FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : IBM IRELAND - AND - MICHELLE SVOBODA (REPRESENTED BY BRENDAN ARCHBOLD) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision R-051429-Wt-07/JT.
BACKGROUND:
2. The dispute before the Court concerns an appeal against a Rights Commissioners decision under the Organisation of Working Time Act, 1997. The Worker concerned began working with IBM's French Language Section as a Telesales Specialist in 1999 and over time due to a heavy workload she felt she was obliged to work longer and longer hours without breaks in order to reach sales targets. The Company on a number of occasions took steps to dissuade her from working excessive hours but these measures were largely ineffective. The dispute was referred to a Rights Commissioner for investigation and recommendation, on the 25th September, 2007 the Rights Commissioner issued his Recommendation as follows:
"I would have to say that on balance the claimant significantly contributed to the situation that she found herself in. However the respondent let the matter continue to develop and only took action late in the day. As regards the allegation of the Company being in breach of certain sections of the Act I do not find that they willingly breached the Act as the Claimant greatly contributed to the situation. Therefore I do not find the claim well founded and therefore it falls".
On the 24th October, 2007 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on the 9th April, 2008.
CLAIMANT'S ARGUMENTS:-
3. 1. The contract of employment gives the Employer not the Employee the authority to decide the working hours, she was required to work on occasions on Saturdays and Sundays in addition to her normal Monday to Friday hours.
2. It is submitted that the Company failed to keep accurate records of the Claimants working hours and failed to furnish these records when requested to by the Claimant.
EMPLOYER'S ARGUMENTS:-
4. 1. The Claimant was not given any more work to do than any other comparable colleague within the telesales team and was required to attend at the Ballycoolin facility for 39 hours per week between 08.30 and 17.00 hours or 09.00 and 17.30 hours Monday to Friday.
2. The Company had difficulties with the Claimant and her excessive working hours since 2006. She had not been given additional tasks over and above normal duties to complete nor was she requested to take work home. The Company took every step available to it in order to prevent her from accessing remotely the Company's network outside her normal hours
DETERMINATION:
While this is an appeal by Ms Svoboda, in this Determination the parties are referred to as they were at first instance. Hence Ms Svoboda is referred to as the Claimant and IBM Ireland is referred to as the Respondent.
Facts
The facts giving rise to this dispute can be shortly summarised. The Claimant commenced employment with the Respondent in March 1999. Initially she worked on the “French Language Team”. Later she moved to another position, that of Telesales Specialist on the Partner Choice Team. This position required her to service French customers of the Respondent. The Claimant resigned her employment with the Respondent on 2nd October 2007.
In relevant part the Claimant’s contract of employment provided as follows: -
- “Your place of employment will be Ballycoolin IDA Industrial Estate, Snugborough Road, Blanchardstown Dublin 15. The Direct Marketing Centre operates 5 days per week. Core hours are 7am to 7pm. However, business requirements will dictate your hours of work and these may be liable to change. Your manager will advise you of any changes to these core hours. Work patterns are based on the countries you serve at any specific time. Your average working week will be 39 hours, excluding a daily meal break of 30 minutes. You will be notified in advance of your work pattern. You may be required to vary your hours, without notice, in response to business requirements.”
The essence of the Claimant’s complaint is that notwithstanding the contractual term stipulating an average working week of 39 hours she in fact regularly worked in excess of 48 hours per week. She also contends that she was not afforded adequate breaks or daily rest periods. This, the Claimant contends, arose from the inordinate workload which she was expected to carry.
The Respondent accepts that the Claimant attended at her workplace outside her contracted hours and at weekends. It was submitted on its behalf that the Claimant was a member of its professional staff and as such she was afforded flexibility in determining her own working hours and break times. The Claimant’s times of attendance were not formally recorded and the only records available to the Respondent are those derived from the times at which the Claimant logged on and off her work telephone. The Respondent did not instruct or request the Claimant to attend outside her core hours.
It was submitted on the Claimant’s behalf that the Respondent knew or ought to have known that the Claimant was working excessive hours. This, it was submitted, was necessitated by the workload assigned to the Claimant by her managers. The argument was further advanced that it was only when the Claimant initiated her complaint to a Rights Commissioner that the management of the Respondent took any steps to address the problem.
Conclusions of the Court
Working Hours.
These complaints were presented to a Rights Commissioner on 22nd February 2007. Section 27(4) of the Act provides, in effect, that a complaint must be presented within 6 months of the occurrence alleged to constitute a contravention of the Act. It follows that the only occurrences which are cognisable by the Court for the purpose of this case are those which occurred on or after 23rd August 2006.
It is accepted that the Claimant’s weekly working hours did, on occasions, exceed 48. The duty of an employer in respect to working hours is prescribed by S.15(1) of the Act as follows: -
- “Weekly working hours
- 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 ,
- (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
(c) [not relevant] .
- (a) 4 months, or
- 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—
Hence, it would appear that it is no defence for the Respondent to say that it did not know that the Claimant was working excessive hours unless it had in place some system by which her hours of work could be monitored and appropriate corrective action taken if needed. In that regard the law has always recognised that a person can be fixed with imputed or constructive knowledge for the purpose of imposing liability for a breach of statutory duty.
It is admitted that the Claimant worked excessive hours over a prolonged period. However there is no suggestion that the Respondent instructed or required her to do so. It is also clear from the evidence that the Respondent instructed the claimant on more than one occasion during 2006 to confine herself to working her contractual hours. Yet the Claimant ignored these instructions and continued to attend at her place of work outside of these hours.
On the evidence the Court accepts that the Respondent made a bona fide effort to bring about a state of affairs in which the Claimant would cease working in excess of the permitted hours. Its efforts were clearly not sufficient in that the problem continued after these instructions were issued. The Respondent took no further action until August 2007, after a Rights Commissioner had heard the complaint, when her manager wrote to the Claimant in definitive and robust terms instructing her not to attend outside her contract hours. In the Court’s view this approach would have been appropriate at an earlier stage.
In the circumstances the Court has come to the conclusion that a contravention of s.15(1) of the Act did occur in this case in that the Claimant was permitted to work in excess of 48 hours on occasions. However the Court is equally satisfied that the breach was technical and non-culpable in nature and that the Claimant was herself primarily responsible for what occurred.
Alleged contraventions of Sections 11,12,17.
Reference was made in the Claimant’s complaint and in the submissions made on her behalf to the Court to alleged breaches of Sections 11, 12 and 17 of the Act.
Having reviewed the evidence and other material placed before it the Court can find nothing to substantiate these complaints.
Alleged breaches of Section 25.
Section 27 of the Act provides that a Rights Commissioner (and by extension the Court on appeal) may investigate a complaint that an employer contravened a “relevant provision” of the Act. The relevant provision for the purpose of that Section are Sections 6(2), 11 to 23, and Section 26.
Section 25 is not a relevant provision and consequently the Court has no jurisdiction to investigate any alleged contravention of that Section
Determination.
For the reasons referred to above the Court holds that the complaint alleging a contravention of S.15(1) of the Act is well-founded. Given the Court’s findings as to the technical and non-culpable nature of that breach the Court is satisfied that it should make no further order in the matter.
Signed on behalf of the Labour Court
Kevin Duffy
7th May, 2008.______________________
JF.Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.