ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003068

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 29/11/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

 Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant’s contract specifies normal daily pay as €90.00 and Sunday pay as €103.60.

A Sunday premium is paid.

Holiday pay is currently paid at a rate of €90.00 per day.

The complainant was issued with a contract of employment.

The complainant was issued with a letter regarding the Transfer of Undertaking (TUPE) and signed for same.

The complainant took 2 weeks holiday in one block in 2015 from 16 November to 1 December.

The respondent checks the tachograph record reports and these confirm that there were no infringements for breaks in the 6 months from October 2015. If infringements occur they are brought to the notice of the driver concerned who is also informed of what action to take to prevent further infringements.

The complainant receives 45 hours rest one week followed by 24 hours the following week and this is also subject to tachograph monitoring.

The complainant was paid his Public Holiday entitlement. He was sick from 30 December 2015 until 30 September 2016 and was paid his Public Holiday entitlement on his return to work.

The complainant worked before 4am on one occasion in the 6 months prior to the claim. The records ensure that excessive hours are not worked.

Starting times are notified verbally and via text to the drivers the day before but, owing to the nature of the business, it is not possible to notify finishing times in advance.

The tachograph records are checked to ensure drivers get all their proper breaks.

The respondent’s records show that the complainant did not work more than an average of 48 hours for the reference period in the 6 months prior to the complaint.

The Statutory Instrument (S.I. No. 36 of 2012) containing the regulations was posted in two locations in the workplace and a summary of the law is given to all drivers.

The complainant’s contract specifies that the annual leave year finishes on 31 December each year.

The respondent keeps adequate records as detailed above.

Records are checked on a regular basis to ensure that the minimum wage is paid. Any shortfall is paid by way of top-up in the next pay period.

Decision:

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

Issues for Decision:

Did the respondent breach the complainant’s rights in relation to the issues which are the subject of the complaints?

Legislation involved and requirements of legislation:

Organisation of Working Time Act, 1997

Terms of Employment (Information) Act, 1994

National Minimum Wage Act, 2000

European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012

Decision:

The complainant is employed as a truck driver operating within the state by the respondent company which operates a large fleet of vehicles engaged in road haulage. His employment commenced in March 2006 and he works full-time at a rate of €90.00 per day.

The respondents confirmed that they were the employer of the complainant and this was accepted on behalf of the complainant.

Complaint No. CA-00004353-001:

This complaint is to the effect that the complainant did not receive a premium payment for working on Sunday.

Section 14 of the Organisation of Working Time Act, 1997, states:

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 into 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 –

1. by the payment to the employee of an allowance of such an amount as is reasonable to all the circumstances, or

2. by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

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

4. by a combination of two or more of the circumstances referred to in the preceding paragraphs.

1. 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.

2. 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 him or her being required to work on a Sunday shall be regarded, for the purposes aforesaid, as the value of the 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 minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of him 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, 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.

The respondent gave evidence that the normal daily rate of pay for the complainant was €90.00 per day but that if 8 hours were worked on a Sunday then the payment for that day was €103.60. If the work amounted to 4.5 hours or less then the premium was €6.80 on €45.00.

It therefore appears that a premium rate is paid for Sunday working. However, as specified in the legislation, the amount of the premium has to be reasonable. In this respect there is an onus on the respondent to demonstrate that this is so. As the respondent is not a direct party to a collective agreement, Section 14(3) of the Act applies. The respondent accepted that no reference had been made to existing collective agreements covering comparable employees when formulating the premium payment for Sunday that applied to the complainant. I therefore find that in that respect the complaint is well founded. I note that the complainant was absent on sick leave from 30 December 2015 and returned in September 2016 after the complaint was filed. Taking everything into consideration I order the respondent to pay the complainant compensation to the value of €500.00. I also order the respondent to comply with the requirements of the legislation to ensure that the amount of the premium is reasonable in all the circumstances and to amend the premium for Sunday working to time plus 50%

Complaint No. CA-00004353-002:

This complaint relates to the claim that the payment for Public Holidays does not take into account premium payments in respect of Sundays. The respondent accepted that they did not include Sunday premium payments in such calculations.

Regulation 3 of S.I. No. 475 of 1997 sets out the manner for determining pay in relation to Public Holidays and Annual Leave. The Labour Court in DWT 1611 / 2016 considered this matter and determined that “Sunday premium is an allowance and accordingly must be included for the purposes of determining pay for annual leave public holiday entitlements.” I therefore find this complaint to be well founded and order the respondent to pay the complainant the sum of €100.00 as compensation and to amend the method of calculating such payments accordingly.

Complaint No. CA-00004353-003:

This complaint refers to the claim that the payment for Annual Leave does not take into account premium payments in respect of Sundays.  The respondent stated that they did not include Sunday premium payments in such calculations.

For the reasons cited in the previous complaint I find this complaint to be well founded and order the respondent to pay the complainant the sum of €120.00 and to amend their method of calculating such payments accordingly.

Complaint No. CA-00004353-004:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant did not receive a statement of employment that complies with the legislation. The requirements of the legislation in this regard are set out in Section 3 of that Act. The respondent for their part rejected this and produced copies of a contract and addendums which included a signed acknowledgement of receipt of the contract together with a translated copy of same dated 8 October 2009.

I therefore find the complaint as presented to be not well founded and I dismiss it accordingly.

Complaint No. CA-00004353-005:

This is a complaint that the respondent failed to notify the complainant in relation to a change of employer which occurred as a result of a Transfer of Undertaking. The complaint is filed under the Terms of Employment (Information) Act, 1994.

Section 5 of the Act states:

1. Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

1. 1 month after the change takes place, or

2. Where the change is consequent on the employee being required to work outside the state for a period of more than 1 month, the time of the employee’s departure.

The respondent produced copies of notices in both English and Lithuanian which it was stated were issued to the complainant in June 2014 and in which he was advised that for restructuring purposes his employment was being transferred to the respondent. The complainant’s signature acknowledging receipt of the notice appears on a separate sheet of the Lithuanian version. The complainant did not contradict the assertion that he had been issued with this document.

I therefore find, on the basis of the evidence before me, that this complaint is not well founded and I dismiss it accordingly.

Complaint No. CA-00004353-006:

This is a complaint to the effect that the complainant did not receive 2 weeks uninterrupted annual leave entitlement and that he was not paid in advance in respect of annual leave.

Section 19(3) of the Organisation of Working Time Act, 1997, states:

The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

Section 20(2) of the Act states:

The pay in respect of an employee’s annual leave shall –

1. be paid to the employee in advance of him or her taking the leave,

2. be at the normal rate or, as the case may be, at a rate which is proportionate to the normal weekly rate…

The respondent produced records which showed that the complainant was on annual leave from the 16 November 2015 until 30 November 2015 inclusive and that payment in respect of this was made on 11 December 2015. I therefore find that the complainant did receive his entitlement in respect of Section 19(3) 0f the Act and accordingly that aspect of the complaint is not well founded and therefore fails. The complaint in respect of a breach of Section 20(2) is well founded and I order the respondent to pay the complainant the sum of €100.00 as compensation in his regard.

Complaint No. CA-00004353-007:

This complaint alleges that the complainant did not receive his correct entitlement to breaks whilst working.

The regulations regarding the sector in which the complainant is employed are contained in S.I. No. 36 of 2012, European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

The respondent’s position is that the reports received from the tachograph monitoring system for the 6 months from October 2015 in relation to the complainant confirm that there were no infringements of breaks. The respondent pointed out that the tachograph system records hours worked and that this is then checked by them to ensure that driving hours comply with the law. The data results are discussed with drivers and if there are any infringements with regard to legal requirements these are recorded on a specific form which the driver concerned is requested to sign. The complainant refused to sign this form from November 2015 onwards but there was no written notification from him regarding issues with working hours / breaks.

The complainant’s position was that the tachograph records did not comply with the requirements of the legislation as regards record keeping and referenced the findings of the Labour Court in Determination No. MWD 1680. This case dealt with a complaint under the National Minimum Wage Act, 2000, and in reaching its decision the Court considered a previous case under the same legislation, MWD 146 which stated:

“In contending that records were maintained, the respondent relied on tachograph records and pay statements issued to the claimants. The tachograph records, at best, relate to the time actually worked by the driver in question. That may be sufficient compliance with the requirements to keep records for the purpose of other enactments. But, as previously noted, working hours for the purposes of the Act of 2000 can relate to the hours during which the worker is contracted to work and for which he or she is paid. That may, or may not, correspond to the time actually worked in a given reference period.”

It is clear that these decisions relate specifically to the Act of 2000. The respondent argued that the tachograph was capable of recording other activities as it had a number of modes such as availability, breaks and other work. The tachograph data is downloaded, analysed and a report prepared by a specialist third party and these reports are then examined by the respondent to ensure compliance with the legislation. Having examined the documentation provided in this regard my finding is that I share the concerns expressed by the Court as to reliance on the tachograph records to ensure compliance with the requirements under the legislation. The onus to prove that the complainant received their statutory entitlements as regards rest periods lies with the respondent. I therefore find that this complaint is well founded. On the basis of the evidence before me I do not believe that the respondent deliberately set out to avoid their obligations. Taking everything into consideration I order the respondent to pay to the complainant the sum of €500.00 as compensation.

Complaint No. CA-00004353-009:

This is complaint to the effect that the complainant did not receive his entitlement to weekly breaks. The position of the respondent is that the complainant did receive his entitlement in this regard and that the tachograph reports were monitored to ensure compliance in this respect. For the reasons set out in relation to the preceding complaint I find this complaint to be well founded and require the respondent to pay the complainant the sum of €500.00 as compensation.

Complaint No. CA-00004353-010:

The complainant states that he did not receive his entitlements as regards Public Holidays. Section 21(1) of the Organisation of Working Time Act, 1997, states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely:

1. a paid day off on that day,

2. a paid day off within a month of that day,

3. an additional day’s leave,

4. an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The respondent denied this claim and stated that the claimant did not work any of the six public holidays that occurred in the six months prior to the filing of the claim. He was paid his entitlement in respect of these days. As the complainant was absent on sick leave from 30 December 2015 until 30 September 2016 he was paid for four of those days when he returned to work. The complaint therefore is well founded but there was no economic loss incurred by the complainant and I make no finding as to compensation.

Complaint No. CA-00004353-011:

This complaint is to the effect that the complainant was required to work before 4am on occasions and work in excess of 10 hours per day.

Regulation 10(1) of S.I. No. 36 of 2012 states:

Subject to any derogations under Article 8 of the Directive, the working time of a person performing mobile road transport activities, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period.

The respondent in evidence said that they could only identify one occasion in the six month period prior to the complaint where the complainant commenced work before 4am and this was not disputed by the complainant. I find the complaint as presented not to be well founded and it therefore fails.

Complaint No. CA-00004353-012:

The complainant stated that he was not notified of his starting or finishing times in advance and that this was a breach of Section 17 of the Organisation of Working Time Act, 1997. The respondent stated that because of the type of business conducted by the company it was impossible to notify drivers of finishing times in advance but that starting times are notified either verbally or by text the day before.

The Labour Court considered this matter in Determination DWT 1680 which dealt with similar issues. In its finding the Court stated:

“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.”

I therefore find that this complaint is well founded and order the respondent to pay the complainant the sum of €500.00 as compensation in that regard.

Complaint No. CA-00004353-013:

This complaint is that the complainant did not receive their entitlement to breaks as set out in the Regulations (S.I. No. 36 of 2012). The respondent stated that they relied on the tachograph reports to ensure that the regulations were being observed. The complainant’s position was that he received breaks after 4.5 hours driving time as distinct from working time. I have already addressed the issue of the respondent’s reliance on tachograph records to ensure compliance with the regulations and I therefore find that this complaint is well founded and order the respondent to pay the complainant the sum of €500.00 as compensation in this regard.

Complaint No. CA-00004353-014:

This is a complaint to the effect that the complainant was required to work more than the maximum number of hours permitted by the Regulations (S.I. No. 36 of 2012).

Regulation 5(1) states:

Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed –

1. a working time of more than 60 hours in a week,

2. an average weekly working time of 48 hours in any reference period.

The respondent stated that the records showed that the respondent had not worked more than 48 hours per week on average during the reference period. On the same basis as previous complaints I find this complaint to be well founded and order the respondent to pay to the complainant the sum of €500.00 as compensation in this regard.

Complaint No. CA-00004353-015:

This complaint states that the complainant was not notified of the working hours regulations applying to the road transport sector. Regulation 11 of S.I. No. 36 of 2012 requires an employer to notify their employees of the provisions of the Regulations and to keep a copy available for inspection at all reasonable times. The respondent stated that the Regulations were posted in two prominent locations in the workplace and notices to this effect in several different languages were circulated. On the basis of the evidence presented I find this complaint to be not well founded and it accordingly fails.

Complaint No. CA-00004353-016:

This complaint is to the effect that the complainant did not receive prior notice of the annual leave year. The respondent stated that the complainant’s contract specified that the leave year finishes on 31 December of each year. The copy of the contract presented to the hearing contains the following sentence:

“The holiday year ends on 31^st December and all holidays must be taken within the relevant year.”

The leave year for the purposes of the Organisation of Working Time Act , 1997, commences on 1 April and finishes on the following 31 March. That is a different issue as the complaint was to the effect that the complainant had not been notified of the leave year. On the basis of the evidence before me I find this complainant not to be well founded and it accordingly fails.

Complaint No. CA-00004353-017:

This complaint is to the effect that the respondent did not provide records which were requested by the complainant under the Regulations (S.I. No. 36 of 2012). Regulation 12(f) of the Regulations states:

12   An employer shall do each of the following in relation to each mobile worker employed by him or her:

provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

On 6 April 2016 the respondent’s solicitor forwarded a letter signed by the complainant requesting, inter alia, the hours of work on a weekly basis which he had worked since 1 September 2015.   No formal response was received in relation to that request. The respondent stated that records of working hours derived from the tachograph were given to each driver. Copies of this monthly document for October, November and December 2015 (from which time the complainant was on sick-leave) were exhibited. The sheet for October was signed by the complainant after which he refused to sign. It would therefore appear that a specific request, as provided for by the Regulations, was made but not responded to. I therefore find this complaint to be well founded and require the respondent to pay the sum of €250.00 to the complainant as compensation in this regard.

Complaint No. CA-00004353-018:

This complaint is to the effect that the complainant was paid less than the minimum wage in breach of the National Minimum Wage Act, 2000. Section 14 of the National Minimum Wage Act, 2000, states:

Subject to sections 17 and 18 –

1. an employee who has attained the age of 18 years shall, subject to sections 15,16 and 41, be remunerated by his or her employer in respect of the employee’s working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay…

The complainant’s contract does not provide for a hourly rate of payment but states that he will be paid for 5 days each week (Monday to Friday subject to availability) at a rate of €90.00 per day, based on an average working time day of eight hours. Individual days may vary above or below this average. It also states that the pay reference period is 4 weeks and that the company guarantees that the minimum average hourly rate of pay will not be less than the minimum wage legislation at the time. The respondent stated at the hearing that they closely monitor the tachograph records in order to ensure that the drivers are not paid below the minimum wage for hours worked. If a payment does fall short then a top-up payment is included in the following month’s pay.

There are clear parallels between this case and the case under consideration by the Labour Court in Determination MWD 1612 referenced earlier. Given that the contract merely states that individual days may vary above or below eight hours then the complainant’s contractual liability is presumably up to the maximum permitted under the Regulations. I therefore find that the complaint is well founded. The complainant’s legal representative quantified the loss based on an estimate and on being required to work 6 days every week. No direct evidence was given in relation to the latter. In regard to compensation I order the respondent to pay to the complainant the sum of €8,000.00 as compensation for loss of wages.

Dated:   12^th April 2017