Complainant

Respondent

Parties

Thomas  Delecolle

Apple Distribution International Ltd.

(Amended on consent, at the hearing)

Representatives

Self-represented

J.W. O’Donovan Solicitors  

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-00060088-002

17/11/2023

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

CA-00060088-003

17/11/2023

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

CA-00060088-004

17/11/2023

For the Complainant

Mr. Thomas Delecolle – Complainant – self-represented

For the Respondent

Mr. David Pearson, Solicitor of JW O’Donovan Solicitors

Ms. Maeve Cahill – ER Lead, Apple (grievance appeal)

Ms. Emma Hurley – Employee Relations, Apple (grievance)

The Complainant, Mr. Thomas Delecolle, gave evidence on his own behalf, on affirmation, at the hearing.

The Complainant outlined that he had not received a contract. He said that he was French, that the Respondent was a ‘big company’ and that he ‘trusted them’. He outlined that he started working for the Respondent company, initially taking calls in 2013, then he was on a temporary contract in 2016, then he was on a permanent contract from the end of year 2016. He said that everything changed, with respect to his job - tasks, remuneration, everything but that he received no contract. He said that he had a few discussions with leadership [at the Respondent company] in relation to working conditions. He said that he received his new salary on a post-it note in 2016. He outlined that in 2017, he requested a contract. He said that he made the request to the area manager (his direct manager), and he said that he was told everything was okay.

He said that he was moved to other temporary assignments - work tasks, conditions (location changed) but still there was no contract. He said that, at one point, he moved from Holyhill to Lavitt’s Quay on an eleven (11) months’ contract. He said that it was a different contract – it was for SIRI. He said that it impacted his personal life – that it was not normal to have an absence of contract, an absence of information regarding remuneration.

He raised the issue of Sunday working (additional hours). He said that in 2013, he was eligible for additional hours (that there had been discussions around that). In response to a query from the Adjudication Officer, at the hearing, he clarified that he (in 2016) subsequently became a salaried employee. He said that the issue of Sunday working was officialised since 6/3/2024.

He said that Sunday premium was ‘fixed in a way’, that team managers should have been paid on Sundays. He suggested that it was written in a text, that it had been law since 1997. He submitted that if the new arrangement is accepted, that the loss is there for twelve (12) months.

He said that in relation to the issue of additional hours, the answer he received was that he was ‘not eligible for additional hours.’

He said that the Respondent’s own policy required that the matter be dealt with, within three (3) weeks, but that, in fact, it was delayed and took eighteen (18) weeks.

He objected to the use of auto-populated timecards. He said that he had complained about it. He said that it was the company’s responsibility to track and keep records of employees’ working hours. He suggested that all of this is very linked – he cannot claim for additional hours, if there is no record of that.

He outlined the shift pattens, including the ‘critical shifts.’ He said that the software used (Beehive) contained all the requested shifts from managers, but that it was ‘messy’ as everyone could swap shifts. He said that the manager does not know.

He outlined that, in general, his worked Monday to Friday, 9 am - 5.30 pm except if he did additional hours. He said that he could work seven days in a row. He laid out the requirement each month to do a certain number of ‘critical shifts’, which he said were 8 am - 4.30 pm. He said that the late shift was 12 pm – 8.30 pm, and the early shift was 7 am – 3.30 pm.

On cross-examination:-

Page 52 of the booklet of documents was put to the Complainant, which contains his signature on the contract of employment, and onboarding materials he had received. It is dated 26/06/2013.

There is a further contract, signed by the Respondent company on 7/3/2024 and signed by the employee on 20/3/2024.

It was put to the Complainant, in relation to timecards, that there was an email which was distributed to all Apple employees, which informs employees: ‘You’ll need to review your timecard daily.’ It was put to him that if you work hours outside your assigned schedule, you can edit the punches to reflect your actual work time.

It was put to him that there was a second communication sent on 31/10/2022. It was put to him that ‘WorkJam’ allows for the auto-population but also requires the individual to correct it.

The Complainant said he did not receive those emails. 

It was put to the Complainant that the outcome of the internal grievance process was that his grievance was partially upheld and that in relation to Sunday premium, the finding in his favour was that a Sunday premium should be applied to any Sundays worked going forward (at a premium rate of 33%) and that it was also applied one year in arrears from 1/3/2024.  The Complainant accepted that. [The Solicitor for the Respondent flagged that he would be making a submission on the cognisable period, under the Act.]

It was put to the Complainant that he had no financial loss, under the Act. He disputed this, saying that he was stressed by the situation and got sick, and was on the sick pay scheme when he was off work. He also asserted that the issue had been ongoing for a longer period.

It was put to him that there is a significant difference between the payrate for an advisor and a manager. He accepted this. The difference is at least €20,000 annually.

It was put to him that the Respondent’s position was heretofore, managers were never paid overtime and never paid Sunday premium. It was put to him that a new managerial contract was issued to him on 20/3/24, which makes clear on its face that Sunday premium is paid and overtime is not. The Complainant agreed with that.

The Adjudication Officer enquired as to whether the Complainant had signed that contract, and he confirmed that he had. (A copy of the signed contract was exhibited by the Respondent.)

It was put to the Complainant that at the second page of the March 2024 contract, ‘Hours of Work’ and Sunday premium are set out (Page 18 of the Respondent’s booklet), as follows: ‘Your normal working week will be at least 39 hours. The exact working schedules and days vary and will be determined by Apple. As you are aware, our business operates 365 days per year. At present, the normal operational hours are from 7.00 a.m. until 8.30 p.m. Monday to Sunday and you may be scheduled at any times during these operational hours. However, Apple reserves the right to operate on a 24 hour basis and to adjust your schedule accordingly. Your manager will give you directions in this regard. You will always be given at least one week’s notice of your working schedule. See the ‘Working Hours, Overtime, and Breaks’ page on People Site for further details, including break entitlements. Where you are required to work on a Sunday, you will receive an additional premium payable at the rate of 33% of your normal rate of pay, less usual payroll deductions. This role is not eligible for overtime pay.

Hours of work must be recorded by swiping or logging in and out daily in accordance with current procedures. You will be entitled to daily and weekly rest breaks in accordance with the Organisation of Working Time Act 1997.’

Closing remarks by the Complainant

The Complainant expressed surprise at some of the evidence and submissions of the Respondent. He said that the first documentation provided to him was during the original investigation. He emphasised the issue of delay. He said that he first formally raised the issue on 27/6/23, and received his first answer on 6/11/23, that the process went ‘on and on and on’, and that he got sick because of that.

In relation to the issue of auto-populated timecards, he submitted that his understanding of the law was that the company was supposed to keep records of the employee’s hours worked, not the employee.

He said in relation to the emails that the company said he had received them. He maintained that he had not. He queried that the supervisors had received them.  

He said that the absence of a contract was something that triggered everything else, and that it would have been nice to have more structure and clarity around his work conditions, especially in such a big company.

He expressed that it was regrettable to have to come to the WRC ‘to discuss such basics’ and he expressed objections in relation to some matters pertaining to the internal structure of the Respondent company, and expressed the view that as a non-unionised environment, that had a bearing on how things had transpired.

(As per the Written) General and Preliminary Submissions – submitted on behalf of the Respondent company.

The correct name of the Respondent is Apple Distribution International Limited. The Respondent consents to the title of the proceedings being amended to reflect the correct legal name of the Respondent.

The Complainant commenced employment with the Respondent on 11th July 2013 as a CPU Advisor in Apple Care Department. The Complainant is currently employed with the Respondent as a Product Support Team Manager.

The Respondent submits that the cognisable period for consideration of the Complainant’s complaint under Section 27 of the Organisation of Working Time Acts, 1997 is 17th May 2023 to 17th November 2023 being the six-month period immediately preceding the alleged contravention of the Act and Submission of the Complainant’s Complaint Form to the Workplace Relations Commission.

In this regard, Section 27(4) of the Organisation of Working Time Acts 1997 reads as follows: 

 27(4) a Rights Commissioner shall not entertain a complaint under this Section if it is presented to the Commissioner after the expiration of six months beginning on the date of the contravention to which the complaint relates. 

Grievance

The Complainant submitted a written complaint to Apple’s Employee Relations and People Team on 27th June 2023. In this complaint, the Complainant (and others) claim the Team Manager position requires work on Sundays yet there is no mention in their Contract of Employment of a daily allowance, increase hourly rate or time off in lieu for working Sundays. The Complaint further asserts Sunday premium is applied for Advisors roles but not for Team Manager roles. The Complainant raised a further complaint during the grievance investigation process that timecards for Team Managers are being automatically generated and that hours worked are not reported properly as the timecards show standard hours for Monday to Friday work.

Emma Hurley, Employee Relations Business Partner of the Respondent, carried out the investigation into the Complainant’s grievance.

A grievance investigation report was issued on 6th November 2023 by Ms. Hurley wherein she states that the Complainant’s grievance with regard to compensation for Sunday work is partially upheld. Ms. Hurley acknowledged that Sunday pay is not adequately dealt with in the Contract of Employment and recommended that this be rectified moving forward. Ms. Hurley did not uphold the element of the grievance whereby the Complainant alleged there was an infringement on his employee rights and entitlements. This was due to the fact that historically within the Respondent company Manager’s salaries, higher than Advisor’s take into account Sunday work, albeit not explicitly stated in their contracts. Finally, Ms. Hurley found with regard to the Complainant’s grievance on editing his own timecard, that the Complainant was fully informed that he could amend his own timecard to ensure accurate records of his working time were kept as required.

Appeal

The Complainant submitted an Appeal of the grievance findings issued by Ms. Emma Hurley on 10th November 2023. The Complainant’s Appeal concerned the following two points (1) Sunday premium application; and (2) Time keeping regulations.

Ms. Maeve Cahill, Employee Relations Leader of the Respondent conducted the Appeal. The Complainant’s Appeal in relation to Sunday pay was upheld. The Complainant’s Appeal in relation to time record keeping was not upheld.

In Ms. Cahill’s Appeal outcome letter she recommended the following:

“That a Sunday premium should be applied to any Sundays worked by Thomas in the twelve months prior to the 1st March 2024. For Thomas this means that a Sunday premium will be applied to hours worked on the following Sundays: 5/3/2023, 2/4/2023, 23/4/2023, and 4/6/2023.”

Additionally, the Respondent afforded the Complainant the opportunity to raise any concerns with the Sundays worked. The outcome letter states the following: 

 “Should Thomas believe that there is an error in the above records of the Sundays that he worked during the last 12 months, he should raise this with me as a matter of urgency.”

Ms. Cahill also recommended that the Complainant be paid a Sunday premium of an additional 33% of normal pay for any Sundays worked moving forward.

Ms. Cahill reviewed the Complainant’s personnel file and noted that while there was a Contract on file for the employee detailing his Terms and Conditions of employment, for when they commenced employment with the Respondent, however there was no record of the employer receiving a written update his Terms and Conditions of Employment when he was appointed as a Team Manager.

The Respondent confirms that the Complainant has now been issued with an updated Contract of Employment wherein it states: “where you are required to work on a Sunday, you will receive an additional premium payable at the rate of 33% of your normal rate of pay less usual payroll deductions. The role of manager is not eligible for overtime pay.”

Maeve Cahill - Witness for the Respondent - Affirmation

Ms. Maeve Cahill gave evidence on affirmation on behalf of the Respondent. She outlined that she was a member of the People (HR) team, that she heads up the Employee Relations (ER) team, and that her role involves dealing with employees’ concerns and complaints, when they arise.

She said that she dealt with the appeal by the Complainant (internal grievance process).

She outlined that Ms. Emma Hurley, along with another colleague, heard the original grievance. It was then appealed, and she heard the appeal.

She outlined that managers within the appeal were not overtime-eligible roles, explaining that they were the first line of management within Apple. She said that, at the time, Sunday Premium was not paid, that it was thought that the salary difference was sufficient to cover that – the difference between an advisor’s salary and a manager’s salary being in the region of approximately €20,000 per annum.

It was found, however, as part of the grievance procedure, that the current contractual arrangements in relation to Sunday premium were not sufficiently clear, and that part of the grievance was upheld.

She said that there were two hundred (200) supervisors, with approximately one hundred (100) in Sunday premium roles. She said that the company took that approach consistently. There was then an update of contractual terms provided, including updated terms in relation to Sunday working. [This is the new contract of March 2024] She said that the Respondent company also recognised a historical element in relation to Sunday premium.

She outlined that the company identified any Sundays worked between March 2023 and March 2024, then paid them. [The relevant payslip showing that payment was exhibited, in the Respondent’s book of documents.]

In relation to the second issue, the time recording system, she explained that on-site, it is auto populated. She said that Beehive pertain to rostering, rather than recording; and that time-recording for the purposes of the Organisation of Working Time Act 1997 is done in the company’s WorkJam system.

She said some roles are clock-in, clock-out (Advisor roles); and that some roles are non-overtime-eligible roles (Managers and Corporate roles).

She said that in October 2022, the Respondent company put in place a pre-populated roster. She outlined that it was conscious to comply with regulations. In response to a query by the Adjudication Officer at the hearing, she clarified that if there is nothing populated, the system defaults to pay.

She said that this new system had been communicated to all of the teams. She said that the Corporate team is a non-fully Cork based team. So, ahead of the hearing, she had gone back and checked that the Complainant had been in receipt of that email – she said that he received it as part of a specific email group, and that she verified whether the Complainant was on that list, which he was. She explained that he should have received it anyway because the communication was being sent directly to the supervisor’s managers.

She also outlined that with effect from today, the system is changing, and that there is further communication and updating of the time-keeping requirements being rolled out. She said that the email had gone out to the group, with further instructions and clock in and out on Sundays.

Closing remarks – Mr. David Pearson, Solicitor for the Respondent

Mr. Pearson relied upon the written submissions, submitted, in his closing remarks.

He addressed the issue of jurisdiction under the Organisation of Working Time Act 1997, which he said was limited to 6 months prior to 17/11/23, the date of the filing of the complaint form. He submitted that the earliest date to which the cognisable period could extend is 17/5/2023. He submitted that no application for an extension of time had been made and that there was no basis for an extension of time.

He said that Apple is part of the resolution of the appeal outcome awarded. He submitted that in March 2023, that the company resolved the issue backdated to a period in time prior to the jurisdiction of the WRC, in relation to the complaint.

He submitted that this role did not attract either Sunday premium or overtime, as there was a significant difference in pay/salary between the Advisor role and the Supervisor role. He further submitted that there was no evidence of any overtime having been worked; and that, in any event, there is no automatic right to payment for overtime [for a salaried employee], as a matter of law.

In relation to the grievance, he submitted that it had been dealt with, as efficiently as possible, in circumstances where it was likely to have implications for two hundred (200) people. He said that there were a lot of stakeholders, and that the company had to prepare for that. He submitted that the time it took was reasonable, in all the circumstances. He submitted that by the company recognising it [Sunday premium] into the future, and by recognising it back twelve (12) months, that that deals with any legitimate concerns in relation to delay.

He submitted that, under s. 14 of the Organisation of Working Time Act 1997, special provision only has to be made where working on a Sunday is not otherwise taken into account. He said that the managerial role has always taken into account Sunday premium and overtime. He submitted that a very clear revised contract was issued in March 2024, and that Apple has addressed this long since in a manner which is appropriate.

CA-0060088-002 - I find that this complaint is not well founded, as the matter has now been remedied, through the Respondent’s grievance process, and backpay has now been paid extending beyond the limits of my jurisdiction in relation to it.

CA-0060088-003 – I find that this complaint is well founded. The Respondent submits that it has no record of any updated terms and conditions of employment, subsequent to the Complainant’s initial contract in 2013 being provided to the Complainant (at the time of the filing of the complaint).

I note that the lack of clarity caused by the lack of updated terms and conditions has since been addressed, by the issuing of an updated contract in March 2024 to the Complainant, subsequent to the conclusion of the internal grievance process. That contract was signed by the Complainant.

CA-0060088-004 – I find that this complaint is not well founded. The provision cited under the legislation is not applicable.

CA-0060088-002 - I find that this complaint is not well founded

CA-0060088-003 – I find that this complaint is well founded. I am required to award a sum of compensation which is ‘…just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment…’ I direct the Respondent to pay the Complainant the compensation sum of €2,250 which is approximately the equivalent of two weeks’ remuneration, within 42 days of the date of this decision.

CA-0060088-004 – I find that this complaint is not well founded.

Contract; Grievance; OWTA; Sunday Premium;