Complainant

Respondent

Parties

Kristijan Mikac

Michael O'Connor Transport Limited

Representatives

Self-represented 

Peninsula Business Services

Act

Complaint 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-00043394-001

05/04/2021

The complainant worked for the respondent between the 4th February 2019 and the 26th February 2021. He serviced HGVs operated by the respondent. He worked from 8am to 6pm Monday to Friday and 8am to 1pm on Saturdays. At busy periods, he worked all weekend.

In evidence under affirmation, the complainant said that the handwritten note submitted by the respondent appeared accurate, although only recorded dates he finished work early and not the times he worked late. The complainant outlined that he had an agreement with the respondent that the hours of overtime he worked would be paid to him as additional annual leave. This did not take place as he was always paid €1,100 per week. He said that he worked 500 hours of overtime during his employment.

The respondent relied on HSE v McDermott [2014] IEHC 331 to argue that as the complainant had not framed the complaint according to a specified period, no award could be made even if a contravention occurred in the limitation period. Alternatively, the respondent submitted that the complainant had been paid in full for his annual leave.

The respondent submitted that there was no Payment of Wages claim before the adjudication. The role was 9 hours per day Monday to Friday and five hours on a Saturday. The respondent showed the complainant flexibility regarding his hours. The respondent director said that in 2021, he introduced time sheets to record working time and he might still have the time sheets.

This is a complaint pursuant to the Organisation of Working Time Act. As set out in section 41 of the Workplace Relations Act (the enabling provision in respect of OWTA complaints), it is the duty of the adjudication officer to inquire into the complaint. An adjudication officer discharges this duty by hearing from the parties, by identifying possible contraventions and in deciding whether a complaint is well-founded.

I agree with the respondent submission that there is no Payment of Wages complaint encompassed in this case. HSE v McDermott addressed cognisable periods in claims under the Payment of Wages Act, not the Organisation of Working Time Act. The question in this case is whether there has been a contravention of the Organisation of Working Time Act.

The Organisation of Working Time Act regulates working time. It transposes EU law (Directive 2003/88/EC and previously Directive 93/104/EC). It sets out important employment rights, for example to annual leave or a maximum working week. These rights are underpinned by the EU Charter of Fundamental Rights (Article 31).

The complainant was clear that this complaint related to his hours of work. It was not disputed that the complainant’s regular hours were 8am to 6pm, Monday to Friday and 8am to 1pm on a Saturday. The three-page handwritten note set out occasions the complainant worked less than these hours. The parties differed as to how much additional work the complainant did beyond these hours. The respondent accepted that there was some such additional work, but not to the extent suggested by the complainant (for example, one full weekend in March 2020, and not the three suggested by the complainant).  

This complaint is about the complainant’s hours of work. I accept that the complainant was paid his annual leave; there was no contravention of section 19. Section 15 of the Act provides a 48-hour maximum working week, calculated over a reference period, typically four months. It was agreed that the complainant’s working pattern was 50 hours per week, with some occasions of shorter hours and the disputed additional work above that. It is not disputed, therefore, in this case, that there was a contravention of section 15. The Act provides for a 48-hour maximum working week and the complainant’s working pattern was longer. The handwritten note refers to days of shorter hours and several occurred in the cognisable period of this claim (the six months prior to the lodging of the complaint). These dates are the 19th October (finish at 3.30pm [2.5 hours less than the full day]), the 22nd November (start at 9.30am [1.5 hours]), the 11th December (finish at 3pm [3 hours]), 18th December (half day [4.5 hours]) 2020, 6th January 2021 (finish at 1pm [5 hours]) and 10th January 2021 (start at 9am [1 hour]). The complainant took six days of annual leave over Christmas 2020.

The cognisable period is the 6th October 2020 to the 4th April 2021, bearing in mind that this employment ended on the 26th February 2021. Apart from the handwritten note, working time records were not submitted. The burden, therefore, falls on the respondent to show compliance (section 25(4)). It was not disputed that the complainant’s working week was 50 hours, i.e. in excess of 48 hours. This was the regular rostered working week. This discloses a contravention of section 15 of the Act and reflects the nub of the complainant’s complaint – that he worked additional hours in the cognisable period apart from the above dates he worked shorter hours. He generally worked two hours in excess of the maximum. To the extent of a contravention in the cognisable period, I award compensation of €1,500.

CA-00043394-001

Having inquired into the complaint, I decide that the respondent shall pay to the complainant €1,500 for the contravention of the Organisation of Working Time Act.

Organisation of Working Time Act / duty to inquire