FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : STAN O' REILLY T/A C&D RECYCLING (REPRESENTED BY IVOR FITZPATRICK & CO) - AND - AIGARS PLAUKA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Decision No's r-137981/986/987/989/991/993/994/996/998-wt-13/MMG
BACKGROUND:
2. This is a joint appeal of Rights Commissioner's Decision No's r-137981/986/987/989/991/993/994/996/998-wt-13/MMG made pursuant to Section 28(1) of the Organisation of Working Time Act, 1997. Labour Court hearings took place on 13th February 2015 and 3rd July 2015.
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. Aigars Plauka (the Complainant) against his former employer, Stan O’Reilly t/a C&D Recycling (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, 17, 19, 21 and 26 of the Act.
At the hearing before the Rights Commissioner the Respondent submitted a preliminary point that as the Complainant was employed on a contract for service and was not a bona fide employee in a normal employer/employee relationship, he lackedlocus standito maintain the proceedings. The Rights Commissioner found against the Respondent on this preliminary issue.
In his Decision the Rights Commissioner found that he could not simultaneously hear claims pursuant to Sections 11, 12 and 15 of the Organisation of Working Time Act, 1997 and pursuant to Regulations 5, 8, and 9 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). Therefore the Rights Commissioner proceeded to hear the Complainant’s claims pursuant to Sections 17, 19, 21 and 26 of the Act and in a separate Determination made under the Regulations he dealt with the claims regarding daily rest, breaks and excessive working hours.
The Rights Commissioner found that the Complainant’s claims under Sections 17 and 26 were not well founded, he held that the Respondent had breached Section 19 and 21 as there was no proof that the Complainant had received his annual leave entitlements and he had not received public holiday entitlements, he awarded the Complainant the sum of €500 in compensation.
The Respondent appealed the Rights Commissioner’s Decision firstly on the basis that the Complainant was at all material times an independent contractor on a contract of service. Furthermore, it appealed the quantum of the award given under Section 19 and 21 of the Act.
The Complainant appealed the Rights Commissioner’s Decision.
Background
The Complainant worked as a Skip Driver with the Respondent. He commenced on 28thMay 2010 until 5thNovember 2010 and he subsequently worked from 14thFebruary 2011 until 16thJuly 2013. He referred his complaints under the Act to the Rights Commissioner on 24thSeptember 2013. The Respondent’s business ceased to operate with effect from March 2014.
Preliminary Issue – The Complainant’s Status
Ms Christina Ryan, B.L. instructed by Ivor Fitzpatrick & Co. Solicitors, on behalf of the Respondent submitted that the Complainantwas not an employee of the Respondent employed under a contract of employment but was engaged under a contract for service as a Skip Driver and therefore the Complainant was not an individual entitled to refer a complaint under the Act.
She said that in May 2010 the Complainant and the Respondent entered into a contract for service and thereafter he was engaged on a casual basis as and when hours were available and as and when the Complainant was himself available to work until the Complainant became uncontactable in or around the mid/end of July 2013.
Ms Ryan told the Court that the Respondent employs a small number of drivers on a permanent basis and the remaining drivers form part of a pool of freelance casual drivers who were available to work for the Respondent and other similar companies in the Dublin and Wicklow areas. The relationship which existed between the Complainant and the Respondent wasnot an employer-employee relationship. The Complainant was not under the control of the Respondent but was employed on his own account and lacked mutuality of obligation as between the Complainant and the Respondent.
Notwithstanding the Respondent’s contention and without prejudice to its arguments that the Complainant was an independent contractor on a contract for service, Ms Ryan tendered a defence to the complaints made.
Mr. Richard Grogan, Richard Grogan & Associates, Solicitors, on behalf of the Complainant contended that the Respondent’s assertion was spurious and vexatious. He said that the Complainant was under the control of the Respondent. He was directed when and where to work, there were set working hours and overtime hours. He received a fixed wage per hour and PAYE, PRSI and USC were deducted from his wages. He was not exposed to financial risk and had no opportunity to profit from his own management in the performance of his tasks. In any event Mr Grogan contended that the Respondent cannot contend on the one hand that the Complainant was a self-employed, independent contractor and on the other put forward a defence on the basis that he was an employee.
Having considered the submissions made by both parties to the preliminary issue of the Complainant’s employment status, the Court notes that at all material times the Complainant was engaged as a Driver and was responsible for picking up and delivering of skips on behalf of the Respondent to its various customers. He was paid by reference to the number of hours he worked and PAYE, PRSI and USC were deducted from his weekly pay. While this claim before the Court concerns alleged outstanding annual leave and public holiday entitlements under this Act, there is no dispute that he had an entitlement to such benefits and was granted such benefits.
There is a very considerable body of case law on the various tests to be employed in distinguishing between a contract of service and a contract for services in both employment and tax law. These various tests are helpfully encapsulated in a document entitled “Code of Practice for Determining Employment or self-Employment Status of Individuals”. This Code of practice was formulated by the Employment Status Group set up under the Programme for Prosperity and Fairness with the assistance of relevant Government Departments, Trade Unions and Employer Bodies, NERA and the Revenue Commissioners. While the provisions of this Code of Practice cannot be regarded as a definitive statement of the law in this area they are nonetheless of persuasive authority.The Court has had regard to the provisions of this Code in addressing the question in issue in this case. Having done so the Court finds that, on balance, the factual matrix surrounding the Complainant’s engagement with the Respondent is more consistent with a contract of services than with a contract for service. In particular the Court notes that the Complainant was treated in like manner to direct employees of the Respondent save that he was not provided with regular employment and was called upon as the need arose. He was under the control of the Respondent in the work he carried out, the rate he was paid and the hours he worked and was included on the roster along with other employees when he was required to work. He did not supply any of his own equipment and could not profit from self management in the performance of his task.He was treated as an employee for the purposes of the Tax and Social Welfare Acts.
On balance while the Complainant was free to avail or decline work offered to him by the Respondent, the Court finds that most indications lead the Court to the conclusion that he was employed under a contract of service. Therefore having examined the submissions of both parties the Court is satisfied that the Complainant was employed on a contract of service and accordingly haslocus standiunder the Act.
Preliminary Issue – Conflict between the Act and S.I. 36 of 2012
Mr. Grogan submitted claims under Sections 11, 12, 15, 17, 19, 21 and 26 of the Act. These included alleged breaches regarding excessive working hours, daily rest, and breaks while simultaneously submitting claims pursuant to Regulation 5, 8 and 9 under Statutory Instrument 36/2012, European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (the Regulations). He made a submission to the Court on the reasons for seeking redress under both statutes.
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. 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. Therefore the Court decides that the Complainant’s complaints under Sections 11, 12 and 15 are inappropriate to be adjudicated upon under the 1997 Act and instead has adjudicated upon them under Statutory Instrument 36/2012.
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).Section 11 of the Act overlaps with the Regulations and is therefore not applicable to those to whom the Regulations apply.
Section 17 Complaint
Mr. Grogan stated that the Complainant was at times required to work additional hours, he was given details of his starting times but not his finishing times and he received no rosters.
Ms Ryan submitted that the Complainant had not adduced any evidence to substantiate his allegation. She said that he could not cite even one example of an occasion when the Act was breached.
Ms Ryan denied the Complainant’s allegationand said that he received at least 24 hours advance notification of the work available in a given week and it was entirely a matter for him to decide which days and hours he would work. She said that there was no obligation on the Complainant to work on a particular day or a particular number of hours in a given day or week. If he was not available to work the day or hours proposed by the Respondent it was open to him to indicate whether there was an alternative day that he was available. Once the days and hours were confirmed they were recorded on the roster. If there was a difficulty and he was not in a position to work the hours he had agreed to work the Respondent would find an alternative driver from the pool of drivers and there would be no consequences for the Complainant. Ms Ryan said that he was given certain runs to undertake which determined his finishing times and he was paid according to the number of hours he worked.
Section19 and 21 Complaints
Mr. Grogan submitted that the Complainant did not receive his annual leave entitlement, no details were given.
Mr. Grogan submitted that the Complainant did not receive his public holiday entitlement in respect of St. Patrick’s Day, 17thMarch 2013.
Without prejudice to the Respondent’s position that the Complainant lackedlocus standi, Ms Ryan denied the allegation and stated that at all material times he was engaged under a contract for service and was free to take holidays/annual leave whenever he wished to do so. In fact, she said that the Complainant took annual leave whilst he was engaged by the Respondent and was paid holiday pay.
Ms Ryan contended that as St. Patrick’s Day, 17thMarch 2013 was outside the cognisable period covered by the claim that this claim was statue barred.
Section26Complaint
Mr Grogan submitted that the Complainant was penalised within the meaning of the Act as he was dismissed on 16thJuly 2013 when he refused to work overtime after he had completed his day’s work at 5.30pm, having started at 7.00am. He said that the Complainant had informed the Respondent that he was prepared to work until 7.00pm on the day (not until 9.00pm as requested) as he had child minding responsibilities.
Mr Grogan submitted that as Section 17 of the Act specifies that an employee must have notification of his starting and finishing times the Respondent’s request to the Complainant without proper notification was in breach of the Act and accordingly the Respondent was requesting the Complainant to carry out an act which was unlawful under the Act. Therefore he alleged that by dismissing the Complainant in these circumstances he was penalised within the meaning of Section 26 of the Act.
Ms Ryan denied that the Respondent had dismissed the Complainant, stating that no dismissal had taken place at all, and moreover denied that a termination of the working relationship between the Respondent and the Complainant had taken place. Consequently she maintained that no penalisation of the Complainant took place. Furthermore, she denied that the Complainant was requested to work overtime, whether after 7.00pm or at all or that the Complainant's family status had any bearing on his working relationship with the Respondent.
Ms. Ryan maintained that it wasthe Complainant who of his own accord ceased working with the Respondent. She said that theRespondent had made a number of attempts to contact the Complainant in July and August 2013 however these were unsuccessful and the Respondent had had no contact from the Complainant whatsoever after that time apart from receiving the complaints lodged on his behalf with the various employment fora.
Conclusion of the Court
Section 17(1) of the Act 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.
The Complainant has not particularised his complaint under Section 17 by citing even one incident where he was not provided with the requisite notification.
The Court has considered the impact of Section 17 inFirst Glass LimitedDWT1550 where it held:-
- “It seems to the Court that in cases where a worker’s starting and finishing times are determined by an objective factor, such as the exigencies of the work that he or she is required to undertake, the only practical application of Section 17 of the Act is to place an obligation on the employer to provide the worker with at least 24 hours’ notice of his or her work schedule.”
Section 19 Complaint
The Complainant has not particularised his complaint under Section 19 of the Act. No details of outstanding annual leave were submitted to the Court. In these circumstances the Court cannot find the Complainant’s complaint well-founded.
Section 21 Complaint
The Complainant stated that he did not receive his appropriate public holiday entitlement on 17thMarch 2013. As this date is outside the cognisable period covered by the claim, the Court finds that the complaint is not well-founded.
Section26Complaint
Section 26 of the Act provides: -
26.—(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.
(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.
Section 1 of the Unfair Dismissals Acts 1977 -2007 defines dismissal as: -
- (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;
The Court has given serious consideration to the submissions made by both parties regarding the alleged penalisation incident. Section 26 could only avail the Complainant if it were established that there was a dismissal. The Respondent disputes that there was a dismissal at all.Included in the Complainant’s documentation to the Court was a copy of a letter dated 6thAugust 2013, from the Respondent and addressed to the Complainant, informing him of its efforts to try and contact him in respect of available work, however, it stated that it received no response from him. It requested him to contact the Respondent in regard to his intention in respect of his employment with the Respondent as it had noticed that he was now working with a competitor. Mr Grogan acknowledged that the Complainant had received this letter but stated that at this point the Complainant was in the process of pursuing his claims under this Act and under other employment rights legislation and decided not to respond.
The Court is of the view that this letter is highly significant as it clearly puts the question of whether or not there was a dismissal at all into question. On the basis of this evidence the Court is satisfied that the Complainant has not established facts from which it could be established that a dismissal took place at all. Consequently Section 26 of the Act has no application in this case, therefore the Court finds that the Complainant’s complaint under Section 26 of the Act is not well-founded.
Determination
For the reasons set out herein the Court is satisfied that the Complainant's complaints under the Act are not well-founded. Accordingly his appeal is disallowed, the Respondent’s appeal is upheld and the decision of the Rights Commissioner is varied in that regard.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th August 2015______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.