Complainant

Respondent

Parties

Bernadette  Ruane

The Abbey Hotel (Roscommon) Ltd The Abbey Hotel

Representatives

The claimant represented herself

David Gaffney Padraig J. Sheehan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00057100-001

06/06/2023

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

CA-00057100-002

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057100-004

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057100-005

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057100-006

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057100-007

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057100-008

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057100-009

06/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057100-010

06/06/2023

The claimant was employed as Financial Controller with the respondent from the 1st.Sept.2022 to the 9th.Dec. 2022. The claimant submitted the respondent was in breach of the Organisation of Working Time Act  1997 for failing to pay her compensation for working on Sundays and for failing to pay her holiday pay (€86) .She submitted the respondent was in breach of the Payment of Wages Act 1991 for failing to pay her wages due   (€13192)and for failing to pay her notice on termination of her employment (€5,416.66) .She further submitted the employer was in breach of the Organisation of Working Time Act 1977 for requiring her to work excessive hours .The claimant submitted that the respondent furnished her with a statement of core terms which deliberately contained false / misleading information.The claimant submitted the respondent was in breach of the Minimum Notice and Terms of Employment Act 1973 . The claimant submitted she was  dismissed when she was advised she was no longer required after completing the company accounts – she submitted there was no reason given for her dismissal .

The respondent denied all alleged breaches of  employment law and asserted they had met their statutory obligations to the claimant .

Backdrop To The Complaints

The claimant was employed as Financial Controller with the respondent from the 1st.September 2022 to the 9th.December 2022 when she submits she was unfairly dismissed. She submitted that when she commenced working she had 6 months probation but was told on completion of accounts for the bank ,  that she was no longer required without any reason being given. The respondent denied that the claimant was unfairly dismissed and submitted that performance issues had arisen  with the claimant , that she failed to attend meetings to address them and that they were left with no option but to dismiss her and they terminated her employment on the 8/9th.Dec. 2022.

 The claimant was employed as Financial Controller with the respondent from the 1st.Sept. 2022 to the 9th.Dec. 2022.  The claimant submitted that she was interviewed twice for the position  and was offered it on a salary of €65,000 per year on a hybrid working basis .The claimant submitted the accounts were many months in arrears and there was enormous pressure from the banks to provide up to date accounts. She said she was only 2 hours in the job when the respondent handed her his phone to speak with the Bank Manager – she submitted that it was clear that the information required by the bank was not being furnished on a timely basis and she learned that the respondent would be in breach of one of their loan covenants if they failed to provide financial information to the bank.

The claimant was advised by the auditor that financial projections for 2023 were required by the bank by the end of October 2022.The claimant submitted that the pressure was relentless and compounded by the lack of regard by the respondent for accounting procedures. The claimant said she worked diligently 7 days a week to produce accurate accounts in line with standard accounting practise. The claimant set out the ongoing exchanges with the bank and the auditors – a further list of requirements was sent to her on the 9th.Nov. which she completed and sent to the auditors on the 11th.November.The claimant said she spoke with the respondent on the 5th.Dec. and he said he was delighted with the submission of the accounts to the bank – it was the best news he had in a while.

Th claimant said the next contact she received from the respondent was a letter of dismissal on the 9th.Dec. which came as a complete shock to her. She did not receive a performance review. According to the claimant , at this point the accounts were submitted to the Bank , taxes were up to date , a valid Tax Clearance certificate had been issued on the 29th.Nov. and the accounts office was in good running order. The claimant submitted that she received no notice , was not subject to any  dismissal procedure and there had been no induction training. She was not given the right to a hearing or to be represented and having produced the accounts within a terribly restricted timescale she was told by the end of the same week that she was no longer required. She submitted it was her belief that the family never had any intention of retaining her on a full time basis , that the only use they had for her was to produce a set of presentable accounts and when this objective was met , she was disposed of. The claimant referenced cash leakage problems “ where necessary controls were allowed to lapse”.

The claimant submitted the employment contract did not reflect the terms of her original exchanges with the hotel – the claimant submitted it was far more than any coincidence that her employment term ended upon completion of the accounts. She submitted that the respondent deceived her in offering her a full time permanent management contract that they never had  any intention of honouring. The claimant submitted she was unilaterally dismissed without consultation or the application of fair procedures.

The claimant said she never refused to come into work and had received no warnings about any unhappiness with her work.

The claimant said she was not bound by the contract submitted by the respondent -  she said she did not sign it as it did not reflect what had been agreed earlier with Ms.M in August. At that time there was no reference to a probation period .The respondent had produced no evidence of concerns regarding her work and no evidence of refusing to come into work. She had worked to very tight deadlines. The claimant said she got one phone call about going to work and she offered to come in but the respondent said no. There was no HR manager in place at the time. She was in dispute about the contract because  it did not represent what had been agreed with the former HR.manager and the claimant  was relying upon  the emails between her and the HR Manager.

The claimant asserted that the date contained in the emails submitted by her in support of her complaints about overtime was the date she worked on the file and she had to work  at weekends  to get the work done. The claimant said she did not complain about the hours worked at the time because there was a system in place to avail of TOIL – Time Off in Lieu .She maintained the hotel owner was well aware that she was working all of these hours – she was expected to do 4 months accounts in a very short timeframe. The claimant said that reception reported to her on cash flow as did the bar staff 3 x times a day.

The claimant disputed that she said it suited her to work on Saturday and Sundays and asserted that what she said was she had to work on those days to keep up with the work pressures and to complete the accounts work. The claimant denied that she ever refused to come into work. The claimant said she did not have a right to disconnect as she had to get the work done.

The claimant asserted that she did  not lodge a claim for the additional hours worked because she wanted Time Off in Lieu. She said she did not pursue a grievance because she wanted to hold onto her job.

The claimant said that the former HR manager Ms.M had left – the claimant said she never received an email from the respondent referring to a right to disconnect. The claimant was adamant she did not receive the company handbook .She asserted that failing to provide for overtime was an abuse of workers. The claimant indicated that the HR manager had referenced an expectation on staff to work unsocial hours.

The claimant said she had no recollection of receiving documents on August 22nd.2023 and asserted she did not receive an employee handbook. The claimant asserted that she had  been given no proper contract and there had been no reference to a probationary period in her exchanges with Ms.M .The claimant said that records of the hours claimed was backed up by evidence and she described the contract as an a la carte document.

The claimant reiterated that she did not sign the contract as it did not reflect her agreement with Ms.M which made no reference to probation. The respondent produced no evidence to back up the allegation that she refused to come into work. There was no evidence of performance issues with her work. The claimant asserted that she was never subject to a performance review. When she was told her period of probation was not to be extended , she was told by the respondent not to come near the hotel. The claimant submitted that the previous incumbent of the Financial Controller position had also been let go  after 3 months.

In a written closing statement the claimant submitted that “ the expectation from the respondent that an individual is expected to work an enormous number of hours per week in excess of those hours legislated for , without pay and be available as and when the respondents decide upon is medieval”. The claimant submitted that everything she has claimed is backed up by actual physical evidence. The claimant complained about incomplete and late submissions from the respondent. She submitted that the ala carte contract was used to suit the employer and to be discarded when it came to employee protection. The claimant criticised the respondent’s representative and submitted that the defence mounted by the respondent was malicious and without foundation.

The respondent asserted the claimant was not unfairly dismissed and submitted that her performance was not of an acceptable standard – it was submitted that the complainant was called to a meeting on  a number of occasions but  failed to attend and “ ultimately her employment was terminated” .It was submitted that her employment was terminated during her probationary period as per her contract of employment  with which she was furnished  on the 22nd.August 2022.

The respondent asserted that it did not accept the accuracy of the claims submitted by the claimant on  excessive working hours and overtime and questioned the authenticity of the evidence submitted by the claimant in support of her claims. The respondent referenced Adobe  briefings which specify “ that you can change any information that can be set by the document creator unless the file  has been saved with security settings that prevent changes”. The respondent asserted that the emails written by the claimant were not requested by the respondent  and  insisted the claimant was not asked to work on Saturday or Sundays – it was advanced that the claimant was working remotely to her own time. It was submitted that the claimant decided to respond at weekends not at the request of the respondent. It was submitted that there was no provision for TOIL in the claimant’s contract. It was further submitted that the claimant never made a complaint about working excessive hours and that she was the overseer of payslips and payroll in her capacity as Financial Controller. It was argued that the claimant did what she liked and the respondent asserted the claimant had a right to disconnect as referenced in emails she had been sent. It was submitted that the claimant had said it suited her to work on Saturdays and Sundays . It was submitted that the claimant never lodged a complaint under the grievance procedure regarding TOIL , Sunday premium or excessive hours. It was submitted that as the person responsible for payroll , the claimant should have submitted a claim for TOIL.

It was submitted that the claimant had been furnished with the Staff Handbook by Ms.M – former HR Manager – when she sent her a contract on Aug.22nd.2022. A copy of the email issued by Ms.M was furnished to the WRC . It was advanced that the claimant had lodged no grievances regarding her terms and conditions of employment. It was submitted that the claimant was seeking an extension of her contract and was fixated on probation. The respondent’s representatives  said that the claimant refused to respond to a reasonable request to come into the office and she was told  on the phone that her job was in jeopardy. It was submitted that she refused to come in to discuss work related issues and the respondent was left with no option but to dismiss her. The respondent referred to the claimant’s email to Ms.M of the 4th.August indicating that she would be happy with the terms outlined.

It was submitted that the claimant said it suited her to work on Saturdays and Sundays .It was advanced that there was no provision for TOIL in the employment. In his direct evidence the HR Manager said he had a number of conversations with the claimant and it was during a conversation he asked the claimant to come in to the hotel for a meeting.

The respondent said flexibility was discussed with a view to putting a hybrid arrangement in place but there was never a discussion about a requirement to work at weekends.

The respondent said the claimant was issued with a contract , a job specification and a starter form in August and that the claimant had confirmed that  she was happy with the terms outlined.

It was acknowledged that the claimant’s final pay slip did not include pro rata holidays .It was submitted that the claimant could have raised a grievance about notice but did not do so.

The respondent asserted that the claimant was never requested by the respondent to work at weekends and that this had never been raised by the claimant , that the grievance procedure was not utilised and that the claimant was never asked to carry on work outside of her contractual hours.

The respondent reiterated that the complaints were out of time and that consequently there was no jurisdiction to investigate them.

The following supplementary submission was furnished to the WRC on the 11th.October 2024 by the respondent’s representative.

“The Complainant commenced employment with the Respondent on the 1st. September 2022. The Complainant’s Contract of Employment stated that the “contract type” was that of “fulltime (40 hours per week)”.

The Complainant was subjected to a probationary period of 6 months pursuant to such contract. Such contract also contained a provision in relation to “Right To Disconnect” which stated that “the right to disconnect gives the right to Employees to switch off from work outside of normal working hours, including the right to not respond immediately to emails, telephone calls or other messages. The aim of this policy is to ensure a greater sense of wellbeing for Employees both in the course of their employment and in their personal lives. Further information on this policy can be obtained in the Employee staff handbook.”

 The above provision is set out at pages 31-37 inclusive of the Booklet furnished to the Workplace Relations Commission.  Find enclosed a copy of Employee Handbook, together with ancillary New Starter documentation which was furnished to the Complainant by email on the 22nd August 2022 by  Ms. M  the Human Resources Manager for the Respondent at that particular time.

 It should also be noted that at the foot of such email from Ms. M to the Complainant it states “Right to disconnect from Work: At the Abbey Hotel Roscommon Ltd we often work flexibly or unsocial hours and so while it suits me to send this e-mail now, I do not expect a response or action outside of your own working hours.”.

 In relation to the Complainant’s contention that she is entitled to a premium for hours worked on a Sunday, we would refer the Adjudicator to page 2 of the Complainant’s Contract of Employment which clearly states that “Sunday rate included in salary”. Such contractual provision is a standard provision in circumstances where an Employee is engaged on a salaried basis as opposed to an hourly-rate basis.

 Moreover, we would draw your attention to the “hours of work” which clearly states to be inclusive of “overtime” and which is contained in page 2 of the Complainant’s Contract of Employment and wherein it also states that “The position will be 5 days per week (40 hours PW) initially the position will be 5 days onsite and would then move to a hybrid working model of 4 days onsite and I day offsite once all accounts are up to date and the office is running efficient. As discussed in the interview, the Directors would be open to discuss another day to work offsite. Hotel operates 24 hours a day, seven days a week. Staff are rostered to work shifts to ensure efficient running of the hotel. The average working shift is 6-8 hours.”

At no stage did the Complainant raise any concerns or issues in relation to the “right to disconnect” or working at weekends which was never a requirement of the Complainant’s job.

The Complainant was furnished with a copy of the Employee Handbook which clearly contains a Grievance Procedure at page 57 and which was at not stage invoked by the Complainant during the entirety of her employment with the Respondent.

We would refer to the emails submitted by the Complainant in what she alleges to amount to support of working outside of her contractual hours, but it is clear from almost the entirety of such emails that the Complainant instigated email threads or instated upon being included in email threads and at no stage were emails sent to the Complainant outside of her contractual hours insisting that the Complainant complete or carry out work outside of the Complainant’s contractual hours.

 In relation to the Complainant’s contention that she was entitled to accrue Time Off In Lieu, it is submitted on behalf of the Respondent that there was no such entitlement and that time off in lieu is rarely given to Employees and is only done so on an ad-hoc basis when shift cover is required. It certainly does not apply to the position of a Financial Controller and at no stage did the Complainant ever mention that she had been compiling time off in lieu or indeed provide any details in respect of same. The Complainant was responsible for signing off on all payslips, including her own and did not state at any stage that such payslips were not reflective of the hours of work that she did. It is therefore submitted that the Complainant’s complaint in this regard is groundless, frivolous and vexatious in nature.

Please find attached payslip dated the 19th December 2022 applicable to the Complainant and comprising the final payslip received by the Complainant in respect of her employment with the Respondent. Finally, please find attached PDF Properties and Metadata Guide describing the mechanics of properties/metadata of PDF documents on Acrobat PDF file, a summary of which is set out therein.”

CA-00057100-002 Terms of Employment (Information) Act 1973

The claimant submitted that the statement of her core terms deliberately contained false or misleading information.The claimant submitted that the contract did not reflect what was agreed with the former HR Manager .The claimant submitted that the original terms offered were captured in the following email from the former HR Manager of the 4th.Aug. 2022.

“Firstly , thank you for your time yesterday , it was lovely to meet you .Apologies for the delay in responding since your first interview , but as you are aware , this was due to annual leave and a busy operation .After  consultation  with the G family  we would like to offer you the position of Financial Controller with the respondent , with a salary of €65,000 gross per annum.

The position will be 5 days per week (40 hours PW) initially the post would be 5 days on site and would then move to a hybrid working model of 4 days onsite and 1 day offsite once all accounts are up to date and the office is running smoothly .As discussed in the interview , the Directors would be open to discuss another day to work offsite.

Should you wish to accept this offer then please confirm same by return email at your earliest convenience….”

The claimant responded that afternoon confirming that

“ I would be very happy to take up this position and on the terms outlined “.

The claimant submitted that when the contract was furnished , it did not reflect what had been agreed with Ms.M – it did not refer to paid overtime and contained specific references to probation – which had not featured in her discussions  in the offer from Ms.M.”

 Employer’s Response :

 This Claim is statue-barred as it was not received by the Workplace Relations Commission either within the initial statutory period of six months nor within twelve months.

I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022 the date of the letter of dismissal .The complaint was received by the WRC on the 6th.June 2023. The alleged misleading contract was furnished to the claimant on the 22nd.August. 2022 .Consequently , the alleged breach took place outside of the prescribed statutory time limit. Having considered the entirety of the evidence presented , I have concluded that the delay  in lodging the complaint was based on the claimant’s lack of awareness of the statutory time limits set out in the Act.

In Globe Technical Services Ltd. And Kristin Miller (UD/17/177) , the Labour Court found that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form :

“It is settled law that ignorance of one’s legal rights , as opposed to the underlying facts giving rise to a complaint , cannot provide a justifiable excuse for failure to bring a claim in time”.

Accordingly , I am obliged to conclude that the time limits set out in the Act were not complied with. While I acknowledge that  discussions were ongoing between the parties up to March 2023  no  reasonable cause was advanced for the delay in making this complaint  to warrant an extension of time and accordingly I must find that  the complaint is statute barred and I have no jurisdiction to investigate it.

CA-00057100-004 Minimum Notice & Terms of Employment Act , 1973

The claimant submitted she did not receive her statutory minimum period of notice on the termination of her employment .

The respondent submitted that

“ As a result of an oversight , the complainant  did not receive her minimum notice entitlement of 4 weeks pay and which shall be paid to the claimant within a period of 10 days from the date of hearing “.

I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022.The complaint was received by the WRC on the 6th.June 2023. .  The cognisable period for consideration of this complaint is the 7th.Dec. 2022 to the 6th.June 2023.The cause of action was triggered by the dismissal of the claimant on the 9th.Dec. 2022. Accordingly I accept that the claim was lodged in time.

The claimant has confirmed that no notice has since been paid to the claimant .Under the provisions of the Minimum Notice and Terms of Employment Act 1973 Act the claimant is entitled to one weeks notice based on her length of service and consequently I am upholding the complaint and require the respondent to pay the claimant one weeks statutory notice of €1,250.

CA-00057100-005. Minimum Notice & Terms of Employment Act , 1973

The claimant submitted that she was  entitled to  4 weeks notice which applies to managerial postholders  and submitted that  she was not paid pro rata  holiday pay in respect of her notice period .

The respondent submitted that “ As a result of an oversight , the complainant  did not receive her minimum notice entitlement of 4 weeks pay and which shall be paid to the claimant within a period of 10 days from the date of hearing “.

I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022.The complaint was received by the WRC on the 6th.June 2023. .  The cognisable period for consideration of this complaint is the 7th.Dec. 2022 to the 6th.June 2023.The cause of action was triggered by the dismissal of the claimant on the 9th.Dec. 2022. Accordingly I accept that the claim was lodged in time.

 The claimant’s statutory notice entitlement has already been dealt with under complaint CA-00057100-004  .

The respondent did not address the matter of the claimant’s holiday entitlements during her notice period and consequenty I am upholding the complaint.I require the respondent to pay the claimant €86.00 for unpaid holidays owed with respect to the notice period .

CA-00057100-007 Organisation of Working Time Act 1997

The claimant complained that she was not given compensation for working on a Sunday and submitted a chart setting out the Sundays worked during her employment. The respondent submitted the complaint was statute barred as it was out of time. The respondent asserted that the contract of employment specified that the pay of €65,000 was inclusive of “Sunday Rate”.The respondent further asserted that the claimant did not work on Sundays .It was submitted that the contractual provision is a standard provision in circumstances where an employee is engaged on a salaried basis as opposed to an hourly rate.

I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022.The complaint was received by the WRC on the 6th.June 2023. .  The cognisable period for consideration of this complaint is the 7th.Dec. 2022 to the 6th.June 2023.The cause of action was triggered by the dismissal of the claimant on the 9th.Dec. 2022. Accordingly I accept that the claim was lodged in time.

The claimant did not advance credible evidence to rebut the express provisions in the contract which provides that “Sunday Rate” is “included in salary “and accordingly I am not upholding this element of the complaint.

CA-00057100-008 Payment of Wages Act 1991

The claimant submitted the respondent was in breach of the Payment of Wages  Act 1991 for failing to pay her monies due to her for overtime worked.She submitted a chronology of the overtime worked and asserted that she was owed €13,192 in unpaid wages and in respect of which she had not taken TOIL.

The respondent submitted the complaint was statute barred as it was out of time.It was advanced that the claimant’s contract stated that “hours of work” was inclusive of overtime. It was advanced that the claimant at no stage raised concerns in relation to the right to disconnect or in relation to working at weekends – which it was submitted was never a requirement of the job. The claimant had not invoked the grievance procedure and it was contended that the emails  being relied  upon by the claimant demonstrated  that the claimant instigated the email threads or insisted upon being included in the threads. It was submitted that at no stage were emails sent to the claimant outside of her contractual hours. It was submitted that that there was no entitlement for TOIL and that this was given only rarely to employees and on an adhoc basis. It was advanced that TOIL did not apply to the position of Financial Controller and the claimant had never mentioned that she was compiling time off in lieu. It was contended that the claimant was responsible for signing off on all pay slips including her own and it was never stated by the claimant that the payslips were not reflective of the hours of work she did. It was submitted that the complaint was groundless , frivolous and vexatious.

 I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022. The cognisable period for consideration of this complaint is the 7th.Dec. 2022 to the 6th.June 2023.The cause of action was triggered by the dismissal of the claimant on the 9th.Dec. 2022.Accordingly I accept that the claim was lodged in time technically but the cognisable period is limited to the final  2 weeks of her employment  in December 2022 – the claimant was paid at 2 weekly intervals . While I acknowledge that settlement talks were taking place between the parties in the early part of 2023 , no reasonable cause was proffered to explain the delay in making the complaint from the date of dismissal on the 9th.Dec.2022  to the 6th.June 2023.

In my consideration of the complaint I am factoring in the fact that no evidence of the existence of a TOIL system was presented by the claimant .I am also taking into account the absence of any payment claim  by the claimant in circumstances where she held the position of Financial Controller and was responsible for payments made to all staff including herself. According to the claimant she was recording her hours with a view to availing of TOIL following the completion of the urgent accounts work .I do not accept the respondent’s contention   that the  claimant’s contract states that her hours of work were inclusive of overtime – the wording of this section of the  contract on this matter is ambivalent and open to interpretation.

Over all I found the direct and documentary  evidence of the claimant of having worked the stated hours to be compelling .However , I also find that the claimant – in failing to lodge a claim for the additional hours worked over above her contractual requirements -  was herself significantly responsible for what occurred.

I find there was a breach of the Payment of Wages Act for the  9 days of the claimant’s employment in December when the claimant was not paid for the overtime worked during the cognisable period-   I am upholding the complaint with respect to the final 9 days of the employment  when taking into account the cognisable period and I require the respondent to pay the claimant €718.75.

CA-00057100-009 Payment of Wages Act , 1991

The claimant submitted the respondent was in breach of the Payment of Wages Act  for failing to pay her notice amounting  to 4 weeks - this was quantified at €5,416.66.The respondent asserted the complaint was statute barred as it was out of time.

I have considered the submissions of the parties in relation to the time limitations set down in the Act.  I find the date of termination of employment to be the 9th.Dec. 2022.The complaint was received by the WRC on the 6th.June 2023.  The cognisable period for consideration of this complaint is the 7th.Dec. 2022 to the 6th.June 2023.The cause of action was triggered by the dismissal of the claimant on the 9th.Dec. 2022. Accordingly I accept that this  claim was lodged in time.

I note that the claimant’s contract provides that “ Minimum Notice Period for those in a Supervisory or Managerial position is 4 weeks”.In the circumstances I find the non payment of notice constituted a breach of the  Payment of Wages Act and accordingly I am upholding the complaint. I require the respondent to pay the claimant compensation  ( 3 weeks pay )amounting to €3,750 – I have deducted one week having regard to my earlier decision at CA-00057100-004 to award one weeks statutory notice.

CA-00057100-010 Organisation of Working Time Act 1997

The claimant complained  that  the respondent was in breach of the Organisation of Working time Act 1997 by requiring her to work excessive hours and submitted details of excessive hours   accrued  and  in respect of which she had not taken as Time Off in Lieu.The hotel operated 24 hours a day – 7 days a week.The claimant estimated she was owed 256.75 hours TOIL.

I found the claimant’s assertions  and supporting documentation about the pressure she was under from the banks  and the auditors to provide up to date accounts  convincing and  I accept her contention that the pressure was relentless – the emails submitted by the claimant indicate that she was engaging frequently with Heads of Dept. late into the night  to ensure all income was recorded and the hotel was safeguarded .According to the claimant the deadline set was unachievable and set out a chronology of the engagements with the Banks and the Auditors  on revised deadlines. The claimant submitted that it was acknowledged that there was far too much pressure being put on people. It is clear that on the basis of the emails furnished by the claimant that corresponding with parties between 17.00pm  and midnight was a frequent occurrence. There was evidence that  the respondents  including Mr.AG and Ms.GG were copied into   emails during that time frame(Ms.GG was the more frequent recipient). There was evidence that there was a frequent exchange of emails  between the claimant and the Duty Managers during the above time frame. Furthermore I found the additional documentary evidence submitted by the claimant and detailing her workload across a range of files to be credible and convincing – including :

File Workings , Monthly PDFs ; Wages Reconciliation , Documentation with the Banks ; Excel Works for July and August , Revenue Sheets , Pension Inputs , Leisure Club Documentation , Payroll and Forecast workings , Creditors and Debtor records Stock Reports , Bank Reconciliations , Sales Calculations and Weekly Cost Analyses .

The respondent submitted the complaint was statute barred as it was out of time. The respondent further submitted that the claimant’s contract included a Right to Disconnect .It was submitted that the claimant did not raise any concerns in relation to the right to disconnect  and that working at weekends was never a requirement of the claimant’s job .It was contended that the employee Handbook specifically referred to a Grievance Procedure and the claimant had failed to utilise it.The respondent asserted that it had been open to the claimant to manipulate the date of creation of emails that were furnished into evidence  and furnished an Adobe Briefing on PDF Properties Metadata Guide in support of this contention. It was contended that TOIL was only granted rarely and on an adhoc basis and no details had been furnished by the claimant on Time Off in Lieu claims.

This complaint was received by the WRC on the 6th.June 2023 - the claimant ‘s employment ended on the 9th.Dec. 2022 .The cause of action arose when the claimant’s employment was terminated and consequently I am satisfied that the claim of a breach of the Organisation of Working Time Act 1997 for working excessive hours is in time. When questioned as to why the claimant had not invoked the grievance procedure in the context of the alleged excessive working hours the claimant responded that she did not do so because she was in fear of loosing her job. The subsequent chronology of events suggests that those fears were well founded when the claimant was unfairly dismissed.

The Law

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.

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.

Findings

In this case no  records were presented by the respondent  in the format required by section 25(1) of the Act. Accordingly, it carries the onus of proving compliance with the Act.The claimant gave direct evidence of her working pattern and presented extensive documentation charting her email contact with various parties about the hotel finances during the course of her employment after 5.00p.m. and up to midnight and at weekends. I did not find the respondent’s assertions against the claimant in relation to manipulation of the dates of emails to be  either credible or convincing.

I do not accept that the respondent’s protestations  are  sufficient to overcome the evidence adduced by the Complainant – furthermore I do not accept that the respondent was unaware of the hours being worked by the claimant given the evidence submitted in emails as set out above and in the files referenced by her in her submissions.

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.

I  note 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 me  therefore the I  find that the Complainant’s evidence was supported by the documents she adduced and nothing was produced by the other side to contradict it. Furthermore,  I  found the Complainant a credible witness and I  accept her evidence in this regard.

Accordingly I find on the balance of probabilities  that the Respondent  was  aware of the hours the Complainant was working and took no steps to curtail the time she spent working. Consequently , I find  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  I find  that the complaint is well-founded and  I determine accordingly. I am satisfied that this is consistent with the principles set out in DWT 1820.

I require the respondent to pay the claimant €3,000 compensation for this breach of the Act.