Employers in Ireland will no doubt have a myriad of paper work and regulation to be mindful of when carrying out day to day duties. In the circumstances it is not beyond the realms of possibility that an employer will take their eye off certain obligations and it seems that ensuring compliance with working time rules is an oft neglected area for employers. The recent decision of Malecka & Krawczyk –v- Family Bakery Samo Zdrowie (DWT1584 / DWT1585), where the claimants won €20,000 in compensation, is a timely reminder of the importance of observing working time rules Background and Summary The two employees in question commenced work with the bakery in January and February 2013 respectively as bakers. Whilst the employer disputed the claims, it was alleged by the employees at the Labour Court that they regularly worked well in excess of 48 hours and even worked up to 98 hours in one single week. NERA conducted a workplace inspection which involved the examination of working time records. The employees alleged that they were required to falsify working time records for the purposes of this inspection under the threat of dismissal and deportation should they not do so. Importantly in this case, the employer did not maintain working time records in a manner compliant with the Organisation of Working Time Act. Working Time Rules The issue at play here was that the employees in question were allegedly required to work more than 48 hours a week. This area is governed by section 15 of the Organisation of Working Time Act which states that “an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours”. Generally speaking, the average working hours is calculated over a 4 month reference period, although this may be longer in certain industries or where specified in a collective agreement. As such, it is absolutely fine to have an employee work in excess of 48 hours in any one week, provided that the employee does not exceed 48 hours on average over the reference period. Labour Court Consideration The Labour Court noted that the employer had not maintained working time records in a manner which complied with the Act. In circumstances where an employee takes a working time claim and the employer has not kept proper records, the onus is on the employer to prove their case. The Labour Court determined that “the [employer’s] testimony was unreliable in all material respects. By contrast, the Court has concluded that the [employees] gave honest evidence to the best of [their] recollection.” The Labour Court went on to state that the requirement for the employees to work more than an average of 48 hours, and indeed up to 98 hours in one week, was a particularly serious contravention of the working time rules. Accordingly, they awarded both employees €10,000 each. Learning Points There are some key learning points that we can take away from this case:
- Maintaining proper working time records is absolutely vital. The statutory record form is set out in S.I. No. 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations and it is strongly recommended that employers utilise this form. Importantly, the failure to maintain adequate records was quite detrimental in this case as it meant that the employer could not support their arguments with evidence.
- It is very important to be mindful of working time rules, in particular the 48 hour working week. Working time rules are derived from a health and safety directive from the EU. Therefore, if an employer is breaching these rules, and this putting the health and safety of the employee at risk, then a tribunal will take a very dim view of the matter.
- Working time claims can be very costly. Each employee won €10,000 in this case with a €20,000 combined award. Employers are advised to conduct a review of their working time and record keeping compliance so as to avoid such costly legal proceedings.
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