Complainant

Respondent

Parties

Agnieszka  Mialkowska

Lombard Shipping Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Dylan Mooney – Independent Workers’ Union

No Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050663-001

17/05/2022

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

CA-00050663-002

17/05/2022

The Complainant worked for the Respondent as a Sales Ledger Clerk from the 9th September 2021 until the 28th January 2022. Her salary was €40,000 gross per annum. The complaints were referred to the WRC on the 17th May 2022 wherein the Complainant alleged that the Respondent owed her a significant amount of compensation as regards to over-time hours.

CA-00050663-001 – Payment of Wages Act 1991

The Complainant commenced work with the Respondent on the 9th September 2021 as a Sales Ledger Clerk. Her employment was terminated on the 28th January 2022 as the Respondent stated her performance was below what it held to be the expected standard. The Complainant, upon being dismissed, requested in writing that she be paid outstanding wages owed to her. The Respondent claimed that she was not due any payment. She informed the Respondent that it had data in its electronic systems that would support her claims. She asked that all data relevant to her be provided in accordance with GDPR. According to the Complainant the Respondent has yet to respond, and the Complainant is pursuing the matter through the Office of the Data Protection Commissioner and it is for this reason the sum allegedly owed of €21,735 is an estimated figure made on the basis of an honest assessment by the Complainant in the absence of electronic evidence which the Respondent has yet to provide. In the Complainant’s job contract it was stated that “The Respondent's policy is that each of its employees must be flexible and willing to do any job that needs to be done (whether skilled or unskilled, or outside the scope of your normal duties.” However, the Respondent also tried to get such work on the cheap or gratis. The contract further stated “Hours worked above the minimum will not be additionally paid as your salary level has already taken such requirements into account.”

According to the Complainant she worked 8.30-17.30 and then spent time with reports up to 23.00 nearly each working day plus Saturdays in order to have them ready. A record has been retained on the C Drive of the Respondent's laptop system. The Respondent also has other data which the Complainant has requested but which the Respondent has failed to provide her with. According to the Complainant she calculated that for 17.5 weeks X 5.5 overtime a day for five days and 8.5 hours on Saturday X 1.5 amounts to 630 hours of overtime makes 945 hours due to pay.

CA-00050663-002 – Organisation of Working Time Act 1997

The Complainant commenced work with the Respondent on the 9th September 2021 as a Sales Ledger Clerk. Her employment was terminated on the 28th January 2022. It is the contention of the complainant that she worked between 8.30-17.30 and then spent time with reports up to 23.00 nearly each working day plus Saturdays in order to have them ready. She also worked overtime in the evenings and at weekends and stated that the Respondent asked her to do this. The Complainant had to complete reports manually from Azyra. The system was not properly updated for sales ledger activity. There was insufficient time during the working day in which to complete these tasks. Despite the Respondent being aware of this it still sent the Complainant 800 invoices to process one day before the month’s end. A record has been retained on the C Drive of the Respondent 's laptop system. The Respondent also has other data which the Complainant has requested and which the Respondent has failed to provide her with. The Complainant felt compelled to work in excess of what is permissible under the Organisation of Working Time Act 1997 and the Respondent showed no regard for the Act. The Complainant stated that she believed the data retained by the Respondent would show that for the period of time she worked for the Respondent the Respondent breached the Organisation of Working Time Act 1997 by having her work in excess of the 48 hours per week over a work reference time imposed by the Act. The Complainant’s calculations on this are estimates because, in spite of her request to the Respondent  that it provide her with the data pertaining to hours worked, it has failed to make this information available. According to the Complainant she calculated that for 17.5 weeks X 5.5 overtime a day for five days and 8.5 hours on Saturday X 1.5 amounts to 630 hours of overtime makes 945 hours due to pay.

The Respondent did not attend the scheduled hearing of this complaint. Notice of the hearing arrangements was sent to the Respondent on the 8th April 2024. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it and the hearing date, time and venue. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent.  Post hearing the WRC received e-mail correspondence from the Respondent’s representative wherein reference was made to the rescheduling of mediation. No reference was made in the said e-mail to the fact that the complaints were scheduled for adjudication on the 20th May 2024. No further communication or documentation has been received by the Respondent. 

By way of e-mail correspondence sent to the WRC on the 21st May 2024 the Respondent’s legal representatives sought to offer an explanation for the Respondent’s non-attendance before the WRC on the 20th May 2023. The correspondence incorrectly refers to mediation when in fact, by letter dated the 8th April 2024, the matter was scheduled for adjudication. The correspondence states that the solicitor dealing with the matter was in hospital for a few days and that the firm was unaware of the mediation as the solicitor dealing with the matter was not able to check his emails. However, apart from a reference to the solicitor being in hospital for “for a few days” it does not state with any specificity when the solicitor was in hospital or address the fact that the Respondent was notified of the adjudication hearing date by letter dated the 8th April 2024, approximately six weeks before the hearing.

In circumstances where I am satisfied that the Respondent was on notice of the date, time and venue of the adjudication hearing and waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on the 20th May 2024 I will proceed to set out hereunder my findings and conclusions.

In making these findings, I have considered the documentation submitted in advance of the hearing, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the Complainant at the hearing.

CA-00050663-001 – Payment of Wages Act 1991

Relevant Law:

In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991 as amended (hereinafter referred to as “the 1991 Act”).

Section 1 of the 1991 provides the following definition of wages:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

…

The above definition includes the pay.  The Complainant claims she is due overtime pay of €21,735 which is an estimated figure. The exact figure is unclear as the Complainant did not have access to the Respondent’s records despite requesting same.  

Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers.  

Section 5(1) of the 1991 Act provides as follows:

5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Section 5(6) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid:

5(6) Where -

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

In this case, the wages the Complainant requires to be deemed “wages properly payable” are the sum of €21,735. She acknowledged that the figure is an estimated figure and accepted that the figure was not calculated with forensic accuracy but rather it was based on an honest assessment by her in the absence of electronic evidence which the Respondent has yet to provide to her. I note however that the Complainant was offered and accepted the annual salary in her employment contract and that there is no provision for overtime payment in her contract.  I therefore find I find her complaint to be not well founded.

CA-00050663-002 – Organisation of Working Time Act 1997

Relevant Law:

Weekly Working Week

Section 15 of the Organisation of Working Time Act (hereinafter referred to as “the 1997 Act”) provides as follows:

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.

Records

Section 25 of the 1997 Act provides as follows:

25(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Redress

Section 27(3) of the 1997 Act provides that:

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.

The Complainant presented as a credible witness. She gave evidence of the work carried out by her during the course of her employment with the Respondent and the excessive hours worked by her. She stated that she was constantly under pressure to deliver product which would never have been delivered were she to have worked her normal working hours. She was enticed into working such long hours by the promise of a promotion however she believes that she was deceived by the Respondent as the promise was nothing more than a management strategy to squeeze more productivity out of her without having to pay her wages for the excessive hours she was working over above her normal working hours. The Complainant believed that the corelation between hours worked by her and the hours paid amounts to her in effect having been paid less than the national minimum wage and that in any 17-week reference period within the duration of her employment with the Respondent she worked on average per week more than 48 hours and therefore her employment rights have been violated. According to the Complainant she calculated that for 17.5 weeks X 5.5 overtime a day for five days and 8.5 hours on Saturday X 1.5 amounts to 630 hours of overtime makes 945 hours due to pay. The Complainant acknowledged that the hours worked by her were not calculated with forensic accuracy but rather were was based on an honest assessment by her in the absence of electronic evidence which the Respondent has yet to provide to her.

Taking account of the uncontested evidence of the Complainant, the documentation furnished to the WRC in advance of the hearing and the oral and written submissions presented I find that the Respondent was in breach of section 15 of the 1997 Act.

In determining the appropriate redress I am guided by the decision of the Labour Court case of Ana Lacramioara Manciu v. Stablefield Limited DWT1924 wherein the Court stated that:

“…having determined that the Respondent was in contravention of the Act the Court is obliged to take account of the loss incurred by the Complainant… The Court is not satisfied that recompense by a simple formulaic application of an hourly rate to the difference between the maximum of 48 hours per week permitted by the Act and the actual hours worked is appropriate, as the Act provides that such hours should not be worked in the first place.

The Court determines that payment of compensation to the Complainant for what the Court is satisfied was a conscious breach of the Complainant’s rights under s. 15 of the Act is the most appropriate means of dealing with this matter. The Act, see above, requires the Court to have regard to what level of compensation is just and equitable, subject to a limit of two years’ pay. The ECJ, as it then was, set out in Von Colson v Kamann (1984) ECR 1891, that sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive, they must reflect the gravity of the breaches and should act as disincentives against future infractions.

This Court noted in Edward James Feeney v Milagros Baquiran (2004) 15 E.L.R 304 that the provisions of this Act and the Directive on which it is based are health and safety imperatives. Therefore, breaches of employees’ rights have potentially far-reaching consequences. This Court examined also the concept of ‘proportionality’ in determining the scale of a compensation award for a conscious breach of an employee’s rights under s.15 of the Act in HSE South and Kerry General Hospital v Peter Lukco DWT 1560.

I am satisfied on the basis of the Complainant’s uncontested evidence presented at the hearing before the WRC that a working week of on average of in excess of 48 hours per week was a reality for the Complainant. The within complaint was referred to the Director General of the WRC on 17th May 2022. Having regard to the time limits for referral of a complaint of a contravention of section 15 of the 1997 Act, as set out in section 41 of the Workplace Relations Act 2015, the cognisable period in respect of this complaint is the period from 18th November 2021 to 17th May 2022 bearing in mind that the Complainant’s employment ended on the 28th January 2022. Taking all of the factors into account, and to the extent of contraventions in the cognisable period, I award the Complainant compensation of €10,000 for breaches of the Complainant’s rights under section 15 of the 1997 Act.

Having inquired into the complaint and for the reasons set out above I decide that in accordance with section 27 of the Organisation of Working Time Act 1997 it is just and equitable in all the circumstances to award the Complainant compensation in the sum of €10,000.