DWT13116

Following the investigation into the complaints, the Rights Commissioner decided to extend the time in accordance with Section 27(5) of the Act by a period of six months. The Rights Commissioner decided that the Respondent infringed sections 11, 12, 15, 17, 19 and 20 of the Act. He awarded the Complainant compensation in the sum of €4,500.

The Respondent appealed to this Court under section 28(1) of the Act against the Decision of the Rights Commissioner. The case came on for hearing before the Labour Court on the 26^thApril 2012. The parties were afforded the opportunity to make additional written and oral submissions to the Court. Final submissions from the parties were received by the Court on the 17^thJune 2013.

Background

The Respondents operate an international haulage business that is head quartered in Co. Monaghan. The Respondent’s also operate a sister company that is based in Northern Ireland. The Complainant states that he worked for the Respondents as a truck driver from the 21^stMarch 2010 until 17 September 2010. The Respondents state that the Complainant commenced working for them on the 5^thJune 2010.

The Complainant normally followed a route that took him over and back to the United Kingdom. His schedule involved him working or being away from home six days each week. Twice each month he was away from home for seven successive days. The Complainant submits that the Respondents failed to comply with the indicated provisions of the Act. The Respondents submit that they met all their statutory obligations to the Complainant.

Preliminary Issue

It is common case that the Complaint’s employment with the Respondent finished on the 17^thSeptember 2010. The Complaints were submitted to the Rights Commissioner on the 1^stMarch 2011. Section 27 (4) of the Act states

• A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 27(5) states

• Notwithstanding subsection (4) , a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The Respondents appealed against this decision to this Court. It submits that no grounds for extending time have been advanced by the Complainant.

The Complainant submits five grounds for extending time.

The Complainant submits that he is a not an Irish National, that the Respondent took specific steps to put in place procedures to breach the Regulations relating to driving, that he did not receive from his employer a document setting out his hours of work, he was not presented with OWT1 forms in the course of his employment and finally that there was an obligation on the employer to bring the provisions of the legislation to his attention at the commencement of his employment.

Findings of the Court

The Court has examined the arguments for an extension of time made by the Complainant. In order to extend time the Court must be satisfied that “the failure to present the complaint within that period was due to reasonable cause”. It is against the criteria set out in the Act that the Court must assess the request for an extension of time. This Court has, inCementation Skanska (Formerly Kvaerner Cementation) Limited AND Michael Moriarity (DWT0340)set out the test to be applied when considering applications for extensions of time in the following terms: -

• It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and thedelay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
  
  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. The Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

Determination

The application for an extension of time under Section 27(5) of the Act is not justified in this case. The decision of the Rights Commissioner in this regard is set aside.

Period of Employment:

The Complainant submits that he commenced employment with the Respondents on the 21st March 2011. He submits copies of pay slips that date from the 11^thJune 2006. He also submits copies of letters from M.A. Transport Limited dated 25 May 2010 and 28 June 2010 that indicated that he is employed by that company at those times. However he submits that the Respondents were paying him as an employee of Grange Transport at that time.

The Respondent submits that the Complainant commenced working with the firm on the 5^thJune 2010. It submits copies of a contract of employment signed by the Complainant on the 3^rdJune 2010 that records his commencement date as the 5^thJune 2010. It submits copies of pay slips covering the period between the 5^thJune and the 17^thSeptember.

It is common case that the Complainant’s employment terminated on the 17^thSeptember 2010.

Findings of the Court

The evidence before the Court supports the contention that the Respondent employed the Complainant between the 5^thJune and the 17^thSeptember 2010 when he resigned his position with the Company.

The Court notes the document dated 28 June 2010 that purports to state that the Complainant had recently taken up employment with M.A. Transport Limited and that he had no previous driving records with that company. The Court notes that both sides maintain that the Complainant was working for Grange Transport on that date. The Court further notes the document dated 21 August 2010 that bears a stamp in the style of “Grange Transport Moybridge, Emyvale, Co Monaghan” that states

• “Mr Kestutis Mikulskis is authorised to drive this vehicle 04 MN 2486. Mr Mikulskis has only taken up employment with the above named company. He has no previous cards.”

The Court finds that the there was some irregularity at play regarding the operation of the tachograph and the maintenance of records in the various vehicles operated by both Grange Transport and M.A. Transport Limited. These irregularities raise doubts regarding the reliability of those records and the Court has taken those doubts into account where relevant elsewhere in this determination. They also suggest that there is a link between the two companies Grange Transport and M.A. Transport Limited that may involve an inter changeability of drivers between the two of them. However it does not assist the Court determine the period during which the Complainant was employed by Grange Transport. The evidence that assists the Court in deciding that issue is the pay slips submitted by both sides and the contract of employment submitted by the Respondent. Both of these documents date the Complainant as commencing work with Grange Transport on the 5^thJune 2010. In the absence of any evidence to the contrary the Court finds that the Complainant commenced working for the Respondent on that day.

Substantive Complaints

Section 11

Section 11 of the Act states

• An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Respondents submit that the Complainant received the breaks set out in the Act. It submits that the firm has a culture of compliance with all of its statutory obligations. It submitted a copy of the Company Handbook that it supplied to the Complainant when he commenced working for the firm. It submits that the Complainant was given training on the rules and regulations regarding driving hours and the use of tachographs and the principles of safe, eco driving. It submits that the Complainant was otherwise scheduled duties in such a way as to enable him to avail of the rest periods set out in Section 11 of the Act. It submits copies of OWT 1 forms that it maintains are accurate copies of the Complainant’s working hours in the relevant weeks. It submits that those documents demonstrate that the Complainant did not work in excess of 48 hours in any of the relevant weeks. It submits copies of “Fleetmatics” reports on the movement of the Complainant’s vehicle in each of the relevant weeks. It submits that these demonstrate that the Complainant received a daily rest period of 11 hours on each of the relevant days that are the subject of the compliant before the Court.

Findings of the Court: -

The Complainant gave evidence to the Court. In that evidence the Complainant informed the Court that he was instructed to take his breaks when the truck was being unloaded. He said that he was required to remain with the truck and or be available to attend to the truck at all times whilst it was being, or queuing to be, loaded and unloaded. . He denied that he had completed or signed OTW1 forms.

The Respondent gave evidence to the Court to the effect that the Complainant was scheduled to work in compliance with E.U. Regulation No 561/2006. He said that the Complainant was scheduled all relevant breaks under that regulation. He said that the Complainant was specifically allowed a daily rest break in accordance with the Regulation.

The Court notes that the Respondent did not give evidence of compliance with section 11 of the Act. Rather he gave evidence that the Complainant’s hours complied with Regulation No 561/2006. The vehicle driven by the Complainant was monitored by an approved and mandatory tachograph system in accordance with statute. The Respondent did not submit copies of those records to the Court in support of it contention.

The Court examined the OTW1 forms and finds that they are not reliable documents. The documents submitted are not original signed forms rather they are copies that are disputed by the Complainant. An examination of the forms leads the Court to the conclusion that they are photocopies of a signed blank form that was subsequently completed by an unidentified person. They were not completed by the Complainant and were not presented for signing by him when completed.

The Respondent is required by Section 25(1) of the Act to maintain records of the Complainant’s hours of work, and rest breaks. Section 25(4) of the Act provides that failure to do so, places the burden of proving compliance with the Act with the employer.

The Court finds that the Respondent has failed to keep records of the Complainant’s hours of work or of his rest breaks and accordingly has failed to meet the requirements of Section 25(1) of the Act. The Court further finds that the Respondent has failed to otherwise demonstrate compliance with the provisions of sections 11 of the Act.

Accordingly the Court finds the complaint well founded.

Determination

The Complaint is well founded.

The Court orders the Respondent to pay the Complainant compensation in the sum of €500

Section 12

Section 12 of the Act states

• 
  (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

  (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1) .

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2) .

The Respondent submits that the Complainant was instructed to take his statutory breaks and that its records show that he did so. In this regard it submits copies of reports generated by the Fleetmatics system that records activities related to the operation of its fleet of vehicles. It denies that the Complainant was instructed to do other than comply with the law in respect of both his breaks and the operation of the tachograph system. It told the Court that it did not have copies of the tachograph records to submit to it at that time.

Findings of the Court

The Court notes the provisions of Section 25 of the Act. The Court has already found that the OWT1 forms relied on by the Respondent are not reliable. The Court notes that no other record of the Complainant’s hours of work in the relevant period was produced by the Respondent. In that regard the Court examined the Fleetmatics report and notes that it records the activity of the vehicle rather than that of the driver. In any case the Court accepts the Complainant’s evidence that he was instructed to record his activity in a manner that maximised his driving time rather than complied with his entitlement for rest and breaks from driving. The Court also notes the letter issued by the Company dated 21 August 2010 that indicates that he had only taken up employment and had no previous cards. The Court is satisfied that the term “cards” refers to tachograph records. On that basis the Court prefers the evidence of the Complainant in this case.

Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with the Act.

Determination

The Court determines that the Complaint is well founded. The decision of the Rights Commissioner is set aside. The Court orders the Respondent to pay the Complainant compensation in the sum of € 500

Section 15

Section 15 of the Act states

• (1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—
  • (a) 4 months, or

    (b) 6 months—

    • (i) in the case of an employee employed in an activity referred to in paragraph 2 , point 2.1. of Article 17 of the Council Directive , or

      (ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

    (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5) , is specified in a collective agreement referred to in that subsection.

The Respondent maintains that the Complainant was not so required in the relevant period. The Respondent submits OWT1 forms in support of it contention that the Complainant did not work in excess of 48 hours per week.

Findings of the Court

In evidence the Complainant stated that he was required to work in excess of 48 hours per week in the relevant period. He states that OPW1 forms submitted by the Respondent are not an accurate record of his hours of work. He said that he could not recall signing the OWT 1 forms submitted by the Respondent. However he stated that he was unsure on this point. The Respondent submits that the Complainant signed the forms and that these discharge the burden of proving compliance with the Act.

The Court sought original copies of the OWT 1 forms but the Respondent was not in a position to produce them to the Court. The Court examined the copy forms submitted. The Court found that the forms are not reliable. The copy forms submitted cover the period 13 June 2010 until 19 September 2010. These extend over a period when the Respondent issued the Complainant a note that states that he worked for M.A. Transport. Moreover the forms, though signed at different times, appear to have been signed in precisely the same place by the Complainant on each occasion. The Court finds such an occurrence improbable.

Accordingly the Court rejects the forms as unreliable.

Section 25 (1) of the Act requires the Respondent to maintain records of hours worked. Section 3 (c) (1) of S.I. 473 of 2001 requires the Respondentto “ the days and total hours worked in each week by each employee concerned”The Court has found that the OWT1 forms submitted by the Respondent are not a reliable record of the hours worked by the Complainant and accordingly do meet the requirements of the Act. Where records that meet the requirement of section 25 of the Act are not kept, the burden of proving compliance with the Act lies with the employer. In this case the Respondent has failed to discharge that burden. Accordingly the Court finds that the complaint is well founded.

Determination

The Complaint is well founded. The decision of the Rights Commissioner is set aside. The Court orders the Respondent to pay the Complainant compensation in the sum of €500

Section 17

Section 17 of the Act states

• (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.

The Respondent submits that the Complainant was assigned loads to collect and or deliver, that his work was governed by ferry crossing times and that he was aware of those at all times before the commencement of his working week. Occasionally he was instructed to collect or deliver additional loads. On those occasions he was notified by sms message and was familiar with the relevant distances involved and the relevant ferry times. Accordingly the Complainant was at all times aware of his start and finish times on the first day of his week’s work. Alternatively he was made aware in advance of any changes to his work schedule at the first available opportunity in compliance with section 17 of the Act.

Findings of the Court

Section 17 of the Act requires an employer, other than in exceptional circumstances, to give an employee 24 hour’s advance notice of their start and finish times in order to enable them to plan their rest and recuperation time (seeAnglo Irish Beef Processors v SIPTU DWT19/2000).

Section 25 (4) of the Act states

• Without prejudice to subsection (3) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in relation to an employee, 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.

• a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),

The Respondent is required by S.I. No 473/2001 to keep records of such notifications. The Respondent in this case failed to keep such records and or produce such records to the Court. Accordingly Section 25(4) of the Act places the onus of proving compliance with Section 17 of the Act on the employer. In discharge of that onus the Respondent told the Court that the Complainant was aware of the relevant ferry times and of the relevant loads he was assigned. It submits that he was therefore on constructive notice of his proximate start and finish times by reference to his loads and the ferry times.

The Court does not accept the Respondent’s argument that this information alone discharges its obligations in this regard. The Complainant told the Court that he was notified of his duties by sms/ txt message and that these changed whilst he was in transit from one place to another. The Respondent submits that this was the exception. However it was not in a position to provide any evidence to support its contention in this regard. Accordingly the Court finds that the Respondent had failed to discharge the burden of proving compliance with the provisions of Section 17 of the Act.

Determination

The Complaint is well founded. The decision of the Rights Commissioner is set aside. The Court orders the Respondent to pay the Complainant compensation in the sum of €500.00 for, contrary to section 17 of the Act, failing to provide him with notice of the start and finish times of his daily work.

Section 19 and 21

Section 19 of the Act states

• (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
  • • (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

      (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

      (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

    
    
    Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

The Respondent submits that the Complainant received all of his holiday entitlements in accordance with law.

Findings of the Court

The relevant period in this case is a period of 16 days. No Public Holiday fell during that time. Moreover the Complainant has made out no case regarding the extent of the shortfall he suffered in respect of his accrued entitlement to annual leave in the 16 day period that is before the Court.

Determination

The Court finds that the complaint is not well founded.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
28th August 2013.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.