Labour Court: Woman who worked 60 hours per week due to emailing outside contracted hours awarded €7,500

About this case:

• Citation:
  DWT1820
• Judgment:
  External link
• Court:
  Labour Court

Agreeing with the Workplace Relations Commission’s finding that the employer was in breach of the Organisation of Working Time Act 1997 due to it being aware of the woman’s working pattern and failing to monitor and curtail it, the Labour Court increased the level of compensation awarded to the woman from €6,240 to €7,500.

Emailing outside of work hours

In July 2016, Ms Grainne O’Hara was employed by Kepak Convenience Foods Unlimited Company as a Business Development Executive. Her normal place of work was in Kepak’s facility in Blanchardstown, and under her contract of employment she was required to work 40 hours per week.

Describing her working hours and arduous schedule, Ms O’Hara explained that 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 Kepak’s computerised reporting system.

Due to weekly reports from her line manager complaining of her being behind targets and tardy with weekly reporting, Ms O’Hara says that in the end she felt obliged to catch up and the only time to do this was in her own time and increasingly she would come home and work late into the evenings, over the weekends or get up early to complete tasks demanded of her. Ms O’Hara gave evidence that she would work as many as sixty hours a week to try and keep up.

Ultimately Ms O’Hara’s employment ended in April 2017.

Workplace Relations Commission

In a complaint seeking adjudication pursuant to Section 27 of the Organisation of Working Time Act 1997 by the Workplace Relations Commission in February 2018, Adjudication Officer Penelope McGrath decided that Kepak infringed section 15 of the Organisation of Working Time Act 1997 in respect of Ms O’Hara by permitting her to work in excess of the statutory maximum number of hours per week permitted under the Act.

Ms O’Hara claimed 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 Organisation of Working Time Act 1997.

In support of her complaint she submitted 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. The emails ranged from 17.00 hours to midnight in most cases, however, instances of emails sent after midnight were included in the documents. In addition, Ms O’Hara submitted emails that were sent to her employers and responses that were received from her employer before 0800 hours.

Kepak did not produce a full file of Ms O’Hara’s emails and offered no evidence to contradict her evidence in this regard

The Adjudication Officer considered IBM Ireland v Svobdoa DWT 18/2008 wherein the   Labour Court considered Section 15 and placed emphasis on the obligation on   the Employer not to permit an employee to work excessive hours. The obligation created in the legislation was directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours.

In IBM Ireland v Svobdoa DWT, the Court indicated that Section 15 imposes a form of strict liability on the Employer as the Section does not provide that the Employer is only obliged not to knowingly permit the Employee from working excessive hours – therefore it is not a defence for an employer to say that it did not know that the employee was working excessive hours.

Satisfied that there was no evidence that the workplace had a system whereby Ms O’Hara’s hours of work were being continuously monitored with a view to ensuring that appropriate   corrective action could be taken in the event that an employee exceeded what is acceptable under Statute, the Adjudication Officer said that on balance, Kepak knew or ought to have known that Ms O’Hara, in an attempt to secure employment, worked more than the hours allowed under the Organisation of Working Time Act 1997.

Accepting Ms O’Hara’s evidence that she worked an excessive number of hours each of the 39 weeks which she was employed by Kepak, the Adjudication Officer ordered Kepak to pay Ms O’Hara €6,240 in compensation.

The Labour Court

In the Labour Court, Kepak appealed the decision in its entirety, and Ms O’Hara appealed against the level of compensation.  

Kepak told the Court that it did not keep records in the format required by section 25(1) of the Organisation of Working Time Act 1997. Accordingly, it carries the onus of proving compliance with the Organisation of Working Time Act 1997.

In that regard Kepak gave evidence of its analysis of Ms O’Hara’s workload and its associated administrative requirements. Based on that analysis it submitted that Ms O’Hara’s claims are not credible and should be rejected by the Court.

Finding that this evidence was not sufficient to overcome the evidence adduced by Ms O’Hara, The Labour Court was satisfied that the operative words in section 15(1) of the Organisation of Working Time Act 1997 were that an employer shall not “permit” an employee to work in excess of 48 hours in the relevant statutory time period.

While the evidence adduced by Kepak may have demonstrated that the work assigned to Ms O’Hara did not require her to work those hours, it did not address the question as to whether she worked them in the relevant period.

The Court found that Ms O’Hara’s evidence was supported by the documents she adduced and nothing was produced by the other side to contradict it. Furthermore, the Court found Ms O’Hara a credible witness and accepted her evidence in this regard.

The Court was satisfied that Kepak was aware of Ms O’Hara’s working pattern, and failed to monitor and curtail it. By its failure to keep proper records of her hours of work within the meaning of section 15(1) of the Act, Kepak “permitted” Ms O’Hara to work in excess of the statutory maximum hours of work in the relevant period.

Dismissing Kepak’s appeal, the Labour Court found that the appropriate level of compensation was €7,500.

• by Seosamh Gráinséir for Irish Legal News