DWT13141

The Court gave its Determination on questions of law arising in the case in Determination DWT1389. In that Determination the Court held that The Claimant’s claims under s.15 of the Act were properly before it in relation to the period ending on 30^thJanuary 2012, but not thereafter. For the reasons set out therein the Court held that the complaints under s.17 of the Act were fully maintainable. This Determination should be read in conjunction with that Determination.

In DeterminationDWT1389 the Court concluded as follows: -

• There is no indication in the decision of the Rights Commissioner as to how he computed the monetary award made in favour of the Claimant or of the periods of time in which the contravention found to have occurred took place. Nor was any evidence adduced, or information furnished to the Court, on that point. Accordingly the Court will reconvene the hearing so as to hear the parties on the form of final determination that it should make in this case.

At the reconvened hearing Counsel for the Claimant told the Court that he accepted that no contraventions of s.15 of the Act occurred in the period up to 30^thJanuary 2012.

Complaint under Section 17

In light of the concession made on behalf of the Claimant in relation to s.15 the only issue for determination by the Court is whether s.17 was contravened in relation to the Claimant. Section 17 provides: -

• 
  17.—(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.

According to the Claimant the duties to which he was assigned by this mode of communication sometimes required him to commence work between 4:00 am and 5:00 am. He was uncertain as to the number of occasions on which this occurred in the relevant period but he did accept that it was infrequent.

With regard to finishing time, the Claimant’s evidence was that he was rarely if ever informed of his expected finishing time. He told the Court that when he returned to his base he was regularly directed to undertake a further delivery and his finishing time was dictated by the duration necessary to undertake the additional duty. He said that within this arrangement his finishing time was unpredictable.

The Respondent
Mr Kevin Lucey, on behalf of the Respondent, told the Court that the Claimant, in common with all drivers, regularly started work between 5:00am and 6:00am. His evidence was to the effect that drivers, including the Claimant, were informed by text message each evening of the duties to which they were being assigned on the following day. These messages informed them of the trailer that they were to collect and the delivery that they were to make. He accepted that the driver’s starting time would be dictated by the time at which the delivery was to be made and the likely duration of the journey. Mr Lucey told the Court that finishing time was inherently unpredictable as it was influenced by such considerations as the length of time required to travel back to the Company’s base which in turn was often dictated by traffic volumes.

Submissions on behalf of the Respondent
Mr Purdy, of Purdy Fitzgerald Solicitors, for the Respondent, submitted that s.17 of the Act was inapplicable in this case. In reliance on the wording of subsection (1) of that section he submitted that it only applied in circumstances in which a worker did not have a normal or regular starting time. In the instant case, it was submitted, the Claimant did have a normal or regular starting time and this was clear from records put in evidence showing the times at which he started in the months of November and December 2011. These records showed that the Claimant consistently started work at or about 6:00 am. Mr Purdy submitted that it was an implied term in the Claimant’s contract of employment that he would start at that time.

In relation to finishing time, it was submitted that having regard to the nature of the road transport industry it was practically impossible to fix a definite time at which drivers would finish work as this was determined by the exigencies of the business. He said that where the Claimant was required to undertake additional deliveries this was due to unforeseen events and came within the exception contained at subsection (4) of s.17 of the Act.

The Claimant
Counsel for the Claimant, Mr Cian Moloney B.L., submitted that the Claimant’s contract of employment did not specify normal or regular starting finishing times and that s.17 of the Act was clearly applicable. Counsel also pointed out that the records relied upon by the Respondent related to a period prior to that relied upon by the Claimant in grounding his claim.

Conclusions of the Court

Construction of Section 17
The Court first considered the submission advanced on behalf of the Respondent to the effect that s.17 of the Act has no application in the instant case. Subsection (1) of that section limits it applicability to situations in which neither the employee’s contract of employment, an Employment Regulation Order, a Registered Employment Agreement or a Collective Agreement applicable to the employee specifies the normal or regular starting and finishing times of the employee.

This provision was characterised by the Respondent’s representative as ‘a peculiar provision’. It was suggested that the requirement to give notice only applies where normal or regular starting and finishing time is not specified in an employee’s contract of employment but that where such a term is specified an employer can vary the starting or finishing time without any notice.

It seems to the Court that the underlying rationale of the provision is perfectly clear. It is directed as making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obligated to start or finish work at any other time as any variation from the contractual term can only be by mutual agreement. Where, however, an employee’s starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work / life balance reasonable notice of starting and finishing times must be furnished by the employer.

The Court has looked at the contract of employment furnished to the Claimant and dated 15^thJune 2009. At clause 5 it provides: -

• “You are required to work 39 hours per week. Due to the nature of the business from time to time you may be required to work additional hours, and you will not be entitled to any additional salary in respect to any such additional hours of work…”

It was submitted on behalf of the Respondent that a starting time of around 6:00am was an implied term of the contract. That submission was based on the pattern of the Claimant starting times in the months of November and December 2011. The Claimant made no complaint in relation to that period. His complaint relates to the period between February and April 2012 when he worked as a driver. No records were furnished to the Court in relation to that period. The practice of the Respondent in informing the Claimant by text of his duties and consequently of his starting time is also wholly inconsistent with a contractual term, implied or otherwise, fixing his normal or regular starting time. Moreover, it is well established that a term cannot be implied into a contract which contradicts or is inconsistent with a written or express term of the contract.

The Claimant told the Court that he was not complaining at being required to start work at short notice between 5:00am and 6:00am. His complaint relates to those occasions on which he was required to start work at a significantly earlier time without adequate notice and being required to work late into the evening, again without adequate advance notice.

The Court accepts the Claimant account of how his starting times were determined and that he was occasionally required to start work at or about 4:00am. Twenty-four hours’ notice was not given. That contravened s.17 of the Act.

Finishing Times
The Claimant evidence, which the Court accepts, was that he rarely if ever had adequate advance notice of his finishing times in the period during which he worked as a driver. He was assigned duties as he became available and his finishing time was entirely dependent on the length of time necessary to undertake those duties. He did not know what those duties were until they were actually assigned. The Respondent contends that where the Claimant was assigned additional duties it was because of unforeseen circumstances arising and it relies on subsection (4) of s.17 in defence of its position.

The language of s.17(4)of the Act (which is set out earlier in this Determination) indicates that it is directed at a situation in which the requisite notice is given and some unforeseen event intervenes before the specified starting or finishing time. In this case no notice of finishing time was given. In any event, it is for the employer who seeks to rely on the subsection to establish on cogent evidence what the intervening events actually were and the basis upon which it is contended that they were unforeseen. No such evidence was proffered.

Accordingly, the Respondent cannot avoid liability by reliance on s.17(4) of the Act

Determination

The Court is satisfied that the Respondent contravened s.17 of the Act in relation to the Claimant. Accordingly his complaint under that section is well-founded. In relation to redress, the Court notes that the Rights Commissioner found that the Respondent had contravened sections 15 and 17 of the Act. He made an overall award of compensation in the amount of €9,000 without giving any indication as to the allocation of the award as between the separate contraventions to which it related.

The complaint under s.15 was not pursued in light of the Court’s preliminary Determination in the case. In these circumstances the Court must decide on the appropriate redress for the contraventions of s.17 of the Act which it found to have occurred. In considering that question the Court notes that the contraventions occurred over a relatively short period (between February and April 2012) and that the incidents giving rise to the Claimant’s complaints regarding his starting time occurred infrequently. However the incidents in which he was not given notice of his finishing time were more frequent.

In all the circumstances of the case the Court considered that the appropriate mode of redress is an award of compensation in the amount of €2,500. The Respondent is directed to pay the Claimant compensation in that amount. No element of this award is in respect to remuneration.

The Respondent’s appeal is in part allowed and the Rights Commissioner’s decision is varied accordingly.

Signed on behalf of the Labour Court



Kevin Duffy
29th October 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.