RTD161

The complaints relate to alleged contraventions of Regulation 5 of the Regulations (maximum weekly working hours), Regulation 11 (notification of the Regulations) and Regulation 12(f) (provision of records of working time).

The Rights Commissioner / Adjudication Officer found that Regulations 5 and 12 had been contravened. He found that Regulation 11 had not been contravened.

The Complainant was awarded compensation in the amount of €500 in respect of the contravention of Regulation 5 and compensation of €400 for the contravention of Regulation 12 of the Regulations.

In his appeal the Complainant takes issue with the quantum of compensation awarded by the Rights Commissioner / Adjudication Officer and with his finding in relation to Regulation 11 of the Regulations. The Respondent takes issue with the finding of liability and with the quantum of compensation.

The Respondent operates a refuse collection service. The Complainant was employed as a truck driver between May 2007 and July 2014.

Regulation 5
The Complainant contends that he worked between 10 and 12 hours per day. He told the Court that he commenced work at 5am and finished when the collections assigned to his route were completed. He normally finished between 4pm and 5pm. He took breaks when he could, having regard to his workload. He completed daily time sheets which he submitted to the Respondent. These time sheets recorded his daily working hours at the figure referred to in his evidence.

The Respondent contends that the Complainant deviated from his assigned route and engaged in a practice of making unauthorised collections (this practice was the subject of separate proceedings under the Unfair Dismissals Act which were heard in conjunction with the within appeal). According to the Respondent the fleetmatics tracking devise fitted to the Complainant’s truck showed periods during the day when he was either at a location that was unauthorised or that the truck was inactive.

The Court received extensive evidence in relation to the operation of the tracking device and on an analysis of the data collected from the tracking device.

While this evidence shows that there were many periods during the day in which the truck ordinarily operated by the Complainant was inactive it does not amount to evidence of when the Complainant was or was not working.

The Court is, however, satisfied on the evidence that the Complainant did take breaks during his normal working day of various durations which he failed to record on the time sheets that he submitted to the Respondent.

Regulation 5 of the Regulations provides, in effect, that a worker to whom the Regulations relates may not work for more than 48 hours per week on average. Regulation 6 of the Regulations provides that periods of availability or breaks are not to be included in the calculation of working time.

Having considered all of the evidence adduced in the course of the hearing of this appeal the Court has come to the conclusion, as a matter of probability, that when the breaks taken by the Complainant in the course of his normal working day are discounted, he did not work in excess of 48 hours per week.

It follows that this aspect of his complaint is not well founded.

Regulation 11
The Court is satisfied that the Complainant was notified of the Regulations in accordance with Regulation 11. Accordingly this aspect of the complaint is not well founded.

Regulation 12
This complaint relates specifically to the obligation placed on employers by Regulation 12(f) to provide, at the request of a worker to whom the Regulations relate, a copy of the hours worked by that worker.

The Complainant’s solicitor, acting on his instructions, requested a copy of the working time records retained by the Respondent in respect to the Complainant. The Respondent furnished the solicitor with daily time sheets completed by the Complainant and with the analysis of the fleetmatics records in relation to the truck operated by the Complainant. The latter were provided in electronic form.

The fleetmatics records related to the movements and activity of the vehicle to which the device is fitted and are not working time records. The daily time sheets were the only other records maintained by the Respondent and these were furnished. Regulation 12(a) obligates an employer to maintain a record of the working pattern of a mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability. This detail was not recorded on the daily time sheets. However no issue was raised in the appeal or before the Rights Commissioner / Adjudication Officer in relation to Regulation 12(a) of the Regulations.

The Court is satisfied that the Respondent furnished the Complainant, through his solicitor, with the only records pertaining to his working time that it maintained. In these circumstances the Court cannot hold that Regulation 12(f) was contravened.

Outcome
The Court is satisfied that the Respondent did not contravene the Regulation in respect to the provisions relied upon in his complaint to the Rights Commissioner/Adjudication Officer.

Accordingly the Court is satisfied that his complaints are not well founded. The Complainant’s appeal is disallowed and the Respondent’s appeal is allowed.

The decision of the Rights Commissioner / Adjudication Officer is set aside and substituted with this determination.

Signed on behalf of the Labour Court



Kevin Duffy
30th March 2016______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.