DWT13117

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 between December 2009 and the 10^thNovember 2010. The Respondents state that the Complainant commenced working for them from the 6^thOctober 2010 until the 10^thNovember 2010. They submit that prior to that date the Complainant worked for M.A. Transport Ltd that is based in Northern Ireland.

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

The Complainant submits that he commenced employment with the Respondents in December 2009. The Complainant submits a number of documents in support of this contention. Firstly he submits a document headed Grange Transport that refers to him as the driver of a vehicle bearing the registration number BCO3BNZ. This document is attached to another document that bears the date 21^stMay 2010. He submits that the two documents are linked and show that he was working for the Respondents as early as May 2010. He submits that the Respondents effectively traded interchangeably as Grange Transport and M.A. Transport Ltd. He further submits a document dated 21 January 2010 that is signed by one of the Respondents and is on note paper bearing the heading M.A. Transport Limited. That note states

• Mr Krastan Krastev is authorised to drive this vehicle BC 03 BNZ. Mr Krastev has only taken up employment with the above named company. He has no previous tachograph charts.

• Mr Krastev is authorised to drive this vehicle BC 03 BNZ. Mr Krastev has only taken up employment with the above named company. He has no previous driving records with our company.

• Mr Krastev is authorised to drive this vehicle BC 03 BNZ. Mr Krastev has only taken up employment with the above named company. He has no previous tachograph records.

  He collected BC 03 BNZ from Dublin port

Mr Kranstan Krastev is authorised to drive this vehicle BC 03 BNZ. Mr Krastev has only taken up employment with the above named company. He has no previous cards.

It is stamped M.A. Transport Ltd.

He submits similar letters on M.A. Transport Limited headed paper for the 23^rdand the 29^thMay 2010.

The Respondent submits that he commenced working with the firm on the 6^thOctober 2010. It submits a copy of Form 12A Application for a Certificate of Tax-Free Allowances submitted by the Complainant to the Revenue Commissioners that states that his employment with Grange Transport commenced on 6 October 2010. It further submits a notice of prosecution, dated 17^thAugust 2010 issued by the Sussex Safer Roads Unit of Sussex Police in respect of an alleged offence committed on 9^thJuly 2010 that involved a vehicle bearing the registration number BC O3 BNZ that was issued to M.A. Transport Ltd. Attached to the notice is a copy of a form completed by Mr McAnenly that names Mr Krastan Krastev was the driver of the vehicle on the relevant day. The Respondent attached a copy of a statement a Mr David Wallace who describes himself as a Vehicle Examiner as defined in the Road Traffic (Northern Ireland) Order 1995. In the statement Mr Wallace records a conversation with Mr Krastan Krastev in respect of a motoring offence that took place in and around the 24^thJune 2010. In that statement Mr Krastev states that he was, on that day, employed by M.A. Transport Limited. On this basis the Respondent submits that the Complainant commenced working for Grange Transport on the 6^thOctober 2010 and that no cause of action under the Act can arise before that date.

Findings of the Court

The documents submitted by the Respondent establish, on the balance of probabilities, that the Complainant commenced working for the Respondents on 6 October 2010. The Complainant signed and submitted a form to the Revenue Commissioners that carries a declaration that states “I declare that all the information given by me on this form is correct to the best of my knowledge and belief.” In that document he states that his employment with Grange Transport, his employer, commenced on the 6^thOctober 2010. Moreover the Respondent submitted a record of an interview with the Complainant conducted by the statutory authorities in Sussex in which the Complainant is recorded as stating that, in June 2010, he was employed by M.A. Transport Limited, a company registered in Northern Ireland. The Complainant did not challenge these documents.

Finding

On the basis of that evidence the Court finds that the Complainant’s employment with the Respondent commenced in October 2010.

The Respondent is appealing against the decision of the Rights Commissioner.

The Rights Commissioner upheld complaints of alleged contraventions of Sections 11 and 12 of the Act. The Respondent submits that it complied with the provisions of both of these sections and asks the Court to set aside the Rights Commissioner’s decision.

The Complainant, in his submission states that he worked in accordance with the law during the last four weeks of his employment. As the Complainant only worked for the Respondent for a period of four weeks, the Complainant effectively submits that the Respondent complied with the law. Accordingly the Complainant has failed to identify an infringement of Sections 11 and 12 of the Act.

Determination:

The Complaints under Sections 11 and 12 of the Act are not well founded. The decisions of the Rights Commissioner are set aside.

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.

Determination

The Complaint is not well founded. The decision of the Rights Commissioner is set aside.

The Rights Commissioner decided that a complaint under Section 17 of the Act was well founded. The Respondent appealed against that decision.

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.

The Respondent occasionally instructed the Complainant to collect or deliver additional loads. On those occasions he was notified by sms/txt message of the changes to his work schedule. He 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 unforseen 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 arising out of the contravention of section 17 of the Act.

The Court so determines.

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.