DWT13118

The Rights Commissioner conducted an investigation into the complaints and arranged a hearing to give the parties an opportunity to make submissions and present evidence for his consideration. The Complainant did not attend the hearing.

Following the investigation the Rights Commissioner decided that the Complaints were not well founded.

The Complainant appealed to the 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 headquartered in Co. Monaghan. The Respondent’s also operate a sister transport company that is registered in Northern Ireland. The Complainant worked for the Respondents as a truck driver from the 20^thAugust 2005 until the 22^Ndof August 2011. The Complainant normally followed a route that took him over and back to the United Kingdom. His journey 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 complains that the Respondents contravened the indicated sections of the Act. The Respondents submit that they met all their statutory obligations to the Complainant.

Complaint regarding section 11 of the Act:

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 was allowed, and required to take, the daily rest periods set out in the Act. It submits that the firm has a culture of compliance with its statutory obligations. It submitted a copy of the Company Handbook that was supplied to the Complainant when he commenced employment with the company. It asks the Court to note that the Handbook contains a requirement that drivers comply with all statutory obligations.

It alleges that the Complainant interfered with the tachograph and that this gave rise to disciplinary sanctions being taken against him by the firm.

It submits documents that show that the Complainant was given training in the rules and regulations that govern driving hours, the use of tachographs and the principles of safe, eco driving.

It submits that the Complainant was otherwise scheduled his duties so 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 records of the Complainant’s working hours in the relevant weeks. It submits that those documents demonstrate that the Complainant was afforded daily rest periods in line with Section 11 of the Act.

It submits copies of “Fleetmatics” reports on the movement of the Complainant’s vehicle in each of the relevant weeks. It maintains that these reports further 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 received a daily rest period of 11 hours in each of the relevant periods of 24 hours that are the subject of the Complaint before the Court. He denied that he had completed or signed the OTW1 forms.

On the basis of this evidence the Court finds that the Complaint is not well founded.

Determination

The Compliant is not well founded. The appeal is not allowed.

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 required to take breaks from driving in accordance with section 12 of the Act. It further submits that the work schedule assigned to the Complainant facilitated the taking of such breaks.

Findings of the Court

In evidence the Complainant stated that the respondent did not require him to work in a manner that contravened Section 12 of the Act.

On the basis of this evidence the Court finds that a complaint under Section 12 is not well founded.

Determination

The Court determines that the Complaint is not well founded.

Section 14

Section 14 of the Act states

• 
  (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
  • (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

    (b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

    (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

    (d) by a combination of two or more of the means referred to in the preceding paragraphs.

The obligation lies with the Respondent to show that the fact that the Complainant was required to work on Sunday has otherwise been taken account of in the determination of his pay.

The Respondent states that the Complainant’s rate of pay took account of the requirement to work on Sunday. However it offered no evidence in support of this assertion.

The Complainant submitted that he was paid a standard daily rate of pay whether or not he was required to work on Sunday.

Findings of the Court

The Respondent was paid wages in the amount of €351.51 per week. The Respondent presented no evidence to the Court that this figure contains an additional element of pay in respect of the obligation to work on Sunday.

From the information and evidence before it the Court cannot identify how or to what extent the obligation to work on Sunday has been taken into account in the determination of the Complainant’s pay. Accordingly the Court finds that the Respondent has failed to demonstrate compliance with Section 14 of the Act.

On this basis the Court further finds that the Complainant is well founded.

Determination

The Court finds the Respondent contravened section 14 of the Act. The Complaint is well founded. 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.

Findings of the Court

In evidence the Complainant stated that he was not required to work in excess of 48 hours per week in the relevant period.

On the basis of this evidence the Court finds that the Complaint is not well founded.

Determination

The Complaint is not well founded.

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 hours of work were 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/text 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. It further argues that he was made aware 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 to give, other than in unforeseen circumstances, 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 starting and finishing 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 for the contraventions of Section 17 of the Act.

Section 19

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.

Determination

The Court determines that the Complaint is not well founded. The decision of the Rights Commissioner is upheld.

Section 21

Section 21(1) of the Act states

Subject to the provisions of this section , an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

• • (a) a paid day off on that day,

    (b) a paid day off within a month of that day,

    (c) an additional day of annual leave,

    (d) an additional day's pay:

  
  
  Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection , be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The Respondent submits that it complied with the provisions of Section 21 of the Act.

Findings of the Court

Statutory Instrument No 473/2001 in relevant part states

• 
  3. The records required to be kept under section 25(1) shall contain the following particulars and documents —
  • 
    (i) the days and total hours worked in each week by each employee concerned,(ii) any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,

    (iii) any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

• (1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

• 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.

It is common case that the Complainant worked on three public holidays in the relevant time. The Respondent did not produce records to the Court of payments under Section 21(1) to the employee in respect of any of those days. The Respondent did not present any evidence to the Court that it otherwise applied the provisions of Section 21(1) of the Act to the Complainant in respect of any of those public holidays.

Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with Section 21 of the Act in respect of the three Public Holidays on which the Complainant worked in the relevant time. The Court therefore decides 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.

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.