DWT1680

Background

The Respondent Company operates an international transport business. It employed the Complainant as an international truck driver from 29 January 2009 until March 2013.

The Complainant submits that the Respondent infringed section 14 of the Act.

Section 14 of the Act sates

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

Complainant's Case

The Complainant submits that his was required to work on a Sunday and that fact was not otherwise taken account of in the determination of his pay and submits that he is accordingly entitled to be compensated by his employer for being so required to work.

Respondent's Case

The Respondent submits that the Complainant is paid the sum of €5.00 per week in excess of the minimum wage and that this amount constitutes a Sunday premium within the meaning of the Act.

The Court finds that the complainant was required to work on Sunday. The Court has found in related proceedings that the Respondent did not pay the Complainant the National Minimum Wage. Accordingly the Court finds that there is no evidence before it that the requirement to work on Sunday was taken account of in the determination of his pay. The Court accordingly finds that the Complaint is well founded and determines accordingly.

Determination

The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €1,000.

Section 17 Complainant

The Complainant submits that the Respondent infringed section 17 of the Act.

Section 17 of the Act states

• (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 finishingtimes 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 thetimes 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.

  (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may fromtimetotimedecide (in this subsection referred to as “additional hours”), the 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 that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of thetimes at which the employee will be required to start and finishworkingthe additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2) , the employee has not been required to do work for the employer, thetimeat which the employee shall be notified of the matters referred to in subsection (1) or (2) , as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

  (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2) , as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) attimes other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at thosetimes.

  (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.

The Complainant submits that his daily commencement and finishing times did not follow a set roster. It was contingent on the loads he was collecting, hauling and unloading. He submits that these varied from day to day and that he was notified of his start and finish times each day less than 24 hours before the commencement time of his next load. He submits that his finish time was variable and depended on the load he was hauling and the time he delivered the load to either a customer or to a ferry port for an onward journey by ferry. He submits that such variability in start and finish times is not consistent with the provisions of section 17 of the Act. He further submits that he did not receive 24 hours’ notice of the his start and finish times or of any additional hours he was required to work when called upon to do so.

Respondent's Case

The Respondent submits that the Complainant was aware from the source and destination of the loads he was hauling of his start and finish times. It further submits that the Complainant worked in the road haulage business and that his journeys were subject to the vagaries of weather and road traffic conditions. It submits that it was not possible to provide the Complainant with precise start and finish times but that these could be anticipated within a reasonable margin or error based on the loads he was hauling and the prevailing weather and traffic conditions which are an occupational reality in the sector.

Findings of the Court

The Court finds that

The Court finds that the complainant is entitled to 24 hours notice of his start and finish times. The Court finds that the Complainant was given such notice of the commencement of his shift when travelling to either the UK or to the Continent. However the Court finds that the Respondent did not provide the Complainant with a start and finish time each day. That time was determined by the distance to be travelled or the backload to be collected.

The Court finds that the Respondent notified the Complainant while travelling of his next load and the scheduled collection time for that load. That required the Complainant to travel on that day to another location to collect the load or to set out in good time the following morning to do so. Accordingly his start and finish times were flexible but he was not provided with 24 hours’ notice of those times are required by section 17.

The Court notes that the Respondent operates in a business that requires it to maintain a high degree of flexibility regarding the collection and delivery of loads. It is also subject to the vagaries of the road transport sector including traffic snarl ups, international delays and weather variations. However they do not permit it to behave with disregard for its obligations under Section 17 of the Act. It must manage its business in a lawful manner and that includes providing the Complainant with notice of his start and finish times and 24 hours notice of changes to those times. In this case it failed to so do.

Determination

The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €500. The Court so determines.

Sections 20 and 21 Complaints

In related proceedings the Complainant alleges that he was not paid the statutory minimum wage. He submits that should he succeed in that case it follows that the holiday pay he received in respect of both Public Holidays and Annual Leave entitlements were less than that to which he was entitled under the Act. He submits that any loss that he has thereby incurred can be addressed in the proceedings under that Act. However he submits that he is entitled to compensation for the infringement of his entitlements under this Act.

The Respondent submits that it is compliant with the Minimum Wage Act and that there is no merit in the complaint.

Findings of the Court

The Court finds that as the Respondent failed to pay the Complainant the statutory minimum wage it also failed to pay him his holiday pay in accordance with the statute. Such a failure amounts to an infringement of the statute. The Court therefore finds the Complaint well founded. The substantive loss has been addressed in related proceedings under the Minimum Wage Act. However the issue of the infringement of the Complainant’s rights under this Act remain to be dealt with.

Determination

The Complaint is well founded. The Court orders the Respondent to pay to the Complainant compensation in the amount of €250 for the infringement of section 20 of the Act and a further €250 for the infringement of section 21 of the Act.

Signed on behalf of the Labour Court



Brendan Hayes
19th September 2016______________________
SCDeputy Chairman



NOTE

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