FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : NURENDALE LTD - AND - MR AINARS LUCENS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-123692-124483-wt-12/JT.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on 14th November, 2012. A Labour Court Hearing took place on 2nd April, 2013. The following is the Labour Court's Determination:
DETERMINATION:
This is an appeal by Mr Ainars Lucens (“the Complainant” or “the Worker”) under Section 28(1) of the Organisation of Working Time Act (the Act) against a Decision of the Rights Commissioner bearing the number r-123692, 124483-wt-12/JT. The Rights Commissioner decided, under Section 27 (2) of the Act, that complaints the Worker made that his employer, Nurendale Ltd t/a Panda Waste, (the Respondent, or the Company), infringed sections 11, 12, 17 and 26 of the Act, in the relevant time period, in the course of his employment, were not well founded.
Background
The Company in this case is the second largest domestic waste company and the largest skip collection, company in Ireland. The Complainant has worked for the Respondent as an artic driver since August 2004. The Complainant maintains that the Company has, over the course of his employment and specifically within the relevant statutory time period, consistently infringed the provisions of Sections 11, 12 and 17 of the Act. He further maintains that the Company penalised him within the meaning of and contrary to section 26 of the Act. The Company rejects the complaints. It maintains that it complies with the provisions of the Act and has taken steps to introduce systems to ensure compliance. It further maintains that it did not penalise the Complainant within the meaning of the Act.
The Rights Commissioner considered the complaints and following an investigation decided that none of them well founded. The Worker has appealed against that decision to this Court.
Complainant’s Position
Section 11
The Complainant maintains that records maintained by the Company reveal infringements of Sections 11 and 12 of the Act that occurred on a number of dates in the relevant statutory time period. He maintains that the records reveal infringements of Section 11 of the Act occurred on 26 June 2012, 7 July 2012 and the 10 July 2012 while infringements of Section 12 of the Act occurred on 23 February 2012, 6 March 2012, 24 March 2012, 26 March 2012, 11 April 2012, 24 April 2012 and 2 June 2012. The Respondent submitted that the Complainant was largely self managed and that it took all reasonable steps to ensure that he complied with the provisions of Sections 11 and 12 of the Act.
The Law
Section 11 of the Act states:
- 11.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 infringements of Sections 11 and 12 of the Act complained of occurred on various dates after the 2ndFebruary 2012. This Court in Lucey Transport Limited and Marius Serenas (DWT 1398) determined that Sections 11 and 12 of the Act do not, after the coming into force of Statutory Instrument No 36/2012 on the 30thJanuary 2012, apply to mobile workers. The Court decided that it did not, after that date, have jurisdiction under the Act, to investigate complaints of infringements of sections 11 or 12 of the Act made by a mobile worker that come within the scope of that Statutory Instrument. The Court set out the position in the following terms: -
- It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.
The Regulations do not have retrospective effect. Consequently, this position only pertains in relation to complaints in respect of a period after they took effect. In relation to the instant case, while the within complaint was initiated under the Act after S.I. 36/2012 took effect, the events to which the complaint relates occurred in part during a period before the commencement of the Regulations. It seems to the Court that the complaints are maintainable under the Act in so far only as they relate to that period. Accordingly, the Respondent’s appeal must succeed in relation to so much of the Rights Commissioner’s decision as related to events that occurred after S.I. 36/2012 took effect, namely, 30thJanuary 2012. It is clear, however, that the complaint in relation to s.17 of the Act is fully maintainable under the Act. The Court has examined the records maintained by the Company. The examination confirmed that the Complainant did not receive a rest period of 11 consecutive hours in each period of 24 hours on the dates referred. Accordingly the finds the complaint is well founded.
In this case all of the complaints relate to alleged infringements of Sections 11 and 12 of the Act that took place after January 2012. Accordingly the Court has no jurisdiction to investigate any of them at this time.
Section 17
The Complainant maintains that his start and finish time are subject to variation to an unacceptably high level. He maintains that his start time each morning varies depending on whether or not the truck he drives has been loaded the night before. He further maintains that his finish time is unpredictable and is dependent on a number of factors including the number of loads he is assigned each day. He maintains that the irregular hours are outside the normal variations that can be attributed to traffic and other day to day contingencies. He maintains that it is a feature of the operation to allocate work in such a manner as to make his daily start and finish times unpredictable. He maintains that he does not receive such notice of the changes to his hours of work as would comply with the provisions of Section 17 of the Act. He relies on the variation to his start and finish times set out in the Company’s own records.
The Respondent submits that the Complainant’s start and finish time does not generally deviate week on week and that his manager at all times stays in contact with him regarding any enforced changes. He is notified in good time when work pressures demand changes to his daily start or finish times. The Respondent further submits that the Complainant’s work as a truck driver is influenced by a number of factors including traffic congestion, weather, road conditions, delays at delivery and collection points and on occasions, breakdowns. Accordingly some degree of flexibility in relation to start and finish times is inevitable.
The Law
Section 17 of the Act states:
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 finishingtimes 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 thetimes 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.
Section 25 of the Act states:
- (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.
(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.
(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.
(4) 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.
- 3. The records required to be kept under section 25(1) shall contain the following particulars and documents
- (d) 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)
Findings of the Court
In this case the Respondent did not keep records of notifications under Section 17 of the Act. Accordingly Section 25(4) of the Act places the onus of proving compliance with the Act with the Employer.
Records submitted by the Company for the period 16 June 2012 to 31 July 2012 show that the Complainant commenced work at various times between 5:37 and 7:36 a.m. and finished work between 13:22 and 23:59 p.m. No particular pattern of start or finish times was discernible from the records provided.
The Respondent did not offer any explanation for any of the various different start of finish times on any of the days in question. Moreover the Respondent did not instance any occasion on which the Complainant was given any notice of his varied start or finish time.
Accordingly the Court finds that the Respondent has failed to discharge the burden of proving compliance with the Section 17 of the Act. The Complaint is well founded.
Section 26
The Complainant maintains that he made a complaint to the Rights Commissioner under the Act that was heard on 27 April 2012. A decision on the complaints was issued on 27 June 2012 and subsequently appealed to this Court The Complainant, on 15 June 2012, submitted further complaints to the Rights Commissioner under the Act. The Complainant maintains that, on 27 June 2012 a Mr David Garvis, a manager with the Respondent, told him that the Company would sue him for making a complaint to the Rights Commissioner and the Labour Court and for lying about the breaks. He submits that this amounts to a threat within the meaning of the Act. He maintains that he was told that he should withdraw the claim. He was then told that if he did not do so his working time would be reduced by one or two days per week. He maintains that he was told that no other staff member would suffer a similar reduction in hours.
He submits that this action amounts to penalisation within the meaning of Section 26.
The Respondent denies penalisation. It submits that the Complainant was seeking a shorter working week to bring it into line with the average 48 hour maximum provided for in the statute. The Company was examining how this could be done. An option of working three or four days per week was one of the possibilities it discussed with the Complainant. The Company submits that it never sought to threaten or penalise the Complainant because of the Complaints he had made.
The Law
Section 26 of the Act states:
- (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act [or the Activities of Doctors in Training Regulations ].
(2) If a penalisation of an employee, in contravention of subsection (1) , constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to [2007] , relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts .
Findings of the Court
In this case the Complainant submitted a series of complaints to the Rights Commissioner under Section 27 of the Act. The Complainant appealed to this Court under Section 28(1) of the Act against a decision of the Rights Commissioner that was made under Section 27(1) of the Act. He then submitted a fresh series of complaints to the Rights Commissioner under Section 27(1) of the Act. Shortly thereafter the Complainant was called to a meeting with a Company Manager. It is the conversation that took place at this meeting that the Complainant maintains amounts to penalisation.
Making a complaint to a Rights Commissioner under Section 27(1) of the Act, is to oppose by lawful means, an act, which is unlawful under the Act and is accordingly a protected act for the purposes of this Section.
However the Section appears to apply in circumstances where penalisation has actually taken place. The Section does not appear to protect a worker against a threat of penalisation.
The Section states that'an employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act'.
By contract Section 27 (3) (c) of the Safety Health and Welfare at Work Act 2005 in relevant part states that'an employer shall not penalise or threaten penalisation against an employee formaking a complaint or representation to his or her safety representative or employer ... as regards any matter relating to safety, health or welfare at work'.
The Oireachtas could have chosen to protect employees against a threat of penalisation under Section 26 of the Act. However it appears not to have done so. It is not therefore open to this Court to insert a word into the Act that the Oireachtas has chosen to omit from it save in very limited circumstances that are not relevant in this context.
In this context the evidence before the Court does not disclose any actual detriment that has been suffered by the Complainant. Therefore the Court must conclude that Section 26 of the Act has not been infringed. The Court therefore decides that the complaint is not well founded.
Determination
The Court determines as follows:
The Complaint does not have jurisdiction to investigate the Complaints under Sections 11 and 12 of the Act.
The Complaint under Section 17 of the Act is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,500 arising out of the infringement of Section 17 of the Act.
The Complaint under Section 26 of the Act is not well founded. The appeal is not allowed.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
4th September, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.