ADJ-00034485

Complainant

Respondent

Parties

Brian  O'Sullivan

Ellab Ireland

Representatives

  In person

 Peninsula

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-00045427-001

28/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045427-002

28/07/2021

The complainant was employed by the respondent as a Service Co-ordination Manager from on or about 27th July 2020 until his resignation on 11th June 2021. The complaints were submitted to the Workplace Relations Commission on 28th July 2021 and relate to alleged breaches of the Organisation of Working Time Act, 1997 in respect of weekly working hours and an alleged breach of the Terms of Employment (Information) Act, 1994 in respect of written notification of changes to the complainant’s terms and conditions of employment.

Note: The complainant also submitted a further complaint of constructive unfair dismissal under the Industrial Relations Act, 1969. The respondent objected to a hearing of this complaint in line with the provisions of Section 36(1) of the Industrial Relations Act, 1990 and given the voluntary nature of industrial relations legislation an Adjudication Officer has no further role in investigating such a complaint once an objection has been received. 

In respect of the complaint under the Organisation of Working Time Act, 1997 the cognisable period of the complaint is the six months immediately prior to the complaint being submitted to the WRC (29th January 2021 – 28th July 2021)

The complainant outlined in his written submissions that he was employed as a Service Coordination Manager and also had some involvement in office management, the HR function and the validation management system. The complainant asserts that such was his level of responsibility that he was required to work in excess of the maximum weekly hours of work provided for in the Organisation of Working Time Act, 1997.

The complainant stated that he began to record additional hours of work on 5th October 2020 and between that date and 18th December 2020 he worked a total of 571.5hours.

In respect of the period 11th January 2021 to 19th February 2021 the complainant stated that he worked a total of 301.5 hours and in the period of 22nd February 2021 to 21st May 2021 he worked a total of 499 hours. 

The complainant asserts that in the four-month reference period from October 2020 to February 2021 he worked an average of 53 hours per week which is in excess of the maximum working week of 48 hours permitted by the legislation.

The respondent contends that in line with the provisions of 41(6) of the Workplace Relations Act, 2015 in respect of time limits, any alleged breaches of the legislation prior to the 29th January 2021 are outside of the cognisable period of the complaint and are therefore statute barred.

In respect of the complainant’s working hours, the respondent stated that the records provided through the complainant’s timesheets show that he worked an average of 40 hours per week and where additional hours were worked, this was by way of overtime which was agreed in advance with the employer. The respondent contends that none of the records submitted show that it has breached the legislation as claimed.

I have given careful consideration to the submissions of both parties to this complaint.

I note that a portion of the hours of work submitted by the complainant is outside of the cognisable period of this complaint.

The Applicable Law

Section 41(6) of the Workplace Relations Act, 2015 states as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 15(1)of the Organisation of Working Time Act, 1997 states as follows:

(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.

In his complaint form, the complainant refers to a reference period of October 2020 to February 2021 where he claims to have worked beyond the weekly maximum hours per week as provided by Section 15 of the Organisation of Working Time Act, 1997. The complainant asserts that he worked an average of 53 hours per week during this period.

In his written submissions the complainant specifies three periods where he contends the respondent has breached the legislation with respect to his weekly working hours. The period of 5th October 2020 – 18th December 2020 is outside of the cognisable period and cannot be considered.

The first period that is partly reckonable outlines hours of work of 301.5 from 11th January 2021 – 19th February 2021. However, 18 days of this period (11th Jan 2021 – 28th Jan 2021) are outside of the cognisable period of the complaint. The remaining 22 days (29th January 2021 – 19th Feb 2021) are within the cognisable period and the total hours of work for this period, pro rata would amount to 165.83 hours over this 4.4-week period. This amounts to weekly working hours of 37.7 hours of per week which is not in breach of Section 15 of the Organisation of Working Time Act, 1997.

The second period outlined by the complainant shows 499 hours of work from 22nd February 2021 -21st May 2021 which is entirely within the cognisable period of the complaint. However, when dividing 499 hours by this 13-week period the average working hours per week are 38.4hours. This is not in breach of Section 15 of the Organisation of Working Time Act, 1997.

In all of the circumstances of this complaint, the complainant has not identified a breach of the legislation with regard to the reckonable periods he referenced in his complaint. Accordingly, the complaint cannot succeed.

Having considered the submissions of both parties, I find that there has been no breach of the legislation identified by the complainant within the cognisable period of the complaint. Accordingly, the complaint is not well founded.

The complainant contends that there were significant additional responsibilities pertaining to his role within the organisation that went way beyond the service-related role that he was employed for. The complainant stated that he had additional responsibilities in respect of the office management and HR functions as well as the validation management system. The complainant contends that he should have received written notification of the changes to his terms and conditions of employment in line with the provisions of Section 5 of the Terms of Employment (Information) Act, 1994.

The respondent contends that it has not breached the legislation as claimed. The respondent stated that the complainant’s terms and conditions of employment require flexibility in respect of working across departments. The respondent also contends that it was the complainant himself who took on extra roles and responsibilities within the organisation but that these were appropriate to the Service Co-Ordinator Manager role.

The respondent cited Adjudication Decision ADJ-00028717 A Security Officer v Security Service Provider which found that:

The complaint herein is not well founded as the complainant’s contract allows for flexibility and alteration in line with client requirements and demands.

The respondent concluded by saying that all duties carried out by the complainant were covered by the flexibility clause within the complainant’s terms and conditions of employment and the document pertaining to the roles and responsibilities of the Service Co-Ordination Manager. On that basis the respondents stated that it did not make any changes to the complainant’s terms and conditions of employment and therefore no requirement existed to provide written notification to him.

The complainant asserts that he should have received written notification of the changes to his terms and conditions of employment in line with the provisions of the legislation.

The Applicable Law

Section 5(1) of the Terms of Employment (Information) Act, 1994 provides as follows:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The complainant contends that he should have received written notification of each change and as each new role was undertaken by him. The respondent contends that all roles undertaken by him were in line with his terms and conditions of employment and the flexibility clause contained therein.

The complainant’s statement of employment relating to job flexibility states as follows:

It is an express condition of employment that you are prepared, whenever necessary to transfer to alternative departments or duties either on a temporary or permanent basis within our business. This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential from our work force.

I further note that in relation to the document concerning the complainant’s roles and responsibilities the following at relevant parts is provided:

As a Service Co-Ordination Manager, you will be primarily responsible for the management of personnel and teams working at several different sites – The Service Co-Ordination Manager will also be responsible for the sourcing and management of new personnel.

Accountable for developing a high performing team culture within the team through defining expectations, goals and outcomes with team members.

Skills: Operational Management, Staff Management, Escalation Management, calibration manager, service manager, contracts manager, hr manager, Human Resources, calibration supervisor, calibration coordinator, client manager. 

Having considered the submissions of both parties, I find that the tasks undertaken by the complainant throughout his employment were within his job specification, were covered by the job flexibility clause of his terms and conditions of employment and were appropriate to the senior role of Service Co-Ordination Manager that the complainant held. On the basis of the complainant’s role and responsibilities, I find that the level of duties carried out by him did not change and therefore did not require further written notification from the employer.                                                                                                                              

For the reasons outlined above, I find that there has been no breach of the legislation by the respondent and accordingly I find that the complaint is not well founded.

 maximum weekly hours of work, written notification of changes to terms and conditions of employment.