ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000117

Complaints for Resolution:

Date of Adjudication Hearing: 8th January 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th October 2015, the complainant referred complaints to the Workplace Relations Commission. The complaints were made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, the Organisation of Working Time Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 8^th January 2016.

At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondents. The case file includes correspondence issued by the Workplace Relations Commission to the respondents dated the 4^th November and 18^th December 2015. On this basis, I proceeded with the adjudication in the absence of either respondent.

The adjudication file contains two sets of complaints CA-0000162-001 to CA-0000162-003 and CA-0000169-001 to CA-0000169-003. The ‘162’ complaints are made against one entity and the ‘169’ complaints are made against another. It is not clear from the documentation who the proper respondent should be as the contract documentation refers to one limited company trading as another limited company.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, 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.

For the sake of clarity, I have separately decided complaints from the same complainant against the same respondents in relation to claims made pursuant to employment equality enactments.

Complainant’s Submission and Presentation:

The complainant commenced employment with the respondents on the 7th June 2014. He was engaged as a lorry driver at the respondents’ depot. His duties including driving a lorry and unloading deliveries to respondents’ retail stores as well as shunting work in the depot.

The contract of employment does not specify hours of work and provide an hourly rate of pay of €14.25 up to the 30th November 2012 and €14.46 from the 1st December 2012, for 12 months. It also provides that Saturdays, Sundays and public holidays are ordinary days of work. It provides overtime rates for work carried out above contracted hours. The complainant submits an acknowledgement he signed, agreeing to remove the 10-hour limit for night work and extending the reference period from 17 to 26 weeks for calculating the 48-hour average. This acknowledgement is stated as pursuant to the European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2005.

The complainant referred to 14 pay slips covering the period of the 9th January 2015 to the 1st May 2015. He outlined that they show that he was required to work for more than the maximum permitted hours. He also said that he regularly worked on Sundays and received no Sunday premium. The calendar submitted by the complainant shows that he worked seven of the 18 Sundays listed. The annual leave and public holiday pay did not factor in the Sunday premium he was entitled to. He also did not receive the overtime specified in the contract. The complainant said that there had been breaches of section 17 of the Organisation of Working Time Act when he had not received 24 hours' notice of night shifts. Generally, he was informed of his start time and route at 9pm on the day before and was not therefore given 24 hours' notice when he had to start work between 11am and 1 or 2pm. If the route was an arduous one, he might not finish until 1am, but still had to work the following day.

The complainant said that he was never informed of the provisions of S.I.36/2012 and did not operate under its provisions. It was a criminal offence for him to drive in breach of these Regulations, as it was for the employer. The complainant outlined that he had requested records from the respondents but none were provided. He said that he also had not received the particulars of his employment pursuant to section 3 of the Terms of Employment (Information) Act, 1994.

In relation to the end of his employment relationship with the respondents, the complainant said that on the 17th July 2015, he sent a document entitled 'notice of particulars/grievance' to the respondents that was never responded to. This outlines that he has been asked to work illegally and lists 25 issues arising in the workplace. He said that, prior to serving this notice, he had complained five or six times to his line managers. This occurred, for example, when he had not had 11 hours of rest between shifts. There was no facility for him to sleep in the truck and he had to return the lorry to the depot and then travel home after the end of every delivery run. He also said that at the end of June 2015, he was injured while unloading the lorry, causing him to be out sick for three weeks. He had asked for lighter loads but was given two heavy delivery runs instead. Because his letter of the 17th July 2015 had not been addressed, he wrote to the respondents on the 31st July 2015 to tender his resignation as he was not prepared to work illegally.

Respondents’ Submission and Presentation:

There was no appearance by or on behalf of the respondents at the adjudication and neither did they make submissions in advance of the adjudication.

Findings and reasoning:

The complainant worked as a lorry driver for the respondents between the 7^th June 2014 and the 31^st July 2015. He raises three complaints: pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, he states that he did not receive records of his work in mobile transport; pursuant to the Organisation of Working Time Act, he raises his hours of work and pursuant to the Unfair Dismissals Act, he claims constructive dismissal.

The complainant exhibits an undated acknowledgement which he signed and which has as its title “European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2005.” It provides that the complainant agrees to the following: “Extension of the reference period from 17 to 26 weeks for the calculating the 48 hour average.” The second bullet states “Removal of the restriction of the 10 hour limit for night work.” The document states “I have an understanding of the main provisions contained in the regulations.”

The 2002 Directive

Article 1 of Directive 2002/15/EC provides as follows: “The purpose of this Directive shall be to establish minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of persons performing mobile road transport activities and to improve road safety and align conditions of competition.”

Article 7 of the Directive provides in relation to night work:

“1. Member States shall take the measures necessary to ensure that:

- if night work is performed, the daily working time does not exceed ten hours in each 24 period,

- compensation for night work is given in accordance with national legislative measures, collective agreements, agreements between the two sides of industry and/or national practice, on condition that such compensation is not liable to endanger road safety.

 
2. By 23 March 2007, the Commission shall, within the framework of the report which it draws up in accordance with Article 13(2), assess the consequences of the provisions laid down in paragraph 1 above. The Commission shall, if necessary, submit appropriate proposals along with that report.

3. The Commission shall present a proposal for a Directive containing provisions relating to the training of professional drivers, including those who perform night work, and laying down the general principles of such training.”

The 2005 Regulations

The European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2005 (S.I. 2/2005) transposed Directive 2002/15/EC.

Regulation 5(4) of the 2005 Regulations provides as follows in relation to the reference period for calculating the average working week: “(4) The reference period may be extended in relation to particular mobile workers or a specified class or classes of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a registered employment agreement or an employment regulation order, by the substitution for 17 weeks of a period not exceeding 26 weeks in the application of paragraphs (2) and (3)(a) of this Regulation.”

The 2005 Regulations provide as follows in relation to ‘night time and ‘night work’:

““night time” means in respect of motor vehicles used for carrying goods the period between 00.00 hours and 04.00 hours and in respect of motor vehicles used for carrying passengers the period between 01.00 hours and 05.00 hours;

“night work” shall mean any work performed during night time”

Regulation 10 of the 2005 Regulations provides as follows in relation to night work:

“10.(1) The working time of a mobile worker, who performs night work in any period of 24 hours, shall not exceed 10 hours during that period.

(2) The period of 10 hours may be extended in relation to particular mobile workers or a specified class or classes of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or an employment regulation order or a registered employment agreement.

(3) Compensation for night work shall not be given to a mobile worker in any manner which is liable to endanger road safety.

(4) An employer shall ensure that the limit specified in paragraph (1) of this Regulation, or extended in accordance with paragraph (2) of this Regulation, is complied with in the case of each mobile worker employed by him.”

The 2012 Regulations

The European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (S.I. 36/2012) were enacted on the 30^th January 2012. They revoked the 2005 Regulations.

Regulation 4 of the 2012 Regulations provides in relation to the reference period for calculating the average working week:

(1) The reference period for a mobile worker shall be—

(a) where a collective agreement, an employment regulation order or a registered employment agreement provides for the application of this Regulation in relation to successive periods of 17 consecutive weeks, each such period,

(b) where a collective agreement provides for the application of this Regulation in relation to successive periods of 26 consecutive weeks, each such period,

(c) in a case where—

(i) neither (a) nor (b) applies, and

(ii) the employer gives written notice to the mobile worker in writing that he or she intends to apply this subparagraph, any period of 17 consecutive weeks in the course of the worker’s employment, or

(d) in any other case, each successive period in each year beginning at midnight at the beginning of the Monday which falls on, or is the first Monday after, a date in column (1) and ending at midnight at the beginning of the Monday which falls on, or is the first Monday after, the date on the same line in column (2) in the Table to this paragraph:

TABLE

Beginning(1)                                                  End(2)

1 January                                                        1 May

1 May                                                              1 September

1 September                                                   1 January

(2) The reference period for a self-employed driver shall be—

(a) each successive period of 17 consecutive weeks,

(b) each successive period of 26 consecutive weeks, or

(c) in any other case, the period referred to in paragraph (1)(d).”

The Regulations provide the same definition of “night time” and “night work” as in the 2005 Regulations. Regulation 10 of the 2012 Regulations provides as follows in relation to night work:

“10. (1) 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.

(2) Compensation for night work shall not be arranged by a self-employed driver or be given to a mobile worker in any manner which is liable to endanger road safety.

(3) An employer shall ensure that the limit specified in paragraph (1) is complied with in the case of each mobile worker employed by him or her.”

2015 Regulations

The Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 (S.I. 342/2015) were enacted on the 31^st July 2015.

The 2015 Regulations state that sections 11 (daily rest period), 12 (rests and intervals at work), 13 (weekly rest periods), 15 (weekly work hours) and 16 (nightly working hours) of the Organisation of Working Time Act do not apply to persons performing mobile road transport activities. This provides clarification that where the employee falls within the scope of the 2012 Regulations and the Directive, recourse in relation to night work etc should be sought via the Regulations and not pursuant to the Act.

Issues arising in this adjudication

The transit of haulage is an important part of the economy and also presents significant health and safety issues for lorry drivers and for the general public. In this regard, Directive 2002/15/EC provides for the regulation of working hours of workers performing mobile transport duties. The Directive was transposed into Irish law by way of the 2005 Regulations, since revoked and replaced by the 2012 Regulations.

Two issues arise from the undated disclaimer signed by the complainant, which he says was provided to him by the respondents at the outset of his employment in 2014. The first, obvious, discrepancy is that the disclaimer refers to the 2005 Regulations when they had been revoked in 2012. The second issue is that the document seeks to ease restrictions imposed by the Regulations in a manner not permitted by the Regulations. Regulation 5(4) of the 2005 Regulations only allowed the extension of the reference period for calculating average weekly work where there were “objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or a registered employment agreement or an employment regulation order.” There is no evidence of such reasons or collective agreement in this case. Similar wording is used in relation to extending a period of night work beyond 10 hours. Regulation 10(2) of the 2005 Regulations states: “The period of 10 hours may be extended in relation to particular mobile workers or a specified class or classes of mobile workers for objective or technical reasons or reasons concerning the organisation of work, by a collective agreement or an employment regulation order or a registered employment agreement.” Again, there is no evidence of any such reasons or any such collective agreement in this case.

The complainant makes the following claims in the presentation of his case. He states that he was not provided with records as required by the 2012 Regulations. He worked in excess of the maximum weekly hours and did not receive sufficient rest between work days. He claims that he was not provided with 24 hours’ notice of the start of his working day and claims a Sunday premium for seven Sundays he worked. These are claims made pursuant to the 2012 Regulations and the Organisation of Working Time Act. He asserts that the failure of the respondents to address his health and safety complaints led to his resignation and, in turn, to the claim of unfair dismissal.

Given the evidence presented by the complainant and the fact that it has not been contradicted by the respondents, I find that the contraventions of the 2012 Regulations are well founded. They relate to work in excess of the maximum weekly hours and insufficient rest between work days. He also sought, and was not supplied with, records required under the Regulations. Having assessed the extent of the breaches, I award redress of €2,500 pursuant to the 2012 Regulations.

Pursuant to the Organisation of Working Time Act, I find that the complainant was not given 24 hours’ notice of his start time in afternoon shifts and not paid a Sunday premium on seven occasions. Having assessed the nature and extent of the breaches, I award redress of €500 pursuant to the Act.

I find that the claim of unfair dismissal is well founded. In reaching this finding, I note that this matter relates to the working time of lorry drivers arising from Directive 2002/15/EC and transposed into Irish law by the 2012 Regulations. I note that the Regulations provide for the health and safety of workers and to improve road safety. I note that a person who fails to comply with the Regulations commits an offence, i.e. attracts criminal liability. I note that any such conviction could prevent the complainant from working elsewhere in the industry. I note that the respondents provided a disclaimer referring to already revoked legislation and sought to exclude their application to weekly work hours and night work in a manner not compliant with the Regulations. I note that the complainant raised these issues with the respondents. Taking these factors into account, it follows that the breaches of the 2012 Regulations represented a repudiatory breach of contract by the respondents, permitting the complainant to consider himself to have been dismissed by the actions of the respondents. The claim of constructive dismissal, therefore, succeeds. Having assessed the evidence, I make an award of €11,000 for this element of the claim.

Awards have been made pursuant to each complaint on a joint and several basis against both respondents. For the sake of clarity, the complainant is entitled to recover a maximum of €14,000, made up of the constituent elements of each of the three claims.

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.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-0000162-001

Pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, I find that the claim is well founded and award redress of €2,500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-001.

CA-0000162-002

Pursuant to section 27 of the Organisation of Working Time Act, I find that the claim is well founded and award redress of €500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-002.

CA-0000162-003

Pursuant to section 8 of the Unfair Dismissals Act, I find that the claim is well founded and award redress of €11,000 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-003.

CA-0000169-001

Pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, I find that the claim is well founded and award redress of €2,500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-001.

CA-0000169-002

Pursuant to section 27 of the Organisation of Working Time Act, I find that the claim is well founded and award redress of €500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-002.

CA-0000169-003

Pursuant to section 8 of the Unfair Dismissals Act, I find that the claim is well founded and award redress of €11,000 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-003.

Dated:   28/03/2017