FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 19, EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS, 2012 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. Appeal Against Rights Commissioners Decision r-136215-wt-13/EH
BACKGROUND:
2. This is a joint appeal of Rights Commissioner's Decision No: r-136215-wt-13/EH made pursuant to Section 19 European Communities (Road Transport) (Organisation of Working Time Persons Performing Mobile Road Transport Activities) Regulations 2012. 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 Statutory Instrument 36/2012, European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The Complainant submitted complaints alleging breaches by the Respondent under Regulation 5 (excessive hours), Regulation 8 (breaks), Regulations 11 (notification of S.I. 36 of 2012), and Regulation 12 (records). In his Decision (r-136215-wt-13/EH) the Rights Commissioner decided that the Complainant’s complaints under Regulations 5, 11 and 12 were well founded and awarded him compensation in the amount of €2,000 in respect of the breach of Regulation 5, €1,000 in respect of the breach of Regulation 11 and €1,000 in respect of the breach of Regulation 12. He found that there was no breach of Regulation 8.
The Complainant appealed the decision made in respect of Regulations 8 and appealed the quantum of the awards under Regulations 5, 11 and 12. He submitted that the awards decided upon by 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 the Decisions made under Regulations 5, 11 and 12 and submitted that the compensation awarded in respect of those complaints are 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 daughters 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 claims under the Regulations on 22ndJuly 2013.
Regulation 5 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 submitted that on average he worked 50 hours per week over the cognisable reference periods.
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 and accordingly the Court finds the complaint well founded.
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 Colson. Therefore the Court upholds the Decision to award the sum of €2,000.00 in respect of the breach of Regulation 5 of the Regulations.
Regulation 8 Complaint
The Rights Commissioner held that on the evidence of the Complainant he was satisfied that the Complainant had received two forty-five minute breaks per day and accordingly found against the Complainant’s complaint under Regulation 8 of the Regulations.
Mr Grogan appealed his decision and submitted that the onus of proof was on the Respondent to show compliance with his statutory obligations. He submitted that due to the Respondent’s lack of record keeping that the Court must find that the Respondent was in breach of Regulation 8 in respect of the Complainant.
Having considered the submissions of both parties the Court concurs with the findings and decision of the Rights Commissioner and does not find that the Respondent was in breach of Regulation 8 of of the Regulations.
Regulation 11 Complaint
It was not denied that the Complaint was not provided with notification of S.I. 36 of 2012 in compliance with Regulation 11 and accordingly the Court finds the complaint well founded.
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 of the view that the quantum of the award made by the Rights Commissioner in respect of the breach under Regulation 8 was excessive and accordingly determines that the Complainant should be paid the sum of €200.00. In the circumstances of this case the Court is satisfied that this meets the standard required by the CJEU inVon Coulson.
Regulation 12 Complaint
The Respondent accepts that it did not maintain records in accordance with Regulation 12. Consequently it bears the burden of proving compliance with the Act. It produced records based on Tachograph readings. As the Court has specified above it cannot accept that Tachograph records comply with the statutory requirement to maintain records and accordingly find that the Respondent was in breach of Regulation 12 of the the Regulations.
The failure to keep records under Regulation 12 is an essential element of the Regulations and a breach of Regulation 12 allows an aggrieved worker to obtain compensation for such breach under Regulation 18. However the failure to keep such records has almost inevitably led to successful claims by the Complainant in respect of breaches of Regulations 5 and 11. There is an element almost of double jeopardy in having to defend a claim under Regulation 12 when, in this particular case, it was that failure which led to the successful claims under Regulations 11 and 5. Accordingly, while the breach of any regulation has to be regarded seriously the Court believes that the appropriate compensation for breach of Regulation 12 in this case is €200.00.
Accordingly, the Court varies the Rights Commissioner’s Decision.
Determination
Based on the findings above, the Court upholds the Rights Commissioner’s Decision under Regulation 5 of the Regulations and awards the Complainant the sum of €2,000.00. Consequently, the Court does not uphold the Respondent’s appeal.
The Court concurs with the Decision of the Rights Commissioner in respect of the complaint under Regulation 8 of the Regulations, therefore it upholds the Respondent’s appeal, and dismisses the Complainant’s appeal.
The Court concurs with the Decision of the Rights Commissioner in respect of the complaint under Regulation 11 of the Regulations, however, it varies the compensation ordered. The Court orders the Respondent to pay the Complainant the sum of €200.00 in respect of this breach. Therefore the Court rejects both appeals.
The Court concurs with the Decision of the Rights Commissioner in respect of the complaint under Regulation 12 of the Regulations, however, it varies the compensation ordered. The Court orders the Respondent to pay the Complainant the sum of €200.00 in respect of this breach. Therefore the Court rejects both appeals.
In conclusion, the Court awards the Complainant a total compensatory award in respect of the breaches of S.I. 36 of 2012 of €2,400.00, which should be paid to the Complainant within a period of six weeks from the date of this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st November 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.