SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997
KEPAK CONVENIENCE FOODS UNLIMITED COMPANY
(REPRESENTED BY M.P GUINNESS, B.L., INSTRUCTED BY CAULSTOWN, SOLICITORS)
- AND -
GRAINNE O' HARA
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. An appeal of an Adjudication Officer's Decision no ADJ-00008654.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on the 14 March 2018 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 25 April 2018 and 15 June 2018. The following is the Determination of the Court:-
This is a cross appeal by Kepak Convenience Foods Unlimited (the Respondent) and Grainne O’Hara (the Complainant) in this case. The Respondent is appealing against the decision in its entirety. The Complainant is appealing against the level of compensation awarded by the Adjudication Officer.
The Adjudication Officer, in Decision ref no ADJ-00008654 delivered on 1 February 2018, decided that the Respondent infringed section 15 of the Organisation of Working Time Act in respect of the Complainant by permitting her to work in excess of the statutory maximum number of hours per week permitted under the Act. She ordered the Respondent to pay the Complainant compensation in the sum of €6,240.
The Complainant joined the Respondent Company in July 2016 as a Business Development Executive. Her normal place of work was in the Respondent’s facility in Blanchardstown. Under her contract of employment she was required to work 40 hours per week.
She spent a considerable part of her working time travelling between customer sites in the Dublin and Leinster area. She was also required to record her activities and engagement with customers on the Respondent’s computerised reporting system.
The Complainant’s employment ended on 14 April 2017.
The Complainant’s Case
In her complaint to the Workplace Relations Commission under the Act the Complainant claims that volume of work she was expected to undertake when allied to the reporting structures she was required to complete she worked in excess of 48 hour statutory maximum set out in section 15 of the Act.
In support of her complaint she submits copies of emails that she sent to and or received from her employers both before normal start time and after normal finish time on numerous occasions over the course of her employment. These emails range from 17.00 hours to midnight in most cases. However, instances of emails sent after midnight are included in the documents. In addition, the Complainant submits emails that were sent to her employers and responses that were received from her employer before 0800 hours.
She submits that she sought a full copy of all of her emails that she states would demonstrate that this pattern was common place. However she states that she was not provided with a copy of those emails by the Respondent.
She submits and stated in evidence to the Court that she worked close to 60 hours per week in order to complete the work and associated administrative paper work each week.
The Respondent’s Case
The Respondent submits that the volume of work undertaken by the Complainant was in line with that undertaken by other members of staff none of whom works in excess of the 48 hour maximum set out in the Act. It submits that any objective analysis of the volume of customer visits made by the Complainant together with the associated paper work attached thereto discloses that the Complainant could have comfortably completed her work within the contracted 40 hours each week and totally discredit the claim that she was required to work in excess of 48 hours each week. Mr Colm Conneely, her manager, told the Court in evidence that the Complainant had been inducted into the Company with through a comprehensive training programme that was designed to ensure that she understood her duties and was capable of undertaking and discharging them within the statutory working week. He told the Court that the Complainant was taught how to use the Company’s reporting system in the most efficient manner but that she chose to adopt a less efficient procedure for completing her administrative tasks. He said that this may have increased the time she spent on such tasks. However he said that this was of her own choosing and was not necessary as the alternative more efficient procedure was available to her. He further said that her claim that the completion of the administrative tasks associated with her duties in the manner chosen by her could not explain the time she claims she spend completing them. He submits that the volume of work could not have exceeded 48 hours per week.
Section 15 of the Act states: -
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.
Section 25 of the Act in relevant part states
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 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.
Sections 25 (2) and 25(3) are not relevant in this case
Section 25(4) states
(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 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.
In this case the Respondent told the Court that it did not keep records in the format required by section 25(1) of the Act. Accordingly, it carries the onus of proving compliance with the Act.
In that regard the respondent gave evidence of its analysis of the Complainant’s workload and its associated administrative requirements. Based on that analysis it submits that the Complainant’s claims are not credible and should be rejected by the Court.
The Court does not accept that this evidence is sufficient to overcome the evidence adduced by the Complainant.
The operative words in section 15(1) of the Act are that an employer shall not “permit” and employee to work in excess of 48 hours in the relevant statutory time period.
While the evidence adduced by the Respondent may demonstrate that the work assigned to the Complainant did not require her to work those hours it does not address the question as to whether she worked them in the relevant period.
In support of her contention that she did she produced copies of emails to and from the Company that were sent on a regular basis after 5 pm and up to midnight. She also produced copies of emails sent after midnight and before normal starting time.
She further contended that a full review of her email history with the Company would demonstrate that this was a daily pattern of which the Respondent was necessarily aware.
The Court notes that the Respondent did not produce a full file of the Complainant’s emails and offered no evidence to contradict her evidence in this regard.
On the basis of the evidence before it therefore the Court finds that the Complainant’s evidence was supported by the documents she adduced and nothing was produced by the other side to contradict it. Furthermore, the Court found the Complainant a credible witness and accepts her evidence in this regard.
Accordingly the Court finds that the Respondent was, through her operation of its software and through the emails she sent it, aware of the hours the Complainant was working and took no steps to curtail the time she spent working. Accordingly the Court finds that the Respondent, being aware of the Complainant’s working pattern, and by its failure to monitor and curtail it and by its failure to keep proper records of her hours of work within the meaning of section 15(1) of the Act “permitted” her, to work in excess of the statutory maximum hours of work in the relevant period.
Therefore the Court finds that the complaint is well-founded and determines accordingly.
The Court has considered the Complainant’s submission that the Adjudication Officer did not award her sufficient compensation for the systemic nature of the breaches of the Act involved in this case.
The Court has also considered the Respndent’s submissions that it did not require the Complainant to work in excess of the statutory maximum and structured her work and provided her with the facilities to manage her own work within those limits and accordingly should not be penalised for any unintended failure on its part.
Having considered the case in its entirety the Court finds that the appropriate level of compensation in this case is €7,500.00 and determines accordingly.
The Court determines that the Complaint is well founded and orders the Respondent to pay the complainant compensation in the sum of €7,500.00
The Decision of the adjudication officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
19 July, 2018Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.