Grainne O’Hara v Kepak Convenience Foods Unlimited

Background

Ms. O’Hara (the complainant) who was employed as a Business Development Executive for Kepak (the respondent), took a claim under the Organisation of Working Time Act 1997, for working in excess of an average of 48 hours per week.

The complainant was checking and responding to emails out of hours, which brought her working week above the legal limit of an average of 48 hours per week over a specified reference period.

The claim initially went to the Workplace Relations Commission where she was awarded €6,240. The respondent appealed the Adjudication Officer’s decision to the Labour Court.

Complainant’s Case

The complainant told the Court that her contract of employment required her to work 40 hours per week 9am – 5pm. 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 work she was required to complete required her to work close to 60 hours per week. The complainant submitted emails as evidence that were sent outside of her normal working hours, between 5pm and midnight in most cases.

Further emails were also provided that were sent between her and her employer between midnight and 8am.

Respondent’s Case

The respondent told the court that the work undertaken by the complainant was in line with that undertaken by other employees whose work does not exceed an average of 48 hours per week.

An analysis was submitted supporting that the workload of the complainant could be completed within a 40-hour working week.

The respondent told the court that the complainant went through a comprehensive induction that trained her how to use the company’s reporting system “in the most efficient manner but she chose to adapt a less efficient procedure for completing administrative tasks.”

The respondent further told the Court that it did not keep records of working time in accordance with section 25(1) of the Organisation of Working Time Act 1977.

The Legislation

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.

Finding

The Labour Court increased the compensation previously awarded by the Workplace Relations Commission, from €6,240 to €7,500. The award was issued due to the respondent’s failure to keep working time records in compliance with the law. The Court also said that the company where aware the complainant was working excessive hours outside of normal working time, however, failed to address this breach of the law.

Learning Points

Where an employee is working outside of their normal working hours these hours will be considered working time and should be recorded. In order to be compliant with the law employers should record employees working hours.  In cases where an employee is working excessive hours outside of their contractual hours, management are obliged to address this matter and put measures in place to prevent the matter from continuing.

If you have any questions in relation to working time, please contact the advice line on 1890 253 369