A migrant worker who accused a business of faking her initials to make up working time records has won over €22,000 for multiple breaches of her employment rights.
A Workplace Relations Commission (WRC) adjudicator said he could not accept as "authentic" a series of documents produced by ice cream parlour operator Melt Gelato Ltd, in response to complaints by the worker, Anita Popov, alleging excessive working hours, unfair dismissal, discrimination and other breaches.
Ms Popov's barrister had claimed that "reams and reams of fabricated documents" had been handed in to the employment tribunal by her former employer, including material presented as a contract of employment and statutory working time records.
Ms Popov, a Romanian national and mother-of-two, told the tribunal earlier this year she had been required at times to work alone for 15-hour days, 7.30am to 10.30pm, without taking lunch or rest breaks at her employer’s café and ice cream parlour at the on the Trim Road in Navan, Co Meath.
Giving evidence earlier this year, she said her hours had been so long her baby son did not recognise her by the time her employment ended.
"The minimum I think was 50 [hours]… I have a few weeks where I work less than 20, 19 hours – two weeks in one year. The rest just like that, 70, 60, 80 hours," she said.
"When I finished, I don’t know nothing, just the work, 7.30am to 10.30pm… I go home, wash, make food; the kids [are] asleep. When I go to work, the kids [are] asleep. When I finished work, my baby had one year, and he don’t know me; he don’t know to say 'mama’," she added.
Ms Popov’s barrister, Lars Asmussen BL, appearing instructed by solicitor Neil Cosgrave, submitted that his client’s boss once referred to her as "the perfect machine who takes care of anything". He said "reams and reams of fabricated documents" had been handed in to the tribunal by the business.
The employer maintained Ms Popov never worked more than 48 hours a week, with just one exception. Proprietor of Melt, David Marsh, told the tribunal the complainant "only worked 19 hours per week and did get her required breaks".
Giving evidence, Ms Popov said she never saw or signed a series of purported roster documents dated late 2022 and early 2023 which had been produced by her former employer in response to her multiple working time complaints. When examples of the rosters were put before her, she said repeatedly that they were "fake" and that the initials "A.P." which appeared on them were not her signature.
She said the true record of working hours at the business had been kept in a book at the shop where staff would write in their daily hours and in texts to her former employer stating what hours she had worked. Her lawyers entered a series of photos she said she had taken of this book indicating that Ms Popov had worked in excess of 60 hours in ten weeks in early 2023 – and in excess of 70 hours in three of these weeks.
Ms Popov’s evidence was that her employer’s practice between January 2022 and the end of her employment was to pay her for 19 hours a week via payroll while making variable payments of up to €100 some weeks. Mr Asmussen submitted that on this basis she was being underpaid by €445 to €545 a week in breach of the Payment of Wages Act.
Billy Wall of Peninsula Business Services, acting for the employer, said: "My client offered gainful employment… [Ms Popov] was paid for the hours that she did work. In terms of 60 to 90 hours per week, that’s a total fabrication of the truth."
Ms Popov said she had started off with an hour’s work each morning cleaning the premises at a rate of €8 an hour. The position of Mr Marsh and his wife Sarah Clarke, a co-owner of the business, was that Ms Popov did not commence her employment until April 2022, and later had a gap in her service. Mr Wall submitted that Ms Popov did not have sufficient service to enjoy the protection of the Unfair Dismissals Act.
The complainant pointed to WhatsApp messages and photos she said related to the employment dating from June, July and September 2021, which were opened to the hearing. A September 2021 photo showed her behind the counter in an apron marked "Melt Gelato", she added.
In his evidence, Mr Marsh claimed the September 2021 photo was "fabricated". Although he admitted the shop had the aprons like the one shown in the picture, he said: "Photoshop is very good."
The complainant said that after she told her employers she was pregnant in September 2022, Ms Clarke said she was "not entitled to stay home" and that they would "find somebody else to do the work and I’d lose the job". Ms Clarke did not give evidence at the hearing.
The company’s position is that Ms Popov broke her service between April 2022 and October 2022, but that she made visits to the store with her children and the directors gave her money at the time.
"I was working all this period. They throw me like a few hundred, you know, for 70 hours what I work that summer," Ms Popov said.
Ms Popov’s lawyer told the tribunal that her employment came to an end in May 2023 as a result of her employer’s handling of an alleged assault on her by a colleague in a row over working hours.
Addressing the working time records, adjudicator Roger McGrath wrote in his decision that he would accept the "ad hoc contemporaneous picture records" provided to the tribunal by Ms Popov as "a more accurate reflection of the hours she worked than those provided by the respondent".
"I do not accept the [timekeeping] records provided by the respondent are authentic," Mr McGrath wrote.
He also recorded in his decision that he did not consider the contract of employment, the employee handbook and other documents provided by the respondent to be "authentic". He ruled the employer in breach of the Terms of Employment (Information) Act, and awarded Ms Popov three weeks’ pay totalling €3,037.50.
"Although she may not have worked 15 hours per day, every day, it would seem there were many instances when this took place," he wrote.
He considered it impossible, given the working hours and the fact that the complainant had been alone on the premises, that she had received her full entitlement to breaks and rest periods under the working time legislation.
Mr McGrath concluded there had been multiple breaches of the Organisation of Working Time Act in the case, comprising the failure to pay a Sunday premium, an average working week exceeding 48 hours over a specified reference period, the lack of pay for public holidays and annual leave, and the failure to provide breaks during shifts and the rest breaks required daily and weekly by statute.
He awarded Ms Popov ten weeks’ wages at a daily rate of €202.50 for the working time violations, plus a premium of one third for 24 Sundays she worked in the six-month period in his jurisdiction.
On Ms Popov’s claim that she was left short on her wages given the hours worked, Mr McGrath concluded on the balance of probabilities that Ms Popov "worked more hours than she was officially paid for, but she did receive top-ups in cash", making it "difficult to estimate" deductions or underpayments. He awarded the worker ten days’ pay, €2,025 under the Payment of Wages Act.
Mr McGrath also found the employer to have taken a "cavalier" and "wholly unreasonable" approach to the complaint of workplace assault made by Ms Popov and had failed to carry out an investigation. He concluded her dismissal had been unfair and made an award for €3,240 in compensation.
Further claims of maternity-related discrimination were ruled out of time. In total, Mr McGrath has ordered Melt Gelato Ltd to pay Ms Popov €22,478.
