FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : EAMONN MORRISSEY T/A VALCON INTERNATIONAL TRANSPORT - AND - GIRTS MILTOVICS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeals of Rights Commissioner's Decision No's r-131436-wt-13/EH, r-131449-wt-13/EH, r-131453-wt-13/EH, r-131462-wt-13/EH, r-131463-wt-13/EH, r-131464-wt-13/EH r-131469-wt-13/EH, r-131472-wt-13/EH, r-134982-wt-13/EH, r-134983-wt-13/EH, r-134985-wt-13/EH, and r-134987-Wt-13/EH.
BACKGROUND:
2. This is a joint appeal of Rights Commissioner's Decision No's: r-131436-wt-13/EH, r-131449-wt-13/EH, r-131453-wt-13/EH, r-131462-wt-13/EH, r-131463-wt-13/EH, r-131464-wt-13/EH, r-131469-wt-13/EH, r-131472-wt-13/EH, r-134982-wt-13/EH, r-134983-wt-13/EH, r-134985-wt-13/EH, and r-134987-Wt-13/EH.
made pursuant to Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 18th September 2014. The following is the Court's Determination:
DETERMINATION:
This is a joint appeal against the Decision of a Rights Commissioner in a claim made by Mr. Girts Miltovics (the Complainant) against his former employer, Eamon Morrissey t/a Valcon International Transport (the Respondent) under the Organisation of Working Time Act, 1997 (the Act).
The Complainant submitted complaints alleging breaches by the Respondent under Sections 11, 12, 15, 19 and 21 of the Act. In his Decision the Rights Commissioner decided that the Complainant’s complaints under Sections 12 and 15 were inappropriate under the 1998 Act and instead opted to adjudicate upon them under Statutory Instrument 36/2012, entitled European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (the Regulations).
The Rights Commissioner decided that complaints regarding alleged breaches of Sections 11, 19 and 21 were not covered by the Regulations and accordingly fell to be adjudicated upon under the Act. He found that the complaint under Section 11was well founded as there were no records available to contest the Complainant’s claim and awarded compensation in the sum of €250.00. The Rights Commissioner also found the complaints under Sections 19 and 21 were well-founded as the Complainant had not been paid the national minimum wage in respect of annual leave and public holidays. He awarded economic loss in the sum of €742.00 plus compensation of €500.00 making a total award of €1492.00 in respect of breaches under Sections 19 and 21 of the Act.
Both parties appealed on the basis that the level of compensation was not appropriate. The Complainant wherein he submitted that, in respect of the Decisions made under Sections 11 and 13, the Rights Commissioner failed to take into account the decision of the CJEU inVon Colson and Kamann -v- Land Nordrhein Westfalen 1984 ECR 1891which held that sanctions for breaches of Community rights must not only compensate for economic loss sustained but must provide a real deterrent against future infractions.
The Respondent appealed on the basis that the compensation awarded in the complaints made under the Regulations was excessive.
Background
The Respondent is based in Co. Kerry, he is the owner of two trucks, one of which is twelve years old and the other is out of action. Due to his daughter’s extended serious illness he was unable to drive the truck himself, therefore he employed the Complainant to do so. He no longer employs any employees.
The Complainant lived in Portlaoise, Co. Laois, he was employed as a Driver by Respondent and contractor to a Freight Company based in Dublin Port. He was employed from 12thSeptember 2011 until 17thJune 2013. He submitted his claims under the Act to the Rights Commissioner on 21stMarch 2013 (Section 21, r-131436-wt-13/EH; Section 11,r-131462-wt-13/EH; Section 15, r-131463-wt-13/EH; and Section 12, r-131469-wt-13/EH), and submitted further claims in respect of meal breaks, additional public holidays and annual leave on 19thJune 2013 (Section 12, r-134982-wt-13/EH; Section 21,r-134983-wt-13/EH and Section 20 r-134985-wt-13/EH).
Section 11 Complaint
Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant stated that the Complainant worked from 6.00am until 6.00pm five days per week and occasionally he worked until 8.00pm. Accordingly he said that on the days the Complainant started at 6.00am and finished at 8.00pm he did not receive an eleven consecutive hours break between shifts.
Mr. Grogan contended that the quantum of compensation awarded by the Rights Commissioner was not adequate or reasonable in all the circumstances of the case.
Mr John Canty, John Canty & Co. Chartered Accountants, on behalf of the Respondent provided Tachograph records to substantiate the Respondent’s contention that the Complainant did not work the hours contended by the Complainant.
The Court cannot accept the Respondent’s contention that the records of hours worked based on the Tachograph records provide evidence of the Complainant’s working hours. In the Court’s opinion Tachograph records do not constitute a reliable means of showing that the Act is being complied. At best they record time actually or physically worked, but do not provide details of the hours that the Complainant was contracted to work.
There is no support in authority or in statute for the proposition that the Court should have regard to the financial circumstances of a Respondent in measuring the quantum of compensation to which a successful Complainant is entitled. In all the circumstances of this case the Court is satisfied that the quantum of the award made by the Rights Commissioner meets the standard required by the CJEU inVon Colsonand accordingly upholds the Rights Commissioner’s Decision and rejects both appeals.
Sections 12 and 15 Complaints
Mr Grogan has made various submissions in relation to the extent and validity of the Regulations. These are based on a submission that the Regulations only apply to international drivers. The Court does not accept this contention.
The definition of drivers within the Regulations states that it applies to all drivers covered by Council Regulation EC Number 561/2006 of the European Parliament. Regulation EC 561/2006 specifically states that it applies to the carriage of goods by road within the community. It makes no differentiation between national and international carriage and therefore it, and by extension the Regulations, applies to both national and international carriage by road.
In its decision inLucey Transport Limited and Marius SerenasDWT1398, this Court clearly indicated that where there was conflict between the Act and the Regulations, then the Regulations took precedence. Where there was no conflict between the Regulations and the Act, the Act continued to have effect. In this case, the Regulations, for reasons which are unclear provide no civil remedy in respect of the obligations covered in Regulation 9 of the Act (Application of Council regulation in relation to daily and weekly rest) and, therefore, a complaint concerning those breaches should still be brought under the provisions of the Act,c.f.Section 11 and 13 of the Act. The Rights Commissioner, in his decision, recognised this to be the correct situation and applied the law accordingly.
As the Court stated inLucey Transport, having the Act and the Regulations continuing to coexist in relation to the Road Transport Sector does lead to confusion, but, by applying the reasoning set out inLucey Transportand in this Determination, it is possible to give effect to the Directives and the Regulations.
Consequently, only those provisions of the Act that do not relate to working time, including rest and intervals at work, are applicable to workers whose employment comes within the ambit of the aforesaid Regulations.
In this case the Court notes that there was no claim presented before the Rights Commissioner or the Labour Court in respect of an alleged breach of Regulation 9 of S.I. 36/2012, therefore the argument made above is moot. In any event his complaint in respect of Section 11 (daily rest period) was dealt with by the Rights Commissioner not under S.I. 36/ 2012 but under the 1997 Act and the Court’s decision of the appeal under Section 11 of the Act is as outlined above.
Section 19 and 21 Claims
Where holidays are given and an underpayment is made in respect to either annual leave or a public holiday, the Act is contravened at the point at which the impugned payments are made. It follows that if the Complainant was underpaid in respect of annual leave or public holidays a cause of action would have accrued on the date on which the annual leave commenced or the public holiday occurred. There was no allegation before the Court that the Complainant did not receive his full annual leave or public holiday entitlement under the Act. What was alleged was that the Complainant did not receive the appropriate rate of pay for such leave.
The Complainant has submitted a complaint under the National Minimum Wage Act, 2000 to the Rights Commissioner in respect of his employment, covering the period from 12thSeptember 2011 to 30thApril 2013. The Decision of the Rights Commissioner was appealed to this Court. In addressing the Complainant’s claim under the 2000 Act, the Court took account of all payments made to him by way of wages over the currency of his employment for that period and that included times during which he was on leave. It was never suggested by the Complainant that he did not receive annual leave or public holiday entitlements during that period and accordingly any entitlement to payment during that period has been dealt with in the Determination under the 2000 Act. Therefore, the only period in respect of which the Complainant could bring a claim in respect of Section 19 and/or Section 21 is the period from 1stMay 2013 until 19thJune 2013. There was no evidence to indicate that the Complainant was on annual leave during this period; two public holidays occurred during this period. However, no complaint was made alleging that the Respondent contravened Section 20 or Section 22 of the Act in relation to the rate of pay used to calculate his holidays/public holidays. Accordingly, the Court does not find in favour of the Complainant’s complaints under Sections 19 and 21 of the Act and overturns the Rights Commissioner’s decisions in that regard.
Determination
The Court upholds the Rights Commissioner’s Decision under Section 11 and therefore awards the Complainant the sum of €250.00 in respect of the breach of the Act. Consequently, the Court does not uphold either appeal.
The Court concurs with the decision of the Rights Commissioner that the appropriate legislation for dealing with complaints which were previously under Sections 12 or 15 of the Act is under the Regulations and consequently upholds the employer’s appeal and dismisses the Complainant’s appeal.
The Court finds that there was no breach of Sections 19 or 21 of the Act and consequently upholds the Respondent’s appeal and dismisses the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
21st November 2014______________________
AHCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.