DWT12149

For ease of reference the parties are referred to as they were at first instance. Hence Mr. Rimas Tamauskas is referred to as “the Complainant” and Western Star Freight Limited is referred to as “the Respondent”.

Background

The Complainant has been employed as a Driver by the Respondent since 3^rdSeptember 2008. The complaints were presented to the Rights Commissioner on 8^thSeptember 2011.

Summary of the Complainant's Case

Mr Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant submitted to the Court that the Respondent contravened Sections 11, 15 and 17 of the Act in that he was not afforded adequate daily rest, he was required to work in excess of 48 hours per week and he was not provided with adequate information in relation to a requirement to work additional hours.

Mr Grogan referred to the Respondent’s statutory requirement to maintain adequate records and citedEuropean Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. No. 36 of 2012which contains,inter alia, statutory provision on an employer’s obligation to maintain records of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability.

Section 11

This Section requires that an employee is entitled to a rest period of not less than 11 hours in each period of 24 hours. Mr Grogan submitted to the Court that during the cognisable period covered by the claim the Complainant did not receive the requisite daily rest period on at least nine occasions.

Section 15

This section provides that an employer may not permit an employee to work more than 48 hours in any week calculated over a reference period of 4 months. Mr Grogan submitted that the Complainant’s average weekly working hours over the cognisable period consistently exceed 48 hours and averaged between 60 and 75 hours per week.

Section 17

This section provides that an employer shall notify an employee at least 24 hours in advance of a requirement to work overtime. Mr Grogan submitted that the Complainant was not provided with the required notice; he was informed the previous evening of his rostered hours for the following day.

Summary of the Respondent's Position

Mr David McParland B.L. instructed by Dermot O’Neill & Co. Solicitors on behalf of the Respondent conceded that it was in breach of Sections 11 and 17 of the Act. Mr McPartland provided records to demonstrate the working hours of the Complainant and held that any breaches which occurred were minor.

The Managing Director of the Company told the Court that due to the nature of its business and how work was allocated to it, made it very difficult to provide 24 hours’ notice to the Complainant of any additional hours required, as stipulated by Section 17 of the Act.

Findings of the Court

The appeal before the Court was brought pursuant to Section 28 of the Organisation of Working Time Act 1997. S.I. 36/2012 made for the purposes of implementing Directive 2002/15/EC (and not Directive 93/104/EC) took effect after the claim was made and does not have retrospective effect.

Section 25 (1) of the 1997 Act requires an employer to keep records “in such form, if any, as may be prescribed as will show whether the provisions of the Act re being complied with.”

Subsection (4) provides that where an employer does not keep such records “the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The Respondent submitted details which had been extracted from Tachographs taken from the Complainant’s lorry. Having examined these records the Court finds that they have no probative value for the purposes of establishing compliance with the provision of the Act. Accordingly the Court finds that the Respondent has failed to discharge the obligations placed upon him by virtue of Section 25(1) of the Act.

The Respondent accepted before the Court that there were breaches of the Act in respect of Section 11 and 17. The Court is satisfied based on the submissions made by both parties that the Complainant was required to work excessive hours, in contravention of Section 15 of the Act and accordingly does not uphold the Respondent’s appeal.

Determination

In measuring the quantum of compensation which is just and equitable having regard to all the circumstances the Court is mindful that the requirement to comply with the Act is a health and safety imperative and the entitlements of employees under the Act constitutes an important social right under domestic and European law. The Court has also taking account of the CJEU caseVon Colson & Kamann v Land Nordrhein – Westfalen[1984] ECR 1891 where the CJEU made it clear that where such a right grounded in European law is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Therefore, the Court awards the Complainant the sum of €5,000 compensation and the Respondent is directed to pay him compensation in that amount within six weeks of the date of this Determination. Furthermore, the Respondent is directed to ensure compliance with keep recording regulations in such form as are prescribed.

The Decision of the Rights Commissioner is varied accordingly and the Respondent’s appeal fails.

The Court so Determines.



Signed on behalf of the Labour Court



Caroline Jenkinson
26th September, 2012______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.