Working Excessive Hours and Constructive Dismissal

Excessive Working Hours and Constructive Dismissal

Can an employee resign if they are working excessive hours? Can they then pursue a claim of unfair dismissal by way of constructive dismissal?

The case of Melissa Moran v C.H. Kane Ltd Supervalu (ADJ – 000316262) was decided on 08 June 2022. This case is interesting because it addressed the question of whether an employer can be liable under the Organisation of Working Time Act 1997, when an employee worked extra hours off their own accord and against instructions from the company not to do so.

Background

Melissa Moran (the Complainant) commenced employment with C.H. Ltd Supervalu (the Respondent) in February 2016 as a Sales Assistant. In October 2019, the Complainant was promoted and became a Trainee Assistant Manager.

Issues arose, and as a result, the Complainant resigned from her position. The Complainant then brought a claim to the WRC under the Unfair Dismissals Act, 1977 on the grounds of constructive dismissal.

The Complainant also raised a complaint under the Organisation of Working Time Act 1997 on the grounds that she had allegedly been required to work 50 hours every week over a six-day period.

The Respondent claimed that the Complainant was never required, or even asked, to work beyond her contracted hours of 45 hours a week. They further argued that the Complainant had been told on numerous occasions not to come into the store when she was not rostered.

Case Law and Legislation

The Adjudication Officer pointed to section 15(1) of the Organisation of Working Time Act 1977 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 calculated over a period that does not exceed –

a)     4 months, or…”

The Adjudication Officer noted the case of Svoboda v IBM Ireland (DWT0818). In this case the Complainant had worked in excess of 48 hours a week despite the fact that her employer had told her not to do so. The Labour Court had noted that due to the genuine efforts of the employer to deal with the issue, the contravention of the Working Time Act was “technical and non-culpable in nature and that the Complainant was herself primarily responsible for what occurred”.

In Svoboda, the Labour Court also noted that section 15 of the Act imposes a form of strict liability on employers. What this means is that the Act does not stipulate that that an employer “may not knowingly permit an employee to work excessive hours”. They held that this interpretation of the section was consistent with the aim pursued by Directive 93/104/EC which was transposed into Irish law by the Organisation of Working Time Act 1997. Article 1 states that the objective of the Directive “is to lay down minimum safety and health requirements for the protection of those at work”.

The Svoboda case has been cited with approval in A Truck Driver v A Logistics Company (ADJ-00025784) and more recently in An Employee v An Employer (ADJ-00028485).

Decision

The Adjudication Officer concluded that the duty to comply with the Organization of Working Time Act 1997 is borne by the employer and not the employee. On this basis, they found that when an employee works more than 48 hours a week, the employer will be held liable. This liability remains even where the employee willingly worked excessive hours or failed to take breaks.

The Adjudication Officer distinguished this case from the Svoboda case on the grounds that while the Respondent had not required the Complainant to work more than 48 hours a week, they had failed to sufficiently monitor the attendance pattern in order to ensure that she did not do so.

The Complainant was awarded €3000 in compensation.

Takeaways

The big takeaway from this case for employers is that it is their duty to ensure that their employees do not work excessive hours. They can still be held liable under the Organisation of Working Time Act 1997 even when they have told an employee not to work more than their contracted hours.

It is insufficient for employers to say that they did not know that the employee was working excessive hours. In order to avoid liability, employers will have to show that they made bone fide efforts to stop the Complainant from working excessive hours.

Therefore, as said in Svoboda, employers should have “in place some system by which the employee’s hours of work can be monitored and appropriate corrective action taken if needed”.