ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000949

Complaints for Resolution:

Date of Adjudication Hearing: 21/04/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Complainant’s Submission and Presentation:

The complainant was employed by the respondent from July 20^th 2015 until December 8^th when he was given two weeks notice which expired on December 23^rd 2015

1. In respect of his claim under the Terms of Employment (Information) Act (CA 1363 001) the complainant stated that his document was defective in a number of respects.

It had not been signed, did not contain the employer’s name, did not specify the place of work or rate of pay, his job title, the period of notice and did not make any provision for his pensions arrangement.

2. Payment of Wages Act
3. His first claim under the Payment of Wages Act relates to alleged unauthorised deductions from wages for an insurance policy in the amount of €4.81 per week giving a total of €67.34. (CA-1418-001)
4. His second claim relates to travelling time (CA1463-002). He claims that he is entitled to a total of 210 hours calculated on the basis of fifteen hours travelling time over fourteen weeks at €16 per hour. This is a claim for €3360. (For convenience I refer to this as the Tyco claim; see below)

3. Organisation of Working Time Act (Four Claims)

1. CA-00001418-002; Regarding his claims under sections 19, 20 and 23 he claims outstanding annual leave on the basis of 588 hours worked giving him an entitlement of 47 hour annual leave at €15 per hour. (the complainant hourly rate varied from €15 to €16 and it is not possible to separate the various periods to which each related). I apply the former and calculate this claim at €705.60

1. CA-00001463-001; He also claims that while he was paid for public holidays for August and October he was not paid for December 25th or 26^th and claims nine hours per day at €15 per hour. This adds €270 to his claim. He further claims compensation for breach of his rights under the Act.

1. CA-00001770-001; The complaint at 2 (b) above also gives rise to a the complaint under the Organisation of Working Time Act in that the working hours involved here were not factored in in the calculation of annual leave which is estimated at 50.4 hours annual leave. (based on a total of 630 hours). This equates to a further €756 at €16 per hour.

1. CA-00001770-002; In respect of other claims under the Organisation of Working Time Act he says that his employer was in breach of S. 17 in that he was not provided with a roster, would often be sent a text message the day before changing his shift, and sometimes even later.

Respondent’s Submission and Presentation:

The respondent did not attend the hearing.

Conclusions and Findings

I find that the respondent was on notice of the hearing and did not provide any acceptable explanation of his failure to attend.

I have therefore considered the evidence presented by the complainant and in the absence of an appearance by the respondent I have considered the various submissions as being made in good faith, and have accepted then except where indicated below.

That said, the submission of the complainant was woefully inadequate for such a complex claim. There were originally nine claims in all. (One CA-00001463-003 was erroneously listed twice, once for adjudication and also as a referral for an inspection; in fact it fell to be dealt with under the latter category). This reduces the complaints to seven; one under the Terms of Employment Information Act, two under the Payment of Wages Act and four under the Organisation of Working Time Act

The initial complaint provided only the skimpiest outline of the complaint and the complainant failed to provide a written submission outlining and supporting the claims at the hearing. He also failed to respond to requests subsequent to the hearing to do so.

Accordingly, some detailed aspects of the complaint were very poorly documented. It is vital when complaints are based on very detailed computations that complainants provide detail in a format that the Adjudication Officer can assess subsequent to the oral hearing.

Turning to the claims a copy of the Complainant’s ‘Terms of Engagement’ was exhibited. While it is somewhat defective in the detail complained of it represents an attempt at compliance with the requirements of the Act.

Regarding the first of the Payment of Wages Act claims (at 2 (a) above) I accept the evidence submitted.

In respect of the second the complainant did make a legal submission on the matter of ‘travelling time’ arising from a preliminary ruling of the Court of Justice of the European Union in the case of Federacion de Servicios Privados del Sindicato Comisiones Obreras (CC.OO) v Tyco Integrated Security SK and anor issued on September10th 2015.

The preliminary ruling held (at paragraph 21) that

‘By its question the referring court essentially whether point (1) of Article 2 of the Directive 2003/88/EC must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which the workers are not assigned to a fixed or habitual place of work, the time spent by those workers travelling between home and customers constitutes ‘working time’ within the meaning of that provision’.

Evidence was provided, in the form of what appeared to be an official company record; the ‘Operative History report’ of the various locations in which the complainant worked; for a period in October in Cherrywood, South Dublin, on other dates at Trinity College, Dublin, in Baldoyle etc.

However there is a key difference between the workers in Tyco and the complainant.

In Tyco the workers concerned were technicians employed to install and maintain security equipment in private homes and on industrial and commercial premises, and this was within a designated area which could be all or part of a Spanish province. The distances from the workers’ homes to the paces where they were to carry out their work could be more than one hundred kilometres. The time spent travelling from their homes to a customer could be more than three hours.

The question referred to the Court of Justice was;

‘Must Article 2 of Directive 2003/88 be interpreted as meaning that time spent travelling at the beginning and end of the day by a worker who is not assigned to a fixed place of work but is required to travel every day from home to the premises of a different customer of the employer and return home from the premises of another, different customer, (following a route or list that is determined for the worker by the employer the previous day) at all times within a geographical area that is more or less extensive, in the conditions of the main proceedings as described in the background to this question, constitutes ‘working time’ or. Conversely, must it be regarded as a ‘rest period’.

It will be seen from the description of the workers involved in Tyco that their position is entirely different to the complainant. They are essentially ‘mobile’ workers whose workplace is not in any way fixed in the course of the working day. In this case the complainant may have been assigned to different workplaces but once there he was ‘fixed’ for the day. In every other respect, once he was at work he was in the same position as a worker who commutes to a single location.

The court made it clear that its ruling applied ‘in circumstances such as those in the main proceedings’ and where the workers did not have a ‘fixed or habitual’ place of work, which I interpret from the Courts description of the workers in the case as meaning fixed in the course of the working day. It further deemed travelling time to be working time as ‘the time spent travelling each day between the first and the last customers designated by their employers.

This does not apply to the current complainant.

In respect of the four claims under the Organisation of Working Time Act I find as follows.

Organisation of Working Time Act (Four Claims)

1. CA-00001418-002; Regarding his claims under sections 19, 20 and 23 he claims outstanding annual leave on the basis of 588 hours worked giving him an entitlement of 47 hour annual leave at €15 per hour. I apply the former and uphold his claim for €705.60

1. CA-00001463-001; He also claims that while he was paid for public holidays for August and October he was not paid for December 25th or 26^th and claims nine hours per day at €15 per hour. This adds €270 to his claim which I also accept. He further claims compensation for breach of his rights under the Act.

1. CA-00001770-001; I have reviewed this complaint in the context of the Tyco case considered above and I dismiss it. I therefore dismiss it.

1. CA-00001770-002; In respect of other claims under the Organisation of Working Time Act he says that his employer was in breach of S. 17 in that he was not provided with a roster, would often be sent a text message the day before changing his shift, and sometimes even later.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold the complaints and award as follows (following my own enumeration above).

1)      In respect of the claim under the Terms of Employment Information Act I award the complainant one week’s wages in the amount of €585.

2)      Regarding the two claims under the Payment of Wages Act (Paragraphs 2 (a) and 2 (b) above) I award the complainant €67.64. I dismiss the complaint under 2 (b) above the ‘Tyco’ claim.

3)      In respect of the complaints under the Organisation of Working Time act (again using my own enumeration above) in respect of the claim at 3 (a); I award him €705.60, and at 3 (b); €270. I dismiss the claim at 3(c).

Finally in respect of 3(d) I award him €750.

Dated:   29 July 2016