ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022089
Parties:
| Complainant | Respondent |
Anonymised Parties | A Sales Representative | A Telecom Company |
Complaint(s):
Act | Complaint/Dispute 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-00028919-002 | 07/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028919-003 | 07/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00028919-004 | 07/06/2019 |
Date of Adjudication Hearing: 29/08/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 27 of the Organisation of Working Time Act, 1997 ; section 7 of the Terms of Employment (Information) Act, 1994andSchedule 6 of the Consumer Protection Act, 2007 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Oral Hearing proceeded on the 29th August 2019.
At the initial Oral Hearing the Complainnat raised objections to the Respondent providing a detailed written Submission that he had not had an opportunity to consider in advance. A period of approximately 30 minutes was allowed for the Complainant to read the Respondent submission.
However, In the light of his comments the Complainant was afforded the opportunity to make a supplementary Written submission (to be copied to the Respondent for response). The Complainant did so, and Commentary on the Supplemental Submission was received from the Respondent.
On receipt of the additional Written material I decided to proceed to a Decision without a further Oral Hearing.
Background:
The issues in contention concern Working Hours, Information concerning T & C of work, Protected Disclosures and Harassment and Bullying. |
1: Summary of Complainant’s Case:
1:1 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 ; CA -00028919-002 The Complainant was forced to work more than the Contracted 40-hour week. An 8 Hour day without Breaks was required plus an additional 1-hour lunch break giving a 9-hour day. Travel Time to and from the sales locations was not factored in and if so, it would have readily exceeded 9 hours. 1:2 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 ; The Complainant was not notified of unilateral Respondent imposed changes to his written contract vis a via Working/Travelling Time, Time spend attending Meetings, GPS Monitoring of his Vehicle ( which was unagreed and a gross invasion of privacy) and related Health and safety claims regarding the condition of his vehicle. 1:3 Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 ; CA -00028919-004 The Complainant alleged that he became aware of a “Mis-selling” practice by the Respondent employer. He discussed this informally with a few colleagues. It came to the attention of Management and he was intimidated and harassed in relation to providing Information on this matter. He had informed the Respondent that he was effectively making a Protected Disclosure and that their intimidatory actions in response were completely unlawful. |
2: Summary of Respondent’s Case:
2:1 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 ; CA -00028919-002 The Complainant was in the employ of the Respondent for 3- and one-half weeks. One of these weeks , one was spent on Induction Training in Dublin ( 9:00 to 17:00 hours) and one week on “Shadowing” an experienced representative. The remaining week and one half was the Complainant’s effective time “in the field” - of this period he took 2 days as sick leave. The Complainant had a Contract showing a 40-hour week and there was no suggestion that he was forced to forego his lunch break. The timing of this break was at his discretion. Travelling time to/ from his home to the Work location is clearly on his own account and cannot be deemed to be part of his Working time as claimed by the Complainant. 2:2 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA --00028919-003 In the very brief period that the Complainant was employed there were no changes to his Terms and Conditions of Employment. This complaint must be dismissed. The suggestion that the GPS tracking of his vehicle was in any way improper was completely without foundation. It was based on a clear written statement and agreement with employees. 2:3 Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 CA -0028919-004 The Respondent is not aware of any report made by the Complainant to the Competition and Consumer Protection Commission as required by this Act. An issue was raised by the Complainant regarding what he felt was “mis-selling” during his shadowing session. The Respondent appropriate Manager sought to secure details from the Complainant on this issue but no details were forthcoming. The Complaint has to be dismissed in its entirety as completely misconceived. |
3: Findings and Conclusions:
3:1 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 ; CA -00028919-002 The basic reality of this case is that the Complainant was employed for a 3.5-week period only - one week of which was in the Dublin Office undergoing training ( office hours) and the second week shadowing an Experienced Representative. He was on his own for approximately 7 working days (2 of which he took as sick leave). Basic common sense must apply here – it would have been impossible in this short period of time to clearly establish facts and evidence to sustain a position that the actual de facto working hours were different from the de jure working hours set out in his contract. In the Organisation of Working Time Act,1997 it provides for a Reference Period of 4 or 6 months to determine if there has been a breach of the Act. Section 15(1) 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,
A Period of 5 days is clearly not sufficient to ground a claim of excessive working hours. Regrading the Travelling Time to from/work the Respondent referred to the Working Time definition adopted by the Labour Court in the Breffni Carpentry Services Limited v Deni Solodounikovs case DWT0816 where Working time was defined as “time during which the employee is actually carrying out the activities of his/her work.” The Travelling times identified by the Complainant in this case were clearly not of this nature. I could not accept the Complainant’s arguments here. Regarding Daily Rest breaks /Lunch breaks the Complainants hours were clearly evidenced as from 11:00 to 20:00. During this period, he was free to have a Lunch break at a time that suited him. There is nothing untoward in this situation. Section 3(2) (c) of the OWT Act,1997 has relevance here. a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment. In the very brief period of time the Complainant was employed I could not see any transgressions of the Act. In final conclusion I could not see this Complaint as Well Founded.
3:2 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00028919-003 There was no evidence of changes to the Complainant’s Terms and Conditions of Employment during his period of employment. The Complainant may have felt that the job was not what he had understood it to be prior to his acceptance of the position. None the less there were no changes during his 3.5 weeks. The issue as regards the GPS tracking system was not well founded. The GPS system was an agreed part of the job. The complaint, in totality, must be deemed to be Not Well Founded. 3:3 Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 ; CA -00028919-004 It was accepted during the Oral Hearing that there had not been a “Protected Disclosure” as defined by Statute during the employment. No contact had been made with the Office of the Competition and Consumer Protection Commission. A brief discussion with a Manager who was seeking more details regarding allegations of “Mis selling” was perfectly appropriate behaviour for a Respondent Manager. The Complaint cannot, accordingly, be deemed to be Well Founded.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 ; Section 27 of the Organisation of Working Time Act, 1997 ; Section 7 of the Terms of Employment (Information) Act, 1994andSchedule 6 of the Consumer Protection Act, 2007 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision /Please refer to Section Three above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00028919-002 | Complaint is not Well Founded |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00028919-003 | Complaint is not Well Founded
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Complaint seeking adjudication by the Workplace Relations Commission under Schedule 6 of the Consumer Protection Act, 2007 | CA-00028919-004 | Complaint is not Well Founded
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Dated: 20th November 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee