RTD153

The Claimant also appealed against a decision of the Rights Commissioner in a claim under the Organisation of Working Time Act 1997 based on the same facts as those relied upon in the instant appeal. That appeal was withdrawn at the commencement of the hearing.

The Respondent was informed of the time, date and place at which the appeal was to be heard but failed to appear at the hearing.

The Claimant was employed by the Respondent as a driver from 18^thSeptember 2012 until his employment was terminated on 13^thMarch 2014. The within complaint was presented to the Rights Commissioner on 23^thJuly 2014.

The complaint
The only matter relied upon in the appeal was the Complainant’s contention that the Respondent contravened Regulation 5 in relation to him by requiring him to work in excess of the maximum number of working hours permitted under that Regulation.

Statutory provisions
Regulation 5 of the Regulations provides: -

• 
  5. (1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed—
  • 
    (a) a working time of more than 60 hours in a week,

    (b) an average weekly working time of 48 hours in any reference period.

  
  (2) The average weekly working time of a person during a reference period shall be determined according to the formula—
  (A+B)
  C

  where—

  • A is the aggregate number of hours comprised in that person’s working time during the course of the reference period;

    B is the number of excluded hours during the reference period; and

    C is the number of weeks in the reference period.

  (3) In this Regulation “excluded hours” means hours comprised in—
  • • (a) any period of annual leave taken by the person in accordance with theOrganisation of Working Time Act 1997(No. 20 of 1997) (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the mobile worker),

      (b) any absences from work by the person authorised under theMaternity Protection Act 1994(No. 34 of 1994), theAdoptive Leave Act 1995(No. 2 of 1995), theParental Leave Act 1998(No. 30 of 1998), or theCarer’s Leave Act 2001(No. 19 of 2001), and

    
    (c) any period of sick leave taken by the person.
  
  (4) For the purposes of paragraph (2), the number of hours in a whole day shall be 8 and the number of hours in a whole week shall be 48.

  (5) An employer shall ensure that the limits specified in paragraph (1) are complied with in the case of each mobile worker employed by him or her.

• 4. (1) The reference period for a mobile worker shall be—
  • 
    (a) where a collective agreement, an employment regulation order or a registered employment agreement provides for the application of this Regulation in relation to successive periods of 17 consecutive weeks, each such period,

    (b) where a collective agreement provides for the application of this Regulation in relation to successive periods of 26 consecutive weeks, each such period,

  • (c) in a case where—

    (i) neither (a) nor (b) applies, and

    • 
      (ii) the employer gives written notice to the mobile worker in writing that he or she intends to apply this subparagraph,
  any period of 17 consecutive weeks in the course of the worker’s employment, or
  • 
    (d) in any other case, each successive period in each year beginning at midnight at the beginning of the Monday which falls on, or is the first Monday after, a date in column (1) and ending at midnight at the beginning of the Monday which falls on, or is the first Monday after, the date on the same line in column (2) in the Table to this paragraph:-
    
    

    Table

    Beginning	End
    (1)	(2)
    1 January	1 May
    1 May	1 September
    1 September	1 December

• (4) Subject to paragraph (5), a rights commissioner shall not entertain a complaint under this Regulation if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment, whichever is earlier

• (5) Where a delay by a mobile worker in presenting a complaint under this Regulation is due to any misrepresentation by the employer, paragraph (4) shall be construed as if the reference to the date of the contravention were a reference to the date on which the misrepresentation came to the mobile worker’s notice.

• (6) Notwithstanding paragraph (4), a rights commissioner may entertain a complaint under this Regulation presented to him or her after the expiration of the period specified in paragraph (4) but not later than 6 months after such expiration if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances.

Time Limits
For the purpose of these provisions a cause of action in respect of a contravention of Regulation 5(1)(2) accrues at the end of the relevant reference period, or on the date on which the employment ends, whichever is the earlier. Hence, any contravention of that provision that occurred in any of the reference periods ending before 1^stJanuary 2014 is outside the cognisable period for the purpose of the within claim, which was presented on 23^rdJuly 2014. In the case of the reference period commencing on 1^stJanuary 2014 and ending on 1^stMay 2014, any contravention in respect of this reference period crystallised on 13^thMarch 2014, (the date on which the Claimant’s employment terminated). Consequently, any contravention of Regulation 5(1)(2) that occurred in respect of that reference period is within the six month period ending on the date on which the within claim was initiated and is cognisable for the purpose of Regulation 18(4).

The time limit applies differently in the case of Regulation 5(1)(a), which prohibits a mobile worker from working more than 60 hours in any given week. Here the contravention occurs at the end of the week in which the maximum number of working hours permitted is exceeded. It is at that point that a cause of action accrues and the time limit starts to run. Hence, any contravention of Regulation 5(1)(a) that occurred before 24^thJanuary 2014 is outside the cognisable period for the purpose of the within claim.

Conclusions of the Court
According to figures presented to the Court on behalf of the Claimant he worked a total of 360 hours in the relevant reference period. In that period he took two weeks annual leave and he was absent from work on sick leave for one week. In accordance with Regulation 5(4), these weeks of annual leave and sick leave are to be calculated notionally at 48 hours each.

Hence, applying the formula at Regulation 5(2) the following emerges:

Outcome
The Court finds that the Respondent contravened Regulation 5(1)(a) in respect of the Claimant by requiring him to work for six hours in excess of the maximum number of hours permitted in the week commencing 4^thMarch 2014.

The Court awards the Claimant compensation in the amount of €300 in respect of that contravention. The Respondent is directed to pay the Claimant compensation in that amount.

The appeal is to that extent allowed and the decision of the Rights Commissioner is amended accordingly.





Signed on behalf of the Labour Court



Kevin Duffy
5th August 2015______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.