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Case Law Reviewed Under the WRC

October 01, 2019

Employee awarded four weeks’ pay for excessive hours worked

Adjudication Reference: ADJ-00017815

Background:

The Complaint was employed as a Driver for the Respondent.  The Complainant submits that the Respondent is in breach of his entitlements under Section 15 (weekly working hours) and Section 12 (rests and intervals at work) of the Organisation of Working Time Act.

Summary of Complainants Case:

The Complainant submitted that he was required to work an average of 55 hours per week which is contrary to section 15 of the Act. He advised that he was also required to respond to texts after hours in preparation for the following day’s work and that he would receive texts from 5am up to 10pm.

The Complainant submitted that he was not provided with his intervals at work rest breaks during the day on site which is contrary to section 12 of the Act. The Complainant submitted that he was required to drive on a daily basis from the depot to a client’s site where he changed driving from a heavy goods vehicle to a shunting vehicle. He stated that due to the work pattern each day he was not provided with the opportunity to enjoy rest and intervals at work breaks. He advised there was insufficient time to take these breaks as his shunting duties required him to be available throughout the day to facilitate shunting of goods around the site.

The Complainant maintained that he worked from 6am until 5pm. He explained that during the daytime when he was taking his breaks his phone would ring and if he did not respond to these calls to continue shunting it would cause a build-up of goods and therefore, he had to be readily available throughout each day. The Complainant advised there was no second driver until 1pm each day and therefore he was a lone driver on site from 6am until 1pm. He advised he could not take a break for a meal as he would be called back to shunt the trailers.

The Complainant further advised it would take up to 30 minutes to load a trailer and 15 minutes to shunt the loaded trailer. He advised that this had been his work routine from September 2015 and he would have regularly verbally raised concerns to his line manager that he could not take his breaks. The Complainant submitted copies of his tachographs for work in January 2018 which he advised would indicate he would have been driving from before 6am and would not have completed driving until 5pm each day.

Summary of Respondent’s Case:

In response to the complaint that the Complainant was required to work up to 55 hours per week, the Respondent submitted that whilst texts would have been sent to the Complainant outside of his working hours there was no obligation for him to respond to these.

The working hours of the Complainant where he started at 6am and finished at 5pm was not disputed by the Respondent. However, the Respondent advised that the Complainant would finish work before 5pm and therefore contested that his working hours exceeded the permitted hours under the Act. 

The Respondent did not provide a record of the weekly working hours for the Complainant.

In response to the complaint that the Complainant did not get to take his breaks and intervals at work, the Respondent advised that there was sufficient time during the workday for the Complainant to take his breaks. The Respondent advised that the Complainant was required to note his break times on the tachograph and that he failed to properly record these breaks. It further advised that whilst the Complainant was the sole driver on site from 6am to 1pm, there would have been sufficient time for him to take his breaks, and if he had received a call to shunt a trailer when on a break it would have been acceptable for him to explain that he was on a break and that the Complainant would never have been denied the opportunity to take his breaks.  The Respondent maintained that the Complainant was never put under pressure to forgo his breaks.

The Respondent called another driver from the site as a witness.  This driver outlined in his evidence that he was never put under pressure to forgo his breaks and he would get 15-minute breaks during his roster, and also would have had sufficient time to take a break in the canteen or the drivers hut. The witness advised he could take a break at any appropriate time and it was the discretion of the drivers to take their breaks. In his evidence the witness advised he was never required to “run and jump” if he was called to shunt a trailer, and he could finish his breaks before going back to drive.  The witness advised in his twelve years working with the Respondent he had never experienced not being permitted to take a break. The witness also advised that would never have heard the Complainant complain about not getting breaks or having to work long hours later.

The Respondent acknowledged it did not have a record of the rest breaks taken however it maintained it was the driver’s responsibility to have this noted on his tachograph, but he failed to do this.

Findings and Conclusions:

CA-00022991-001 Complaint - Weekly Working Hours - Under Section 27 of the Organisation of Working Time Act, 1997, section 15 of the Act requires that “an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, calculated over a 4 months… or 6 months …, or such length of time as, in the case of an employee employed in an activity … specified in a collective agreement.”

In the case within the Complainant’s average weekly working hours amounted to a minimum of 50 hours per week.  The Respondent did not provide a record of the Complainant ‘s weekly working hours. The Respondent was found in breach of its obligations under section 15 of the Act. 

CA-00022991-002 Complaint - Breaks and Intervals at Work - Under Section 27 of the Organisation of Working Time Act, 1997. In accordance with Section 12 of the Organisation of Working Time Act 1997, “(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).”

Based on the evidence provided there were sufficient opportunities for the Complainant to take his intervals at work breaks, and the evidence submitted that the Complainant was prevented from doing so was not corroborated by the Complainant other than in his verbal submission at the hearing.  The evidence presented by the Respondent’s witness, a driver colleague of the Complainant, disputed the Complainant’s version of events, as did the Respondent.

Samples of the tachographs presented by the Complainant for a number of days in January 2018 demonstrates no breaks were recorded in the driving operation of the tachographs presented, and where these tachographs were those operated by the Complainant. The Respondents position was noted that the Complainant had failed to properly operate the tachograph to record the breaks he took.

As set out in the Complainant’s statement of his terms of employment, the minimum rest periods are stipulated, are consistent with section 15 of the Act. Where the Complainant is advised that should he fail to receive his breaks or rest periods he should advise his manager within one week and the Respondent will seek to ensure the employee is afforded this as soon as possible. The Complainant did not corroborate his statement that he had advised his manager, or when he raised his concerns in accordance with his terms of employment where the Respondent failed to address the concerns.

It was found that the Respondent’s evidence to be more credible, and that the Respondent did not fail to provide the Complainant with an opportunity to take his intervals at work breaks.

Decision:

In response to CA-00022991-001 Complaint, Weekly Working Hours - The Complainant is well founded and the Respondent is required to pay to the employee compensation of four weeks remuneration at his gross rate of pay.

In response to CA-00022991-002 Complaint- Breaks and Intervals - The Respondent was found to be not in contravention of Section 12 of the Act.  The complaint is well founded.

Adare Human Resource Management Commentary:

It is imperative that Employers retain records of Employee’s working hours, breaks and rest periods, not only because it is a legal obligation under the Organisation of Working Time Act, 1997 but also because such records are evidential in potential claims which may arise.

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Complainant awarded sum of money for having no Contract of Employment in place but not entitled to a notice period

Adjudication Reference: ADJ-00021010

Background:

The Complainant claimed he did not receive a written contract of employment or receive his minimum notice payment of one week.

Summary of Complainants Case:

The Complainant was employed as a Fabricator on April 12th, 2018.  He was employed on a full-time basis and worked 40 hours a week and earned 510 Euros net per week. His employment ceased on December 21st 2018.

The Complainant did not receive any written terms and conditions of employment in breach of Section 3 of the Terms of Employment (Information) Act 1994 which requires an Employer to give an Employee a written statement of terms of employment within two months of commencing employment.

The Complainants employment with the Respondent came to an end in December 2018. The Complainant stated that his employment was terminated without notice by one of the co-owners following a disagreement over the specification of a gate. The Complainant was told to pack his things and leave. The Complainant spoke to the other co-owner who attempted to resolve the situation, but the Complainant was not willing to return to his position. The Complainant was furnished with his P45 and the pay that was owed plus four days holiday pay along with a Christmas voucher for 100 Euros. However, the Complainant was not furnished with one weeks’ notice or paid his one weeks’ notice as per Section 4.2 (a) of the Minimum Notice & Terms of Employment Act, 1973.

Summary of Respondent’s Case:

The Respondent accepts that they did not furnish the Complainant with a written statement of terms of employment at any stage.

The Respondent stated that the Complainant handed in his notice to leave for another job after Christmas. The Respondent was sorry to see him go and they shook hands and the Complainant left on good terms. The Respondent paid the Complainant what he was due. The Respondent stated there were two witnesses to the Complainant handing in his notice. The Respondent said he always treated staff well and was very flexible with time off for personal matters.  The Respondent stated the company was currently having financial difficulties.

Findings and Conclusions:

The Respondent stated he did not give the Complainant any written terms of employment but had a verbal conversation with him about them. This is in breach of Section 3.1 of the Act which states ‘’An employer shall not later than two months after the commencement of an employee’s employment with the employer, give or give cause to be given to the employee a statement in writing containing the following particulars of the employees employment

Therefore, the claim is well founded, as the Respondent admitted he was in breach of Section 3.1 of the 1994 Terms of Employment (Information) Act.  The Complainant was awarded 2,040 Euros for the breach of this Act. (CA-00027628-001)

With regard to the claim for one weeks’ notice pay, the Respondent stated that the Complainant left of his own accord, left on good terms, he left to go to a new job which he was starting immediately after Christmas and no notice was due. However, the Complainant stated at the Hearing that he was told to pack his things and leave and did not start work again until May 2019. The Respondent stated there were two witnesses to the Complainant handing in his notice but these witnesses were not presented at the Hearing so their evidence is only hearsay.

The evidence of the Complainant was preferred based on the fact he did not start work again until May 2019.  The claim is well founded and the Complainant is awarded 510 Euros for breach of Section 4.2 (a) of the of the Minimum Notice & Terms of Employment Act, 1973. This states, that an employer must give an employee with over thirteen weeks continuous service ,  “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be (a) If the employee has been in the continuous service of his employer for less than two years, a week”.CA-00027628-003.

Adare Human Resource Management Commentary:

Although we saw the introduction of the Employment (Miscellaneous Provisions) Act 2018 earlier this year and specifically the requirement for Employers to now provide Employees with their 5 core terms of employment within 5 days of commencement, there is still a requirement for Employers to provide Employees with a statement of terms and conditions of employment within 2 months of their commencement.

In addition, when any Employee resigns, it is recommended that it is requested by the Employer that the resignation is confirmed in writing. Having such resignation in writing will ensure that there is no ambiguity in whether an Employee resigned, or was terminated, as seen in this case law.
 

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Trainee Solicitor takes discrimination claim and fails as no evidence only assumptions

Adjudication Reference: ADJ-00019308

Background:

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

Summary of Complainants Case:

The Complainant has a 2:1 Law degree from University College Cork, which she obtained in 2009. She went on to complete her LL.M. from the same University in 2010. In 2015 she completed all of her FE1 exams. The Complainant has experience working in Legal Offices.

In or around 2018, she saw an advertisement on the Respondent’s website. The position was for a trainee solicitor. She applied for the position but was not called for an interview. The Complainant states the reason she was not called for interview was discriminatory.

The Complainant strongly believes that if she was a male, with the qualifications that she has, she would have been given the job. The profession is a male-dominated one and males throughout the Country are preferred over females. The Complainant states that she was discriminated on grounds of gender, age and civil status by every firm in Ireland that she applied for a job in.

The Complainant believes that she was treated less favourably than a married woman with children. She is of the belief that a married woman with children would get more respect and that the Respondent would have an obligation to give such a candidate the job, so that she could feed her children.

The Complainant is also of the belief that because she is older, the Respondents favoured the younger applicants. Their website states that they can help with the transition from student to trainee solicitor. However, the Complainant admitted that she does not know who the Respondent hired, their gender, civil status or age. The Complainant admitted that she has come to her conclusions based on a general assumption of how the legal profession operates in this Country and from general information she gathered from the Respondent’s website and LinkedIn profiles.

The Complainant did not request any specific information from the Respondent in relation to the application process or in relation to those candidates that were successful. The Complainant did not know that she could do that and was hopeful that the Respondent would give her the information during the hearing.

Summary of Respondent’s Case:

The Respondent denies it has discriminated against the Complainant.

The Respondent submits that the Complainant has manifestly failed to discharge the burden of proof in respect of her claim of discrimination. The Complainant's claim should therefore be dismissed on this basis alone.

Without prejudice to the forgoing submission, if the Adjudication Officer decides the burden of proof has passed to the Respondent, which is denied, the Respondent vigorously denies that any discrimination, either direct or indirect, occurred.

The Complainant has failed to identify a comparator of a different gender, civil status and/or age who was, or would have been, treated more favourably than her in respect of her application for employment with the Respondent, or to show that she suffered any less favourable treatment than an identified comparator.

The Complainant was not selected for interview for the Respondent's 2018 Trainee Solicitor Programme on the basis that other candidates demonstrated stronger capability in their application forms across all of the Respondent's selection criteria. While the Complainant is evidently aggrieved that she was not called to interview, she has adduced no evidence whatsoever that this decision was made other than on the basis of an objective assessment of her application form and scoring of same by reference to the Respondent's published selection criteria. Her disappointment at not being called to interview, while understandable, does not provide grounds for her to challenge the Respondent's decision under the Employment Equality Acts.

Findings and Conclusions:

As the Respondent is a law firm and the Complainant has brought the same claim against multiple law firms in this jurisdiction, I find that it would be inappropriate to name the parties in the decision.

The probative burden of proof that rests on the Complainant is set out in Melbury Developments Limited v Arturs Valpeters IEDA09171:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 (4) places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

The Complainant herein, on her own admission, has based her entire claim on nothing more than her own assumptions. She has no evidence, documentary or otherwise to support her allegations. Assumptions, unsupported by facts, can never form the foundations for a discrimination claim.

The Complainant has failed to establish a Prima Facia case of discrimination against the Respondent on any of the grounds set out in her claim form.

Decision:

The complaint fails.

Adare Human Resource Management Commentary:

This case is a prime example that evidence and paperwork is critical in defending claims in the WRC. The majority of cases taken at the WRC will have the burden of proof lie with the Employer in the first instance so it is recommended that all such processes are fully documented.