Complainant

Respondent

Parties

Shahzad  Anwar

Circle K (Ard Services Ltd)

Representatives

Keans Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036581-001

05/06/2020

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

CA-00036581-002

05/06/2020

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

CA-00036581-003

05/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00036581-004

05/06/2020

The complainant has submitted three complaints under the Organisation of Working Time Act, 1997 and a complaint under the Unfair Dismissals Acts 1977-2015.

 The complainant commenced employment with the respondent on the 1 December 2004. He has been employed as service station manager from April 2011 until his dismissal on 12 December 2019.

His gross monthly salary is €3850.

He submitted his complaint to the WRC on 5 June 2020.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-001

 Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-002

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-003

The Respondent submits that the above complaints, CA-00036581-001, CA-00036581-002 and CA-00036581-003 are statute -barred.

The complainant lodged his complaint on 5 June 2020. He was suspended with pay on the 13 November 2019 and dismissed on the 11 December 2019. The referable period is the 6 December 2019 to the 5 June 2020. He did not work during this period.

The respondent states that section 41(6) of the Workplace Relations Act 2015 deprives the adjudicator of jurisdiction to hear these complaints especially given that the complainant was in receipt of legal advice prior to the lodgement of his complaints.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-001

 Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-002

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-003

The Complainant’s representative objected to the fact that the respondent had only notified him of the jurisdictional issue sixteen hours prior to the hearing and that as a consequence, he had insufficient time to consult his client so as to make an argument for an extension of time on the basis of “reasonable cause”, as provided for in section 41(8) of the Workplace Relations Act 2015.The complainant’s solicitor requested that he be permitted to make a written submission based on established authorities which he did not have to hand. These supplemental submissions were received, as agreed, on 28 September 2021.

 The complainant’s solicitor in his supplemental submission relies on the principles set out in Salesforce.com v Leech EDA 1615 which stated

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time”

The complainant is not a native English speaker. At the time he lodged his complaint he was not in receipt of legal advice. Nor was he aware of the statutory time limits. He engaged his solicitor long after he had submitted his complaint. The respondent was aware of the complaint and suffers no prejudice by virtue of this late submission or by allowing an extension of time. No advantage falls to the complainant were section 41(8) of the Workplace Relations Act 2015 to be allowed operate in his favour. The complainant’s solicitor submits that the evidence shows that complainant meets the requirements for the operation of section 41(8) of the Workplace Relations Act 2015i In his favour, as set out in Salesforce.com.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-001

 Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-002

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-003

I accept that based on the submission of the complaint to the WRC on the 5 June 2020, and in accordance with section 41(6) of the Act of 2015, the referable period for any alleged breaches of the Organisation of Working Time Act, 1997 is 6 December 2019- 5 June 2010. It is accepted that the complainant did not work after the 13 November.

I must decide if section 41 (8) of the Act of 2015 allows me to consider if any breaches of the Act occurring between 7 June and 6 December 2019 are admissible.

Relevant Law

Section 41 (8) states

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

The leading case on what constitutes reasonable cause is found in Cementation Skanska v Carroll (DWT 38/2003) which determined that it is for the claimant “to show that there are reasons which both explain the delay and afford an excuse for the delay. The Labour Court also added “there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”. 

Applying this test to the circumstances of the instant case, the complainant’s explanation for the delay is that he was unaware of the statutory time limits. He has only a reasonable knowledge of English.  The respondent was on notice of the complaints.

In Galway & Roscommon ETB v Josephine Kenny UDD1624, the Court in dealing with that complainant’s misunderstanding of the statutory time limits relied on the decision of the Minister for Finance v CPSU and Ors [2007] 18 ELR 36, where the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.

While the complainant has given an explanation for the delay, the established authorities require that the reasons proffered amount to a justifiable excuse for the delay.

Based on the evidence and the authorities, I am unable to find that the reasons advanced by the complainant for the failure to comply with the statutory time limits afford an excuse for the delay.

I find that I do not have jurisdiction to hear the complaints of contraventions of the Organisation of Working Time Act, 1997.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-001

I find that I do not have jurisdiction to hear this complaint.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-002

I find that I do not have jurisdiction to hear this complaint.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-003

I find that I do not have jurisdiction to hear this complaint

I will proceed to adjudicate on the complaint submitted under the Unfair dismissals Acts 1977-2015

Complaint under Section 8 of the Unfair Dismissals Act, 1977. CA-00036581-004.

At the outset, the complainant’s solicitor identified a witness, a former employee, unable to attend the hearing today, but who would be available on the 8 September to give evidence on the standard practices within the company. The WRC had no notification of this witness nor of her unavailability prior to the hearing on the 7 September. The complainant’s solicitor stated that the WRC had been notified of the need for this witness to give evidence.

Direct evidence of complainant.

The complainant commenced employment with the employer in 2004 and became a service station manager in 2011. He enjoyed a good relationship with his employers and never received any criticism of his work or conduct until 2019. He took great pride in the brand. As manager he was responsible for ensuring that the shifts were staffed.

His problems began when the employee scheduled to work the night shift on 16 September resigned. The replacement employee resigned after 3 days. Initially a colleague identified another employee who could do the night shift from 11pm to 7am.However, he proved unable to do the shift. The complainant contacted many of his colleague managers in other service stations to try and source a person for the vacant shift on the 16 September. None were available. He then decided to try an employee in one of the respondent’s other stations to do the shift. He agreed. The complainant paid him out of his own pocket.  He paid for his fuel costs. He accepts that on 16, 22 September and on the 26 October, he did enter that he had worked on these dates on the Time Grip system which was the system used to record working hours, but actually engaged three other employees to cover the shifts. He accrued no financial benefit from this arrangement as he paid the persons whom he engaged to cover the station on these nights.

The reason he made these choices was because was he had charge of his young 10-year-old son on the nights in question. He could not leave him alone. The complainant lives alone. The second reason was that he did not want the station to close. Previously if the employee scheduled to work the night shift was unable to work and the complainant was unable to source a replacement, he would do the shift himself even though he may have already worked the earlier 7am - 3pm shift. At this time, he was also experiencing financial and accommodation problems.

Incorrect entry of hours for the period 7 October – 3 November.

The system in place is that if he works a shift, and if work is incomplete, he must stay to finish the work. However, if his work is finished before the end of the shift, he is permitted to leave. Time in lieu is given in relation to extra shifts / hours worked.

He stated that at a meeting for station managers in November 2018, the area managers instructed  the station managers on how to record hours so that they would not amount to a breach of the Organisation of Working Time Act, 1997 .He works six days a week. The complainant stated his line managers had told him that it was not necessary to record extra hours over and above the 8 hours shifts on the Time Grip system.

In cross examination the complainant accepted that for the period 7 October – 3 November, he had claimed and was paid for 150 hours (including the four 8 hour shifts on which he had deployed other employees and paid them out of his own pocket) but had worked 100 hours and 23 minutes. The complainant stated that the almost 50 hours for which he claimed though had not worked were for time in lieu and were in respect of the many extra hours which he had worked.

The complainant throughout the disciplinary process acknowledged his actions.

The complainant took up a new job in 24 February 2020 for a period of 6 months. When that concluded he took up a position for 13 months. The salary in both positions was less than €40,000 PA.

He is seeking compensation for this breach of the Unfair Dismissals Act, 1977.

Complaint under Section 8 of the Unfair Dismissals Act, 1977. CA-00036581-004.

The respondent operates a chain of convenience stores and fuel stations.

The respondent denies that the complainant was unfairly dismissed. He was dismissed for falsifying his work records, for endangering the respondent ‘s reputation and for a breach of trust. He was dismissed following a rigorous, thorough process, conducted fairly and transparently, in accordance with fair procedures and natural justice and in line with the respondent’s policies.

He held the position of Service Station Manager. The position involved the overall management of the service station including the effective running of the forecourt shop, food counter and car wash and matters pertaining thereto.

He failed to work the hours which he recorded as having worked.

On 16 September the complainant was rostered to work a split shift; 07.00-15.00 and 23.00- 7.00. He did not work on this night shift and engaged and paid another person out of his own pocket and outside of the prescribed Time Grip system. The person he asked to cover the night section of this shift was employed in another of the respondent’s stations. He was employed on a Stamp 2 type visa which imposes a ceiling of 20 hours work per week. On the 22 September, the same employee covered the complainant’s shift. On the 26 October, the complainant paid another employee out of his own pocket because the employee stated that his manager would be angry If he entered the hours on the Time Grip system. The complainant stated he was not clear if the employee’s hesitance was to do with overtime, visa or student issues. In all, the complainant arranged for four shifts for which he claimed payment, but which were covered by 3 employees who were on Stamp 2 type visas which only entitles them to work 20 hours per week. He paid these three employees out of his own pocket.

Further breaches of the recording of hours occurred on the 12 October where the complainant worked 5 hours twenty minutes, but logged that he had worked 8 hours, on 22 October when he worked 2 hours and not the 6 hours which he entered. On 29 October, the complainant failed to turn up for work but claimed for and received payment for the 8-hour shift. His explanation for the extra hours claimed, though not worked, was that it was time in lieu.

The respondent put forward 3 witnesses.

Witness 1. Head of Retail, Execution and Support.

The witness conducted the preliminary investigation on 14 November into the alleged falsification of working hours by the complainant. Specifically, the meeting was to investigate the complainant’s claims that he had worked on three specific dates when evidence available to the respondent showed the contrary. The second issue for investigation was that the actual hours worked by the complainant on a specific number of dates from 7 October to 3 November were below what he logged and claimed for. The complainant was given the option of representation.

The complainant admitted to the witness that other employees had covered his shifts on four occasions.

The witness submitted that it is important that the respondent, a global company, complies with the rules for example, a maximum of 20 working hours per week for persons on a Stamp 2 visa. The complainant declined to tell the witness at this meeting if the persons who he arranged to cover for him on the four occasions were employees of the company.

The witness accepts that it is often a struggle to fill shifts in the retail sector. The company expects the station manager to contact his own teams to see if anyone would be willing to work extra shifts. There were 7-8 sites within a 5-mile radius of the complainant’s site on which he could have called. If that failed, the complainant should have rung the witness who was his line manager. Contrary to what the complainant asserts, it has never happened that he has had to close a site in order to staff the shifts.

Cross examination of the witness.

The witness confirmed that he was not aware that any of the 153 stations managed by the respondent had ever had to close down because of insufficient staff.

The witness stated that staff were not required to stay beyond closing time to finish work.

The witness stated that he was not aware that HR had asked the staff not to record extra hours in order to avoid a reduced bonus for the managers, or to omit to record working hours so as to avoid any complaint of a breach under the Organisation of Working Time Act, 1997. The witness stated that he had never heard of an instruction given to managers to this effect at the end of 2018.

Where a staff member works in excess of his contracted hours, they are to be taken back as time in lieu but must be recorded on the company’s Time Grip system.

The witness confirmed that he found the complainant to be an honest employee between the period 2011- 2019. He had no issue with him.

The witness agreed that as the complainant paid the employees who were covering for him on the four shifts on which he did not work but for which he was paid, there was no financial gain for the complainant.

The witness decided that the disciplinary procedure should be activated against the complainant for the breaches of company procedure and breach of trust.

Witness 2. Senior Business Partner, HR.

The HR department has fifteen employees.

She dealt with the employee issues in 2018. She stated that contrary to what the complainant asserts, she had not received any complaints of stress from employees. She cannot recall if she attended the November 2018 meeting at which the complainant alleged that instructions issued to station managers not to record hours in excess of rostered hours. Another HR executive may have met him. She has never heard of this practice. The HR department monitors employee hours to ensure compliance with the Organisation of Working Time Act, 1997.

Witness 3. Sales Market Manager, Dublin South Region.

He is responsible for 16 sites in this region.

He conducted the disciplinary meeting on the 5 November 2019. Its purpose was to consider the complainant’s response to the charge of a breach of company procedures and falsification of   his attendance records and or company payroll documents.

There is a process which an employee must follow when cover is required to fill a shift. There is a vertical line up to the line manager when difficulties arise. It would be permissible to close a store, say, in the event of a power failure but otherwise alternative arrangements should be implemented.

He confirmed that the complainant stated at the hearing that his actions were borne out of desperation.

He confirmed that the complainant did not contest the facts. But the complainant never stated at the hearing that he was merely following the instruction given at the meeting convened by the HR department in November 2018 not to record extra hours.

In cross examination the witness stated that with the exception of a closure in the UK in 2008 he had never heard of a station having to close because of insufficient staff.

He accepted that the complainant had never benefited in any way from making these irregular cover arrangements.

The witness attended some area meetings of managers at which the complainant and HR attended, and he never heard of any instruction being issued not to record extra hours on the Time Grip system.

The witness stated that the HR department is compliant with visa regulations. HR monitor employees’ hours to ensure compliance with the Organisation of Working Time Act, 1997.

As the allegations were not contested by the complainant, he decided that the complainant should be dismissed.

Witness 4. Senior retail Director.

He conducted the complainant’s appeal on 8 January 2020 against the sanction of summary dismissal. The respondent reassured the complainant that any person accompanying him would be protected against victimisation- a fear expressed by the complainant by way of explaining that he would attend the appeal hearing alone. The witness offered to adjourn the appeal hearing.

During the appeal hearing the complainant never stated that he was merely implementing company practice as is now being alleged. He may have made a vague reference to what happened previously. The complainant’s solicitor interjected to object to any suggestion of serious wrongdoing on the complainant’s part and wanted it noted that he objected to the adjudicator’s intervention.

The complainant did refer to managers in years past, without naming them, and could not name any manager of more recent vintage who had permitted him to record hours in this manner.

The complainant at the appeal did speak of the difficult times he was experiencing.

Having considered the complainant’s submissions, the witness decided to uphold the dismissal.

Legal Authorities.

it is the Respondent’s position that the complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. He was dismissed because of misconduct as provided for in section 6(4)(b) of the Acts.

The respondent relies on Looney V Looney UD/834/1984 which held that the function of the Tribunal is

“to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged”

The respondent also relies on Moore v Knox Hotel and Resort Ltd., UD 27/2004 which found that the complainant, a person in a management position, misled the employer as to her attendance. The Tribunal found that

“the complainant’s actions destroyed the respondent’s trust and confidence and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”

In the event that that the adjudicator was to find that the dismissal was unfair, the respondent asks that no redress be awarded as the complainant contributed to his own dismissal. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal decided not to award any redress to the complainant in light of his inappropriate actions.

The respondent asks the adjudicator to accept that the dismissal was not unfair.

Complaint under Section 8 of the Unfair Dismissals Act, 1977. CA-00036581-004.

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)      n/a

b)     the conduct of the employee”

In examining if the dismissal was unfair, I must examine the grounds used by the respondent to justify the dismissal and the procedures used to effect the dismissal.

Grounds for dismissal.

The complainant was dismissed for gross misconduct on four counts:

for claiming salary for four shifts on which he had not actually worked, but for which he had engaged and paid three employees to staff these shifts,

for ignoring the requirement to ensure that employees in possession of Stamp 2 visas did not work in excess of 20 hours per week,

for entering and claiming for 150 hours on the Time Grip system during the period 7 October – 3 November 2019 when he had only worked 100 hours.

The complainant did not contest these allegations.

The respondent contends that the complainant’s actions destroyed the trust and confidence to which they are entitled and compromised the reputation of the employer by the aforesaid practices.

It is accepted that the complainant could have difficulty in sourcing a replacement to staff a shift. It is accepted that in those circumstances, there was a process which the complainant should activate. The complainant’s evidence of an unreceptive response on previous occasions to seeking assistance was not contradicted.

Ignoring the rules concerning Stamp 2 visas.

Employing a student beyond the 20 hours permitted on this visa is an offence under the Employment Permits Acts 2003-2006.I accept that the respondent’s reputation could be damaged by having employees in possession of Stamp 2 visas working in excess of the 20 hours a week limit.

Claiming for hours which he did not work.

This is a further ground underpinning the respondent ‘s decision to dismiss the complainant. What is contested between the parties is the legitimacy of the complainant claiming 50, undocumented hours payment for hours for which he did not work, with the complainant contending that the area managers at a meeting in November 2018 and thereafter, encouraged station managers not to record hours in excess of rostered hours so as to maintain compliance with the Organisation of Working Time Act, 1997. Therefore, the complainant who had not recorded hours worked in excess of his 8-hour shifts could, according to his evidence, take the 50 extra hours as time in lieu with no necessity to document the dates on which he had worked the extra hours and when he took the time in lieu.  The respondent refutes this. The complainant was unable to name the person who had given this instruction to him.  Nor did he present this argument at any stage during the investigative, disciplinary or appeal process. The complainant did not put forward the dates on which he had worked the extra 50 hours in September and October- the reason for his decision to either leave before his shifts were complete or to claim a day’s pay when he could not show up because of a faulty car.

The complainant’s argument that he was merely following company policy, which excused him from having to document when he worked the extra hours and the dates on when he was taking time in lieu is undercut by the fact that he did record time in lieu on three separate days as evidenced in his time sheets; 29 April, 5 June and 14 October. Furthermore, the hours which he logged in the Time Grip during the relevant period fail to demonstrate that 50 hours were owed to him. I have no reason to doubt that his work stretched beyond 8 hours on occasion, but I accept that he was expected to record these hours.

While the anxiety and panic that induced him to assign employees from other stations to fill shifts left vacant at the last minute, which he himself could not work  was short-lived, his logging of hours and claim for salary for same was sustained over a four week period , attributable, he states, to faulty cars, a brother’s ill health, his son’s ill health and a misplaced understanding that he was not required to complete his eight hour shifts if work was completed.

On the basis of the evidence, I find that the complainant forfeited the respondent’s trust and confidence.

I find that the respondent’s decision to dismiss was within the range of reasonable responses open to it and substantial grounds did exist as required by section 6(4) of the Acts to justify the complainant’s dismissal.

Procedural fairness.

Section 6(7)(a) of the Unfair Dismissals Act 1977 (as amended) requires that in determining if a dismissal is an unfair dismissal,

“regard may be had, if the Adjudication Officer or Labour Court considers it appropriate to do so-

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d)(inserted by Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act “.

While it is regrettable that the complainant was in such pressurised circumstances, incorrect entries on the time sheet are actions which are classified in the respondent’s disciplinary policy as instances of gross misconduct and are actions which may result in dismissal.

The disciplinary process was conducted according to the respondent’s policy. He was notified of the allegations against him, offered the right of representation, provided with the documentary evidence underpinning the respondent’s decision to dismiss him, was given an opportunity to give an explanation and to set out mitigating circumstances. He was offered and exercised the appeal option.

The conduct of the employer also encompasses the proportionality of the sanction in the context of his previously unblemished 15 years of service, his financial and domestic difficulties. But his response to his difficulties was to formulate responses which were seriously in conflict with what the respondent was entitled to expect of him as a manager tasked with ensuring staff compliance with company rules. I find that the forfeiture of the respondent’s trust and confidence as a result of his behaviour outweighs the mitigating circumstances advanced by the complainant.

Taking into account the actions of the complainant and the conduct of the respondent, the applicable legal test in determining if the dismissal was unfair is the “band of reasonable responses “test set out in the High Court case of The Governor and The Company of Bank of IrelandV James Reilly IEHC 241, where Mr Justice Noonan in the context of section 6 of the Unfair Dismissals Act 1977, and in finding for the complainant,  stated

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) which includes the conduct of the employee. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is not to say that that the court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

On the basis of the evidence and the authorities, I find that the actions of the respondent were within the range of reasonable responses open to it. I find that the respondent complied with their own disciplinary procedure and with the requirements of S.I. No. 146/2000.

I do not find this complaint to be well founded

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-001

I find that I do not have jurisdiction to hear this complaint.

 Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-002

I find that I do not have jurisdiction to hear this complaint.

Complaint under section 27 of the Organisation of Working Time Act, 1997. CA-00036581-003

 I find that I do not have jurisdiction to hear this complaint.

Complaint under Section 8 of the Unfair Dismissals Act, 1977. CA-00036581-004.

I do not find this complaint to be well founded.

Statue barred complaints; Unfair Dismissal; loss of trust and confidence