founded. I award compensation in the amount of €1000 for said breaches.

Organisation of Working Time Act 1997 - CA-00035598-004 – weekly rest breaks

I find that the complainant has established a breach of the Organisation of Working Time Act and accordingly I find that this complaint is well-founded. I award compensation in the amount of €500 for said breach.

Organisation of Working Time Act 1997 - CA-00035598-006 – working excessive hours

I find that the complainant has established a breach in respect of working excessive hours and accordingly I find that this complaint is well-founded.  I award compensation in the amount of €1000 for said breach.

Payment of Wages Act, Organisation of Working Time Act, rest breaks, excessive hours