Work based legal questions

Fawkon

I'm currently working for a clothing retail store and have a few questions that you guys may be able to help me with.

Is it legal for a job to not pay you for time worked, e.g when we all start at 8:30am or on a shift such as 11:45am we are not paid until the hour actually starts meaning at 9am or 12. For those first 15 minutes or half hour we are actively working on the shop floor to get it ready for the day ahead.

Also we have a fingerprint clock in system and once or twice I have mistakenly not clocked out at the end of my shift and it would seem from my paycheck that I did not get paid for that days work. Is this legal?

Another one for you, although it's highly unethical I feel it is probably legal but would love to know for sure. Is it legal to hire someone for a senior role without ever advertising the position internally or externally. The manager hired a completely unqualified and incompetent 22 year old woman as supervisor (with no previous supervisory experience) when others in the job are much MUCH more qualified. (We all believe this girl is a family friend as they are from the same area).

I'm about to leave the job soon but would like to know to pass the information onto colleagues who are staying and to also request payment for work that has thus far gone unpaid.
I also never signed a contract and have been at the job about 7 weeks.

Kristopherus

Fawkon wrote: »

I'm currently working for a clothing retail store and have a few questions that you guys may be able to help me with.

Is it legal for a job to not pay you for time worked, e.g when we all start at 8:30am or on a shift such as 11:45am we are not paid until the hour actually starts meaning at 9am or 12. For those first 15 minutes or half hour we are actively working on the shop floor to get it ready for the day ahead.

Also we have a fingerprint clock in system and once or twice I have mistakenly not clocked out at the end of my shift and it would seem from my paycheck that I did not get paid for that days work. Is this legal?

Another one for you, although it's highly unethical I feel it is probably legal but would love to know for sure. Is it legal to hire someone for a senior role without ever advertising the position internally or externally. The manager hired a completely unqualified and incompetent 22 year old woman as supervisor (with no previous supervisory experience) when others in the job are much MUCH more qualified. (We all believe this girl is a family friend as they are from the same area).

I'm about to leave the job soon but would like to know to pass the information onto colleagues who are staying and to also request payment for work that has thus far gone unpaid.
I also never signed a contract and have been at the job about 7 weeks.

You're in the job for 7 weeks. You have absolutely no rights and you could be sacked in the morning without a reason. I'd be slow to stir things up. But by all means apply for payment for the days you forgot to sign out. You are entitled to payment for time worked. What do your senior colleagues think of the first half hour not being paid?

L1011

Fawkon wrote: »

Is it legal to hire someone for a senior role without ever advertising the position internally or externally.

In the private sector you can hire who you want for whatever you want.

IRAC War

Your issues are fairly straight forward but to stay true to my username I shall restate them.

You are being asked to work outside of your stated start and time.

You have forgotten to clock out. I couldn't find anything on this - pointers most welcome!

Relevant Law:

National Minimum Wage Act, 2000

8.—(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9 , “working hours”, in relation to an employee in a pay reference period, means—

...

(vi) any notification by the employee's employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

(vii) section 18 of the Organisation of Working Time Act, 1997 , or

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

Organisation of Working Time Act, 1997

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

Application

It would seem that subject to you not falling under the minimum wage threshold the case would turn entirely on your contract of employment. If this has general provisions within it allowing for flexible hours, extra time and provides for a salary as many retail contracts do then there is no issue - as far as I can see - in asking you to do additional time.

Issues may arise if your contract states a start and finish time subject to section 17 of the OWT Act 1997 above. One would need to look at the definition in decisions of 'time to time'. It is submitted that a standing order can not be from 'time to time', however this is conjecture on my part.

Conclusion

Given your short term of employment, enforcing your employment rights would be difficult. In addition given the possible need for a reference, any 'barrack-room lawyering' especially based on the musing of procrastinating law students sitting repeats in 7 hours time may be ill advised.

Complete conjecture on your second point - one would assume you would need to be paid for the time you worked, you would simply need to prove you were there at the relevant times. If you clocked in or out this would seem to be a simple matter. However this would not prevent an employer from initiating disciplinary procedures for failing to clock in or out correctly as instructed.

Please note I simply like practising legal research and answering questions (badly) in an exam style. You should not rely on anything stated above.

Fawkon

We are all paid hourly, nobody is on a salary except maybe the manager.

Even if I am there only 7 weeks I still feel I do have the right to get paid for the work/hours that I have worked no? Yes many of my other rights may not be enforceable but surely that basic right of payment is?

I also do not require a reference from this company, my C.V and past references are more than strong enough to land me other jobs, this was just a stop gap job to help pay my rent. I am more asking for the poor guys who are staying in the job and in my mind are getting screwed over.

nuac

Mod
Sorry, against Forum rules to seek or give legal advice
Have to close thread