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 : STAN O' REILLY T/A C&D RECYLING (REPRESENTED BY IVOR FIZPATRICK & CO) - AND - AIGARS PLAUKA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal Against Rights Commissioner Decision R-138000/002/004/012/014/018/365-mrt-13/MMG.
BACKGROUND:
2. This is a joint appeal of Rights Commissioner Decision No's: r-138000/002/004/012/014/018/365-mrt-13/MMG made pursuant to Section 19 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012. 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 under Statutory Instrument 36/2012, European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (the Regulations).
The Complainant submitted complaints under the Act to the Rights Commissioner on 24thSeptember 2013 alleging breaches by the Respondent under Regulation 5 (excessive hours), Regulation 8 (breaks), Regulation 9 (daily rest), Regulations 11 (notification of S.I. 36 of 2012) and Regulation 12 (records). In his Decision the Rights Commissioner found that the claims under Regulations 5, 8, 9 and12 were not well founded, he held in favour of his claim under Regulation 11 and awarded the Complainant the sum of €500 compensation.
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.
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 Regulation 11.
The Complainant appealed the Rights Commissioner’s Decision under Regulation 5, 8, and 12. He appealed the quantum of the award given under Regulation 11.
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 the 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.
Preliminary Issue – Misrepresentation by Respondent, Therefore the Time for Bringing the Complaint Should be Extended.
Mr Grogan referred the Court to Regulation 18 (5) of the Act which in essence states that where a delay in submitting a claim is made due to misrepresentation on the part of the Respondent the date of occurrence of the contravention of the Regulations is the date on which the misrepresentation came to the mobile worker’s notice. He stated that the Respondent’s failure to comply with Regulation 11 and thereby notify the Complainant of the provisions of the Regulations constituted a “misrepresentation” under the Regulations and accordingly the time for bringing the complaint should be extended.
Regulation 18(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 contravention were a reference to the date on which the misrepresentation came to the mobile worker's notice."
The Complainant contends that the non-provision of S.I. 36 of 2012 constituted a misrepresentation and that, in consequence, the time limit should only run from the time the Complainant became aware of the misrepresentation, namely 29thJuly 2013, when he came to the offices of Richard Grogan & Associates, Solicitors. Mr. Grogan submitted that the Respondent’s failure to provide this information earlier constituted a misrepresentation which prevented him from submitting his claim in time.
The complaint under the Act was made on 24thSeptember 2013, Mr. Grogan submitted therefore that the Court should entertain the complaint of alleged contraventions which occurred back to 7thFebruary 2012 and for the full period of his employment in relation to working excessive hours.
The main thrust of the Complainant’s case is that by not notifying the Complainant of the provisions of the Regulations this constituted a “misrepresentation” by the Respondent and was therefore the operative cause of the delay in initiating his claim. The term ‘misrepresentation’ is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. The Court is not satisfied that the alleged non-compliance with Regulation 11 comes within those parameters. Accordingly, the Court finds that not notifying the Complainant of the provisions of the Regulations could not constitute a false statement of fact. On this basis the Complainant’s contention that the Respondent was guilty of misrepresentation cannot succeed.
The Court notes that the claim was presented within six months of the alleged contraventions, it was not delayed, and no application for an extension of time has been presented under Regulation 18(6). Therefore the Court finds that there are no grounds to extend the time period in respect of the complaints made under the Regulations.
Burden of Proof
InFirst Glass Limited v Andrius Babinaskas RTD152this Court considered the question of the relevance of the absence of records which comply with S.I. 473 of 2001 placing a burden of proving compliance with S.I. 36 of 2012 on the Respondent. The Court held that they have no relevance to the Regulations in issue in this case. Regulation 12(a) and 12(c) of S.I. 36 of 2012 prescribe the obligation of an employer in relation to record keeping for the purposes of those Regulations.It held that there was no reason in principle as to why tachograph records, properly maintained and recording periods of availability, break times and rest times, could not meet an employer’s obligation under Regulation 12(a) and Regulation 12(c) of the Regulations.The Court found as follows:-
- “Moreover, where there is a failure to maintain records in accordance with Regulation 12, the employer may be liable to prosecution. But, unlike the position arising from the effect of s.25(5) of the Organisation of Working Time Act 1997, a failure to maintain adequate records does not have the added consequence of requiring the employer to prove compliance with the Regulations in proceedings before a Rights Commissioner or this Court.”
In the instant case, the Court notes that it is common case that the Complainant signed in and out of work and that such records were maintained by the Respondent. However, due to the closure of the Company and restrictions placed on its premises, it was not possible for the Respondent to gain access to these records.
Regulation 5 Complaint (Working Hours)
Mr. Grogan alleged that the Complainant’s working time often exceeded 60 hours per week in breach of Regulation 5(a). He submitted that the Complainant’s average working hours exceeded 48 hours per week over the cognisable reference periods in breach of Regulation 5(b). Mr Grogan stated as he does not have the records to show the details of hours worked by the Complainant he has therefore based his claim on P60 figures for 2012, these figures show that the Complainant worked on average 48.9 hours per week.Furthermore, he says that before he was placed on short time working the Complainant was working full time and would on occasions have worked over 60 hours per week.
Ms Ryan disputed the allegation and produced payslips and copies of rostered working hours for the cognisable period covered by the claim, i.e. from 25thMarch 2013 to 24thSeptember 2013. These details show that the Complainant was not rostered to work more than 28.5 hours per week and his average rostered working hours for the eighteen weeks he was employed in the cognisable period was just in excess of 26 hours per week.
The Court notes that payslips supplied to the Complainant on a weekly basis specified the hours worked and pay was calculated based on an hourly rate of €9.09. The Court notes that at no point did the Complainant ever raise a grievance regarding his pay, therefore the Court is of the view that it is reasonable to deduce that his pay reflected the hours he worked and accordingly holds that the records of hours worked furnished by the Respondent are an accurate and reliable record.
An examination of the records for the cognisable period covered by the claim show that there was no breach of Regulations 5 and accordingly the Court finds that this complaint is not well-founded.
Regulation 8 Complaint (Breaks)
Mr Grogan accepted that the Complainant received breaks in accordance with the Regulation for his normal working hours, however, he maintained that when the Complainant worked overtime until 8pm that he had a further entitlement to a 30 minute break which he did not get. In support of his contention, Mr Grogan referenced the judgment of the Court of Justice of the European Union (CJEU) in case C-484/04,Commission v United Kingdom[2006] IRLR 888. This case arose from infringement proceedings taken by the EU Commission against the UK concerning its implementation of the Working Time Directive (Directive 93/104). In its decision the CJEU held, in effect, that an employer has a positive duty to ensure that workers take the breaks specified.
Ms Ryan disputed the allegation that the Complainant did not receive his breaks, she said that the Complainant had not denied the Respondent’s oral evidence to the Rights Commissioner that he was informed of the procedures for taking breaks and that he was observed taking breaks with other colleagues at designated locations.
As the Court has found that the Complainant worked an average of just in excess of 26 hours per week during the cognisable period covered by the claim, and during this period the records indicate that he did not work after 5.00pm the Court finds that the claim is not well-founded.
Regulation 9 (Daily Rest)
Mr Grogan accepted that there is no provision under the Regulations to make a complaint in respect of an alleged breach of Regulation 9.
Regulation 11 Complaint (Obligation to Notify Driver of Regulations)
It was contended that the Complainant was not provided with notification of S.I. 36 of 2012 in compliance with Regulation 11. Mr Grogan submitted that failure to advise an employee of the provisions of the regulations is a criminal matter and accordingly appealed the quantum of the award determined by the Rights Commissioner.
The Respondent accepted that a copy of the Regulations was not furnished to the Complainant, however, Ms Ryan said that it was available for inspection and all mobile workers were informed of the its provisions. The Court notes that the Respondent accepts that this regulation was not complied with in relation to the Complainant. Accordingly, this complaint is well-founded. The Court varies the €500 award decided upon by the Rights Commissioner and instead awards the Complainant compensation in the amount of €1,000 for this contravention.
Regulation 12 Complaint (Maintenance of Records)
12. An employer shall do each of the following in relation to each mobile worker employed by him or her;- (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;
Mr Grogan submitted that the Respondent was in breach of Regulation 12(f) as no adequate records were provided to the Complainant when he made a request for such records on 23rdSeptember 2013.
Ms. Ryan denied that the Complainant requested such records from the Respondent.Mr. Grogan submitted substantial documentation to the Court in support of his claims under the Regulations. It is clear from that documentation that the Complainant referred his complaint to the Rights Commissioner under the Regulations on 23rdSeptember 2013, and received by the Rights Commissioner on 24th September 2013, while simultaneously, on the same day, sought a “Notice for Particulars”, including details of records from the Respondent. In such circumstances it is difficult to see how a claim for non-compliance with Regulation 12 (f) can be sustainable in law as the Respondent was not given an opportunity to respond to the request prior to the claim being referred.
Therefore the Court does not find the Complainant’s complaint under Regulations 12 well-founded.
Determination
For the reasons set out herein the Court is satisfied that apart from the complaint under Regulation 11, the Complainant's complaints under the Regulations are not well-founded. Accordingly the appeals are allowed in part and the decision of the Rights Commissioner is varied. The Court determines that the Complainant should be paid the sum of €1,000 as compensation for the breach of Regulation 11 which the Court has found to have occurred.
The Court so Determines.
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.