ADJ-00002722

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002722

Parties: 

Complaint:                    

Date of Adjudication Hearing: 17 October, 2016 and 10 January, 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 24 of the National Minimum Wage Act, 2000,Section 27 of the Organisation of Working Time Act , 1997,Section 7 of the Terms of Employment ( Information) Act,1994 and Regulation 18 of the European Communities ( Road Transport ) Organisation of Working Time of persons performing Mobile Road Transport Activities )Regulations 2012-S.I 36/2012 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.

Background:

Summary of Complainant’s Case:

The complainant commenced work as a Lorry Driver in September, 2010. He received a contract of employment some four years later in 2014.The complainant usually collected his truck at the Company Depot at the commencement of his night shift .He received instructions on the run by text per shift and he returned the Truck to the depot and handed the dockets to the office .He had little face to face contact with his employer, Mr E or Ms O, Office Manager, due to his night time working.
He worked on average a 50-60 hour week over 4 days until May 2015, when he sought a reduction to 35-40 hrs over 3 days, following a Tachograph issue. His hours were further reduced, without consultation to 25-27 a short time later .
TACHOGRAPH :
Each truck was fitted with a tachograph to record details of the journeys .The driver must be able to produce their driver card and tachograph print outs for the current and previous 28 days.
On 23 December, 2015 , having raised work issues unsuccessfully with the respondent ,the complainant approached his representatives for assistance and wrote a letter to his employer seeking
1. Annual Leave outstanding from July 1, 2015 following a reduction in working week to 25-27 hours.
2.Training
3 Payment to Wages to co-incide with Friday
4 Application for an increase in hours
There was no response to this letter and the Complainants Representatives submitted a follow up letter on 25 January, 2016 , claiming
1 10 days paid annual leave.
2 Shortfall in wages arising from 2010 based on the minimum hourly rate €8.65 and €9.15 from January 1, 2016.
3. €105 re-imbursement for health and safety equipment .Training.
4 Friday Pay day
5 Application to increase hours to 35-40 per week over 4 days.
6 Request for a Statement outlining the calculation of the complainant’s average hourly pay up to the date of the letter.
The respondent replied to the complainant on 27 January, 2016.
1 The annual leave was disputed on the basis that 50-56 hours claimed was not worked per week. The complainant was alleged to be working elsewhere .The complainant was invited to submit the list of holidays owed.
2 The shortfall in hours worked and wages was disputed. The working shift was 8 to 9 hours .There was no breach of the Minimum Wage Act 2000,due to day rate paid in addition to subsistence .
3 Safety boots could be secured via the respondent and there was no refund facility for items bought on an individual basis .Training was planned for 2016.
4Wages are paid on Fridays
5 The respondent sought confirmation whether the complainant was free to take up additional work given his commitments to other employers.
The respondent then sought some assurances from the complainant on
1 Requested a return of a contract of employment issued on 5 March, 2014.
2 A request to submit Tachograph records
3 The respondent commented on some unexplained absences by the complainant and issued a verbal warning to him.
4 A report that an unnamed member of staff had complained the complainant for verbal abuse and intimidation.
The complainant’s representatives sought a copy of the complainants employment file under Data Protection Legislation and in the absence of a response, the complaints were lodged with the WRC on April 12, 2016.
Arguments :
CA-00003797-001: National Minimum Wage Act, 2000.
The complainant submitted that his request on 23 December, 2015 and 25 January, 2016 for a Statement outlining the calculation of his average hourly pay had gone unanswered.
The complainant submitted that he commenced work at 21.00 hrs on Monday and returned back on Tuesday at 15.00hrs.This constituted a wage of €6.05 per hour .His gross pay minus subsistence( of €134) was €333.07 for four days . The complainant submitted that this was the practice up to 11 May, 2015, when he left his employment .
On 20 May, 2015, the complainant had an issue with The Road Safety Authority, where he was stopped and warned about driving over hours .He reduced his working hours to 35-40 hrs over 3 days. This involved
Departure from Yard : 21.00hrs and return next day at 12.00 noon ( 15 hours)
01.15 hrs and return same day at 11.00 hrs ( 10 hours) 25 Hours in total
This equated with €177.30 weekly wage and €7.09 per hour and the complainant submitted that there was a shortfall of €1.53 per hour from June 2015 –December 31, 2015 and €2.06 per hour from January 2016 to date of claim.
Total Claimed €32,425.60
The complainant relied on Section 14 of the National Minimum Wage Act, 2000.
During cross examination ,the complainant confirmed that he understood that he was paid for breaks .He also confirmed that an 8 hr day was very rare indeed
During the course of the two day hearing, the respondent presented documentation on the hours of work recorded by the complainant. The complainant was given an extension in time post hearing to consider these records .The complainant presented a revised claim under the Legislation at €9,293.24 as constituting the shortfall in the hours worked and the deficit in the Minimum wage earned by the complainant during the lifetime of the contract of employment of September 2010 to May 2016.

Summary of Respondent’s Case:

The respondent is a member of the Irish Road Haulage Association .This sector is highly regulated. The tachograph has been meticulously maintained.
The complainant worked for the respondent from 13 September, 2010 to 11 May, 2016.He worked 2 days per week , at his own request from 1 July , 2015
The respondent raised some jurisdictional issues on time limits associated with the submitted claims and contended that duplication arose .They submitted :
1 Relevant Period covering the claims under Organisation of Working Time Act, 1997 and National Minimum Wages, 2000 should be 13 October, 2015 to 12 April, 2016, i.e. the date the claim was lodged.
2 The Claim under S.I 36/2012 was referred on 6 September, 2016 and the cognisable period covered 7 March to 11 May, 2016.
The respondent submitted that the complainant had not relied on the reasonable cause argument under Section 41(8) of the Workplace Relations Act, 2015.
Arguments :
1. CA-00003979-001 National Minimum Wage Act complaint
The respondent disputed the claim .The respondent contended at the outset of the hearing that the complainant was paid a weekly wage of €177.30 and generally did not work more than 20 hours per week and accordingly was paid the minimum wage .The complainant was required to use a tachograph to track his hours and the respondent had a vehicle GPS tracking system also.
The respondent submitted that the complainant had not specified a particular period encompassed by the claim and the claim was invalid. The respondent also submitted that the Workplace Relations Act 2015 provided for a limitation period where the dispute cannot relate back further than 6 months. The respondent furnished the complainant with his entire Personnel File in the adjournment period of both hearings.
On the second day of hearing in January 2017, the respondent made an extensive submission on the summary of hours actually worked by the complainant during the period of 12 October 2015 to 11 May 2016.This took account of
1 Spread Hours ( the hours of the assignment )
2 Driving Time
3 Uploading time
4 Break time
These documents were sourced from both the Tachograph and the Satellite measurement system and were prepared by the company accountant. The respondent submitted that the records demonstrated :
2015 Shortfall in Minimum Wage of €157.68
2016 Shortfall in Minimum wage of €251.33 TOTAL =€ 409.01
The respondent accepted these sums were owed to the complainant.
The respondent submitted that the complainant had not worked 50 -60 hours per week prior to the RSA incident in June 2015. The respondent drew the attention of the hearing to an agreement reached following a protracted period of dispute in relation to unpaid holidays, which concluded in 2015. The respondent confirmed that the complainant agreed to a daily rate of
€88.65 per day worked
€33.61 subsistence
€102.83 per annual leave day, without subsistence.
The Owner gave evidence that the company was incorporated in 2015 .He submitted that the work was time sensitive as the loads consisted of perishable goods .He pointed to one discrepancy around October 19 , where work was being completed on a battery , but stood over the accuracy of the calculations presented on the second day of hearing . The complainant had not sought him out to complain about his wages , neither did he raise the matter of minimum wage .The complainants runs were frequently 8 hours and shorter than his colleagues 12 hour runs .
During cross examination, the Owner confirmed that he understood that the subsistence rate was properly incorporated into the daily rate of pay .

Findings and Conclusions:

I have given careful consideration to the submissions received from both parties
Section 23 of the National Minimum Wage Act, 2000 entitles an employee to request from his employer a written statement of the employee's average hourly rate of pay during any pay reference period falling within the 12 month period immediately preceding the request. The employer is required to reply to any such request within four weeks of receiving it. The Minister described this section as having been designed
“To provide a structure that allows any potential dispute to be resolved speedily between an employee and an employer”.
The section does not specify a statutory form for compliance with its provisions. Accordingly, a letter to the employer, pointing out that the complainant considered he was entitled to a dated payslip with a record of how much he was being paid per hour, met the statutory requirements: Caraway v Vacas MWD 13/2013.
In the instant case, the complainant first placed the respondent on notice that he was seeking a statement “outlining the calculation of the average hourly pay up to the date of this letter “ on 23 December 2015.
He sought back money for shortfall in wages from 2010 to date .In the absence of a response from the respondent, this request was repeated on 25 January, 2016 by the complainant’s representative .In the absence of a response, the matter was processed through as a complaint before the WRC on April 12, 2016.
I noted that the submitted statements in this regard were lacking in clarity and I reviewed these statements to check their compliance with the Complainants obligations under Section 23 of the Act.
. Employee entitled to statement of average hourly rate of pay for pay reference period.
23
23.—(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.
I am satisfied, on the evidence before me that the complainant asked for a statement in accordance with Section 23 of the Act. I am satisfied that the context and background to the actual framing of the request for the statement in both letters reflected his stated intention and the respondent could not have been in any doubt of the question asked of the company . I asked the respondent to explain the vacuum in a response to both of these letters and an explanation was not forthcoming.
The parties were in clear dispute on the hours worked during the life time of the contract. This was not aided by the delayed issue of terms of employment on 5 March 2014 which was then silent on the number of hours to be worked per week .There was a provision for a variation in hours due to a fluctuation in work demands .
I established that the parties had stopped speaking to each other by the time this claim was lodged and the grievance procedure had not been activated .I noted a certain level of residual impatience between the parties .
I had difficulty in securing objective records of the time worked by the complainant for the purposes of the Act. On the first day of hearing , the complainant and his representatives made several references to a “ notebook “ that served as a depository of records , but this was not submitted in evidence . The respondent submitted an extensive “Time analysis Report “dated 12 October 2015 to 11 May 2016, the period referred by the respondent as the central period for the claim.
The complainant got an extended opportunity to consider this document both through a break during the hearing and a 10 day period post hearing. The claim was revised to €9,293.24 in respect of an average 11 working days during the lifetime of the contract.
The respondent took issue with this interpretation and reaffirmed that Section 26 permits a 6 month long period of dispute and not the 6 years claimed by the complainant.
I considered both of these submissions and I find that I must resolve the conflict in favour of the complainant on time limits. I have provision to consider the claim set out by the complainant in respect of the period to which the dispute relates in accordance with Section 26 of the Act.
I have found some guidance on how a similar issue was addressed by the Labour Court in O Leary International ltd V Vicktor Gurkovs MWA/12/24 where the parties were in similar dispute regarding records , notwithstanding that the contractual terms differed in both cases .
The parties agreed to a €88.65 rate per working day in 2014, with an add on subsistence rate of €33.61The respondent submitted that these two payments taken together amounted to a rate higher than the minimum wage .The complainant did not have set hours mentioned in his terms of employment .It was agreed between the parties that the complainant reduced his hours in July 2015 to two working days per week.
There is no provision for an inclusion of a subsistence payment in the calculation of the minimum wage paid.
Having considered the respondent time analysis reports of the last 6 months of his employment, the complainant presented a revised claim post hearing .The complainant submitted that he worked an average 11 hour working day and the shortfall in €88.65 per day amounted to a composite rate of €9,293.24 covering the submitted 6 year dispute period. This was a significant reduction on the first claim, but presented as a significant variation on the respondents acknowledged €409.01 covering the last six months. I did not receive any records to support this revised claim and the revised claim was disputed by the respondent.
I have found that the respondent incorporated a paid unloading time in their records. This meant that the complainant received payment for driving and unloading time, but not for breaks.
While I was presented with a large amount of single sheeted copied tachograph records by the complainant, these were not co-ordinated into a single cell document, outside the Time Analysis Reports from October 2015 –May 2016 furnished by the respondent.
I have also found a record of extended break times, which were not addressed in the revised document submitted by the complainant on 19 January, 2017. The respondent made very strident arguments that the complainant persistently exaggerated his hours worked throughout the lifetime of his contract.
I could not establish that the national Minimum wage was referenced in either the terms of employment or the pay slips furnished. The respondent did not demonstrate that adherence to the legislation was a consideration in this case. I did not hear any evidence on linkage of the tachograph or satellite records to any adherence to the Act.
I have had to consider the vacuum in records available to me during the period claimed .I has also considered the respondent consistent submission on the exaggerated claim. I did review the records on salary paid from 2014 to end of contract and found variable wages paid until the complainants hours reduced in July 2015.I also noted that subsistence was paid mostly at a 3 day rate per week until June 2015 when it reduced to two days.
I have found that in the absence of objective records governing the period of the claim and given the respondent acknowledgement on the shortfall in the minimum wage from October 2015, I find that the complaint is well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 and Section 24 of the National Minimum Wage Act, 2000 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions.
I have found that the respondent has breached Section 14 of the Act. I have considered both the estimation of the complainant table of loss, January 2017 and the evidence given at the hearing that the respondent identified a €409.01 shortfall .I order the respondent to pay the complainant arrears to the amount of €4,500 encompassing the period September 2010 to May 2016 within 4 weeks of this decision.

2 CA-00003797-002 Annual Leave

Complainant Submission:

The complainant submitted that he was due 10 days annual leave from 2015.He applied for the leave for 26 and 27 of October 2015 and was refused. He carried over two day’s annual leave from 2014. He concluded an agreement with the respondent in 2014 that he would receive €102.83 payment for annual leave. The complainant understood that his working hours had decreased but sought access to 20 days per years on foot of the number of hours worked.

Respondent submission

The respondent rejected the claim and referred to the statutory limitation period of six months for this claim. The respondent submitted records of 10 annual leave taken by the complainant in 2015 .The respondent referred to 17 days leave taken by the complainant which resulted in an overpayment of €814.37. The respondent applied the pro rata principle to the complainant’s hours post his reduction in hours.

The respondent also contended that the complainant was invited to set out his claim before his employer on 27 January , 2016, but failed to do so .

Decision:

Section 41 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 27 of the Organisation of the Working Time Act, 1997 requires me to make a decision in this case.

I have considered both parties submissions .It was accepted by the parties that a long running dispute regarding holidays was settled by agreement and paid in April 2015.I have considered the period of time allowed to me in accordance with Section 41(6) of the Workplace Relations Act, 2015,as 13 October 2015 to 11 April 2016.

The complainant gave evidence that the concept of pro rata was not explained to him and he understood that he was entitled to 20 days annual leave for the hours he worked which were in excess of 1,365.

The respondent referred to the statement of terms of employment which stated an entitlement to 20 days per full year worked which equates with 1.66 day per month worked.

The complainant did not submit a record of working hours for the purposes of this claim. I have relied on the records as furnished by the respondent as cross referenced on the pay slips and find, based on the pro rata rule that the complaint is not well founded .

3 CA-00003797-003 Public Holidays

Complainant Submission:

The complainant submitted that he had never received any additional pay or time off for public holidays, the most recent being Easter Monday 2016.

Respondent Submission: The complainant was paid for all public holidays at the agreed rate of €102.83

Decision:

Section 41 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 27 of the Organisation of Working Time Act 1997 requires me to make a decision in this case.

I have considered the records as submitted by the parties and I note that the respondent has recorded payment for public holidays at the time claimed by the complainant, in particular on

1 and 15 April, 20 May 2016 at the rate agreed of €102.83

I find that this complaint is not well founded.

4. CA-00003797-004 and CA -00003797-07 annual leave

These complainant are framed in an identical fashion to CA-00003797-002

I find that the complaints have already been considered and are not well founded.

5 CA-00003797-009 Public Holidays

This complaint is framed in an identical fashion to CA-00003797-003. I have already considered this complaint and found it to be not well founded.

10 CA-00003797-010 Terms of Employment

Complainant Submission:

The complainant submitted that his hours were reduced to 35 -40 hrs (3 days) by the respondent in June 2015. He contended that his hours were further reduced without his permission at the end of June to 25 to 27 hrs per week. He applied to increase his hours on 23 December, 2015 but was unsuccessful. He sought compensation of four weeks pay given this unilateral action.

Respondent Submission:

The respondent submitted that the claim was out of time as the complaint referred to June 2015 which is outside the limitation period of 6 months .The respondent submitted that the complainant had, at any rate initiated the request for a reduction in hours himself .

Decision:

Section 41 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 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in the case.

The complainant has submitted that unilateral changes were applied to his terms of employment in June 2015, which he sought to reverse in December 2015. The Terms of Employment Act, 1994 outlines the obligations of an employer in the face of changes made to particulars of the statement of terms of employment.

Section 5 Notificationof changes

5.— (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 SS, 3,4 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—

(A) 1 month after the change takes effect, or

(b) 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.

Section 41(6) Workplace Relations Act, 1997 provides that

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I note that the complainant had not activated the grievance procedure in the aftermath of the reduction in his hours in 2015 .This may have been a good starting point.

Given that the claim was lodged before the WRC on April 12, 2016, I must find that I lack the jurisdiction to process this claim as it is statute barred.

11. CA-00003797-011

Complainant Submission:

The complainant submitted that he worked over 10 hours in a 24 hour period .The hours were set by his employer .When he was stopped by the Road Safety Authority on 20 May 2015 they took tachographs and warned him about driving over hours .The respondent dispute the records when he sought to raise the issue, but his hours were then decreased to 35-40 hours over 3 days, and further reduced to 25 to 27 hours.

The complainant contended that he had been penalised for seeking to work within the legal limit

Respondent Submission:

The respondent submitted that the Organisation of Working Time Act provisions regarding daily breaks, rest breaks, weekly working hours and nightly working hours do not apply to road transport workers S.I. 342 of 2015 and argued that the claim was invalid in respect of excessive night hours worked.

Decision:

Section 41 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 27 of the Organisation of Working Time Act, 1997 requires me to make a decision in this case.

Statutory Instrument 342/2015 removed mobile transport workers as defined in EC Directive 2002/15/EC from the provisions of SS.11, 12, 13, 15 and 16 of the Act. Section 16 refers to provisions of the Act governing night workers .I find that I lack the jurisdiction to hear this complaint and find that the complaint is not well founded.

12.CA-00006834-01

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

Complainant Submission:

The complainant submitted this complaint on 6 September, 2016 and contended that the complainant had been a night worker and worked over 10 hours in a 24 hour period. These hours were set by his employer.

The complainant submitted that Statutory Instrument 26/2012 had been breached in relation to Night Work, retention of records. He submitted that the employer did not furnish records. The complainant submitted that he was never asked for records of his breaks taken nor had he ever been furnished with the Working Hours Regulations in SI 36/2012.

Respondent Submission:

The respondent accepted that Night work was done between the hours of 12 midnight and 4 am.The respondents accepted that if an employee is engaged for any time during the night period that the employee is not permitted to work more than 10 hours in a 24 hour period. The respondent sought a demonstration of the alleged breaches of the Site respondent relied of a cognisable period of 6 months for the lifetime of the claim, 7 March 2016 to May 11, 2016 and submitted that they had provided all records sought by the complainant In February 2016. The respondent disputed the claim

The Operations Transport Manager gave evidence that the regulations were contained in the Drivers Manual on show in the staff canteen. It was her understanding that when the complainant returned to the yard between 11 am and 2pm, he visited the canteen. She confirmed that all drivers had been verbally informed about the regulations.

The respondent submitted that the complainant had himself acknowledged that he took extended breaks while working.

The Owner gave evidence on the evolution of the Satellite tracking devise and the precision contained in the system in preference to the Tachograph system.

Decision:

Section 41 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.Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 requires that I make a decision in the case.

Statutory Instrument 36/2012: 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.

Obligation to notify mobile worker

11. An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.

Obligations on employer

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

(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

(c) include time worked for another employer in the calculation of the mobile worker’s working time;

(d) keep records which are adequate to show that these Regulations are being complied with;

(e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;

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

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

(h) Provide to the mobile worker or to enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

I have considered both parties submissions in this claim. The question of the definition of working time in accordance with the regulations was disputed by the parties at hearing .The complainant considered the records submitted by the respondent at the January hearing and submitted a revised claim under these regulations over a 104 week period .This claim took account of the definition of working time in accordance with Regulation 6 which exempts periods of availability, break times and rest periods from the calculation.
Section 41(6) of the Workplace Relations Act, 2015 permits me in the absence of an argument on reasonable cause to consider a cognisable period of 6 months here that is March 8 2016 to May 11, 2016.
I am satisfied that based on the evidence of the Operations Transport Manager, the provisions of the Regulations were made known to the complainant. I am also satisfied that he was provided with records governing the cognisable period of the claim via his personnel file and the respondent submissions at hearing .I appreciate that the requests for records was not made before 10 February, 2016. This employment was not covered by a Collective Agreement.
On the basis of the evidence presented I find that that this aspect of the complaint to be not well founded.
I have also considered the complainant submission that he regularly worked in excess of a 10 hr working night .I have examined the records submitted via tachograph and satellite tools .I found that one of each of the daily working record referred to night work from March 2016 onwards, the other referred to day time working . The complainant averaged his working hours as 11 hrs per day in breach of the Regulations.
This was disputed by the Respondent who contended that the Respondent records had demonstrated that this was not the case.
I can understand that the complainant understood, for example that he was away from his base for 12.5 hrs on the night of 18 April 2016 .This time was recorded by the respondent as a cumulative total with 20 April 2016 ( day working) of 1211 minutes ( 20.18 hrs) .The record demonstrated a
9.31 driving time and .55 hr uploading time on 18 April 2016 Night Time
8.38 driving time and .55 hrs uploading time on 20 April 2016 Day Time
I found that the respondent had not identified a system to record working time activity which distinguished night time working from day time working for the purposes of the Section 12(d) of the Regulations.
I found further such inconsistent instances contained in the records of Tachograph records of
8 March 2016 4
4 and 6 April, 2016
11 and 13 April 2016
25 April 2016
2 May 2016
9 May, 2016
I understand that the Labour Court has commented in O Leary on the difficulties surrounding identification of break time so far away from base where the worker may not be free to pursue his own interests .I have found an overlap in this case .
I have found that the complaint is well founded for the cognisable period of the claim and I award €1,000.00 in compensation for the breach of Section 10 of the Regulations
I would also recommend that the respondent reviews the company records maintained under the Regulations to establish a readily recognisable and mutually understood system for recording time spent on Night Work in accordance with the Regulations and this revised system to be discussed and agreed with the workforce.

Dated: 17 May 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words

National Minimum Wage
SI 36/2012 Road Transport Sector, Night Time Working.