Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Patric O' Reilly O'Reilly & Co Solicitors

Paul Gough Beauchamps

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-00036565-001

08/06/2020

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

CA-00036565-002

08/06/2020

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

CA-00036565-003

08/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036565-004

08/06/2020

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

CA-00036565-005

08/06/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997, and has submitted that he required to work more than the maximum permitted number of hours between the 1st September 2019 and 1st January 2020 (CA-00036565-001);

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997, and has submitted that in the course of his employment he was required to work overtime and was not given 24 hours notice of the requirement to undertake same (CA-00036565-005);

Complaints CA-00036565-002, CA-00036565-003 and CA-00036565-004 were withdrawn at the commencement of the hearing of this matter.

The Complainant commenced employment with the Respondent on the 26th June 2019 in the role of a welding/fabrications operative and his duties included welding, fabricating, cutting panels and fitting doors. The Complainant was paid €15.00 per hour.  The Complainants employment ended on the 17th January 2020.

In relation to CA-00036565-001, the Complainant submitted that from the commencement of his employment until October 2019, he was required to work from 7am until 5pm (Monday to Friday) with one  15 minute break and one 30 minute break. The Complainant also worked 7am until 1pm (Saturday) with one 15 minute break. During October 2019 and December 2019 the Complainant was required to work 6am – 6pm (Monday – Friday) with one 15 minute break and one 30 minute break and on Saturdays from 6am – 1pm with one 15 minute break. Occasionally, the Complainant would work on a Sunday from 7am – 1pm with one 15 minute break.

The Complainant submitted that in terms of the amount of hours he worked from 1 September 2019 to the date of his dismissal, copies of his payslips demonstrate that he worked in excess of the hours claimed by the Respondent. The total hours worked by the Complainant from September to December 2019 amount to 803.5 hours.

The Complainant submitted that if the reference period amounts to 17 weeks and using the revised figure of 803.5 hours this would give an average of 47.26 hours per working week which would be below the maximum working week as defined by Section 15 of the Organisation of Working Time Act, 1997. However, excluding annual leave of 12 days from the reference period reduces the reference period to 15.28 weeks which gives an average of 52.59 hours per working week which is above the maximum working week as defined by Section 15 of the aforesaid act. The Complainant submitted that if the Respondents premises were closed as opposed to the Complainant being on annual leave then the same calculation should take place.

The Complainant submitted that if the reference period is to be restricted to the last four months of his employment and excluding the period between 20th December 2019 and 13th January 2020 this would give an average working week between 52.72 hours per week and 54.94 hours per week which would be in excess of the time permitted by Section 15 of the Act.   

In relation to CA- CA-00036565-005, the Complainant submitted that the timesheets and payslips provided disclosed significant periods of overtime that he was required to work and he was not provided with the requisite notice before being required to work said overtime.

This Complaint was received by the Workplace Relations Commission on the 8th June 2020.

The Respondent operates in both this jurisdiction and the UK and is a provider of blast cold storage and mobile freezing units. The Respondent accepts the timeline in relation to the Complainants employment from the 26th June 2019 until the  20th January 2020.

In relation to CA-00036565-001, the Respondent submitted that the reference period chosen by the Complainant is the 1st September 2019 to the 1st January 2020  and  denies the Complainant was required to work more than the maximum permitted hours of work.

The Respondent confirmed that their business had a compulsory shutdown period between the 20th December 2019 and the 6th January 2020. The Respondent submitted  that Complainant had alleged he was requited to work during this period. Subsequently, the Complainant took annual leave between the 6th and 13th January 2020.

The Respondent submitted that according to time sheets they maintained, the Complainant worked 772 hours during the reference period and there were 17 weeks in that 4 month reference period. Therefore, the Complainants working week was 45.41 hours which was below the maximum working week as defined by Section 15 of the Act.

In relation to CA-00036565-005, the Respondent submitted that according to time sheets they maintained the last occasion on which the Complainant worked overtime was the 5th December 2019.

In relation to the generality of the Complaints, the Respondent submitted that any allegations referring to a period more than 6 months prior to date that the Complaints were submitted , 20th June 2020, were statute barred. In essence, this means that any complaints regarding alleged contraventions which took place prior to the 8th December 2019 are statute barred pursuant to Section 41(6) of the Workplace Relations Act, 2015.

It is the Respondents position that the Complainant is not entitled to succeed in any of the claims made in the course of this matter.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of the hearing by both parties.

CA-0036565-001

The Complainant is claiming that the Respondent breached the Act and required him to work more than 50 hours per week.

Section 15 of the Organisation of Working Time Act 1997 provides

“Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— 

(a) 4 months, or 

(b) 6 months— 

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

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

or

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

(4) A reference period shall not include:

(a) any period of annual leave granted to the employee concerned in accordance with this Act

The Labour Court in the case of Svoboda v IBM Ireland DWT0818 stated in relation to the above cited section: 

“It is noteworthy that the section provides that an employer shall not “permit” an employee to work in excess of 48 hours per week. The obligation created by the Act is, therefore, directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours. It further appears from the language of the Section that it imposes a form of strict liability (it does not provide that an employer may not knowingly permit). This construction of the Section is consistent with the object pursued by Directive 93/104/EC, which the Act transposed in to Irish law. That objective, as stated in Article 1 of the Directive, is to lay down minimum safety and health requirements for the protection of those at work.” 

Therefore, there is a strict onus on an employer to ensure that the provisions of section 15 are complied with.

Section 27(3) of the Organisation of Working Time Act 1997(Act) states: 

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

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

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

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

I am satisfied from the documentation produced by the Complainant that he worked an average of 52.59 hours per working week .  I am satisfied that the Complainants was required to work hours more than 48 hours per week and this is a breach of Section 15 of the Act. I find therefore that the complaint is well founded.

Having regard to the seriousness of the breach of the Act, and taking into consideration this Complaint was received by the Workplace Relations Commission on the 8th June 2020, an award of compensation to the Complainant in the amount of €1,500 is just and equitable in the circumstances

CA-0036565-005

The Complainant is claiming that the Respondent breached the Act and required him to work overtime and was not given 24 hours notice of the requirement to undertake same.

Section 17 of the Organisation of Working Time Act 1997(Act) states: 

Provision of information in relation to working time.

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.

In relation to this Complaint and taking into consideration that this Complaint was received by the Workplace Relations Commission on the 8th June 2020, I am not satisfied that the Complainant was not provided with the requisite notice before being required to work any overtime and accordingly this Complaint is not well founded.

I find that the Complaint (CA-00036565-001) is well founded and I award the Complainant compensation in the amount of €1,500.00 pursuant to Section 27(3) of the Organisation of Working Time Act, 1997.

I find that the Complaint (CA-00036565-005) is not well founded.

Working hours