Complainant

Respondent

Parties

Nassor  Sleyum

Emerald Contract Cleaners (Ireland) Ltd t/a Emerald Facility 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-00058758-001

10/09/2023

The complainant was employed as a cleaner with the respondent from 2017 until 2023.

A complaint under section 27 of the Organisation of Working Time Act 1997 concerning the complainant’s weekly working hours was referred to the Workplace Relations Commission on 10 September 2023.

The complainant was paid fortnightly in arrears by credit transfer. The complainant submitted that he was working 66.5 hours per week.  His contract of employment provided for 39 hours per week.  The complainant was not paid overtime rates for the overtime worked. 

The complainant provided documentation in support of his complaint, including timesheets and pay slips for 2023 and his contract of employment.

Summary of complainant’s sworn evidence

With regards the respondent’s position that the complainant’s timesheets did not accurately reflect the hours actually worked by the complainant, there was a sign-in/sign-out process at all the sites the complainant worked which would show the complainant’s hours of work were as per his timesheets. 

The complainant worked the hours detailed on the timesheets, he never left sites early and was never told he could do that. The complainant disputed leaving client sites early. 

In response to my question about completion of the hours detailed on the timesheet, the complainant outlined his daily working hours over 4 client sites at 3 different locations, which commenced at 7.00am and concluded at 10.00pm.  

The respondent submitted that the timesheets show the scheduled hours for a job and that the complainant did not work the hours recorded in the timesheets.  He was paid the hours detailed in the timesheets, but those hours were not his actual hours of work.   It is common practice in the cleaning industry that a cleaner does not work the full scheduled cleaning hours.

Summary of Ms O’Driscoll’s sworn evidence

This witness was the complainant’s manager.

Timesheets are submitted on a Friday or Monday for payroll to process, with payment to an employee the following Friday.  The witness could see from the timesheets the hours worked by an employee and would send approved timesheets on to payroll for payment.  The complainant always sent his timesheets to the witness on time with the hours clearly detailed.  

Regarding sign-ins or fob access on client sites, these were not under the respondent’s control, and it was unaware of a sign-in book at a particular client site.

The complaint is of a breach of section 15 of the Organisation of Working Time Act 1997 (the “1997 Act”) which concerns maximum weekly working hours over a reference period.

Section 15(1) provides as follows:-

“(1) An employer must 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 3, points (a) to (e) 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.”

The cognisable period for this complaint under section 27 of the 1997 Act is the period from 11 March 2023 to 10 September 2023.  At the material time, the complainant was paid €11.55 per hour up until pay period ending 2 April 2023, and thereafter €11.90 per hour.

The statement of the complainant’s terms and conditions of employment provided the following in relation to the complainant’s hours of work:-

“You are contracted to cover work up to a max of 39 hours per week but your actual hours of work are dependent upon the requirements of the site(s) you are assigned to.  You will be advised of your working hours on assignment, however you are expected to be co-operative in working outside these hours if necessary.  Overtime is paid after the completion of 39 hours if applicable.”

The statement further expressed that the complainant’s pay would be in accordance with the rates prescribed by the Joint Labour Committee for the Contract Cleaning Industry and that overtime would be paid at time and one half for the first 4 hours and double time thereafter. 

On the respondent’s account of timesheets submitted, the complainant’s scheduled weekly hours were as follows:-

·       21 hours per week at one particular client site; 3 hours of which were paid at double time as they were aligned to Sunday work;

·       10 hours per week, Monday to Friday, at a second client site; 

·       from February 2023, 22.5 hours per week, Monday to Friday, at a third client site;

·       10 hours per week at a fourth client site.

The respondent submitted that whilst the complainant was scheduled to work at the 4 client sites and paid for the hours scheduled and detailed on the timesheets, the complainant never actually worked the full hours recorded on the timesheets, rather there was flexibility around the timing and duration of the scheduled work once the work was completed.

There was some dispute between the parties over when the Sunday hours were worked on the first-mentioned client site in terms of the complainant being paid Sunday pay for hours that were not worked on a Sunday, and over public holiday work, however this is not relevant to my determination of the complaint of a contravention of section 15 of the 1997 Act. 

To demonstrate compliance with the 1997 Act, the respondent is required under section 25(1) of the 1997 Act to keep records.  

The timesheets submitted by the parties were consistent in content, but the parties differed on whether the complainant worked the hours recorded on the timesheets.  The respondent’s record of the complainant’s weekly working hours were the timesheets submitted.

In circumstances, where the complainant’s sworn evidence was that he worked the hours detailed in the timesheets submitted to the respondent, where the respondent paid the complainant based on, and following approval of, the hours detailed on the timesheets, and where the respondent was unable to establish the hours worked by the complainant, as contended by it,  I must conclude there was a contravention of section 15 of the 1997 Act in respect of the complainant’s weekly working hours.     In a 4-month reference period during the cognisable period, the minimum number of hours for a fortnight recorded in the timesheets and payslips before me was 113.5 hours.  In relation to the respondent’s submission that the complainant did not work all of the hours detailed in the timesheets and payslips, or worked far less than those detailed, the respondent did not prove this to be the case.  A submission that employees regularly left 30 minutes, or an hour early is not sufficient in establishing compliance with section 15 in respect of the complainant’s weekly working hours. 

Accordingly, I find that the respondent contravened section 15 of the 1997 Act in permitting the complainant to work hours in excess of the maximum number prescribed by that section and that the complaint is well founded.

Section 27(3) of the 1997 Act provides for an award of compensation of such amount as is just and equitable having regard to all the circumstances subject to the upper limit of two years’ pay.

I require the respondent pay to the complainant compensation of €5,600.00, equivalent to approximately 12 weeks’ pay based on the complainant working a 39-hour working week, which I consider just and equitable having regard to all the circumstances.  In assessing appropriate compensation, I have had regard to the nature of the contravened right, including the health and safety objectives underpinning section 15, and the terms of the complainant’s contract of employment regarding pay for hours worked in excess of 39 hours.

For the reasons set out above I find this complaint to be well founded and award the complainant compensation in the sum of €5,600.00.

Organisation of Working Time Act 1997 – Weekly Working Hours – Records