As you will have seen in the news in the last few weeks, a Kepak employee has brought to light a major issue in working hours today.
The claimant was awarded €7,500 for answering emails out of her contractual hours, over the course of her employment. The case showed that the company was aware that the employee was working over the limit of 40 hours as stated in her contract. She claimed in her submission that she was working around 50-60 hours per week. This was mainly due to the fact she was expected to organise and undertake five visits a day, input computer information and map out her weekly visit plan in advance, as she had strict KPIs to meet. This all led to her feeling overwhelmed and a pressure to complete the remainder of her work from home.
A grievance complaint was never made for the additional hours worked, and she remained under probation for the duration of her employment. However, the Labour Court also noted that the company did not follow the Organisation of Working Act requirements to keep detailed records of employee working hours and breaks.
This case is relevant today as some employers expect their employees to be available 24:7 and ‘always available’. The employer appealed the decision, but the Labour Court felt they failed to provide any evidence about whether or not she actually worked the hours. Evidence of emails showing her working from 5pm to midnight on a regular business, without any contradiction from the employer, were also accepted.
The labour court held the employer liable because the employer knew the complainant was working beyond her normal working hours and took no steps to prevent that. It is important for employers to remember the obligations they have with regard to the 11 hour work break right, as breaching this is a health and safety issue. There was no system in operation by the employer to record an employee’s worked hours.
In addition, on one particular date, the employer actually questioned why she had sent an email at 3.51am, and yet nothing was ever mentioned again about this- confirming that the employer was aware of her working these hours, but no action was taken.
This case- which is certainly not the first, and will not be the last, has offered a reminder to employers to give clear guidance as to what is expected of the employee, and to try and steer away from the 24:7 work ethic that is often prevalent. Employees should actively manage the hours worked by employees, whether they are present or working remotely. They should also bear in mind that the average working week can be calculated over a reference period of either four or sometimes 6 months, in any twelve months.
In this case, it may have been useful to stipulate in the employee’s contract whether working hours may vary week to week, depending on the work load. For further information and support, contact email@example.com