RTD171

The Complainant submitted a complaint to the Workplace Relations Commission in which he alleged that the Respondent failed to notify him of the provisions of the European Communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. No. 36/2012. In failing to do so he claims that the Respondent infringed his entitlements under regulation 11 thereof.

The complaint was investigated by an Adjudication Officer who decided that it was well founded but in light of the subsequent steps taken by the Respondent made no award of compensation. The Complainant appealed that decision to this Court. The decision was issued on 15 February 2017, was appealed to this Court on 22 March 2017 and came on for hearing on 4 May 2017.

When the matter came before the Court the Respondent admitted that it had not, at any period before the Complaint was submitted to the WRC informed the Complainant of the details of S.I. 36/2012. However it submitted that it had subsequent to the filing of the Complaint by the Complainant taken steps to ensure that all current and future employees are and or would be so notified.

The Complainant submits that his entitlement to notification of the existence and details of S.I. 36/2012 is an important employment protection measure to ensure that his safety and health at work is properly safeguarded both in his own interest and that of the general public. He submits that such an infringement of his rights cannot be protected if the Respondent is not required to make reparation for the infringement of his rights in this case.

The Law

• Regulation 11 of S.I. 36/2012 states

  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.

  Regulation 12 states

  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 an 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).

  Obligations on self-employed driver

  Regulation 13 states

  14. A mobile worker shall, at the request of his or her employer under Regulation 12(b), notify his or her employer in writing of time worked by the worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation for inclusion in the calculation of the mobile worker’s working time.

  Regulation 17 states

  17. (1) A person who fails to comply with these Regulations commits an offence.

  17. (1) A person who fails to comply with these Regulations commits an offence.

  (2) A person who causes, or purports to authorise, another person who is employed by that person or is under that person’s control to contravene these Regulations commits an offence.

  (3) In proceedings for an offence under paragraph (2) evidence that—

  (a) another person contravened the Regulation to which the proceedings relate, and

  (b) that other person was at the relevant time employed by, or under the control of, the defendant,

  is, until the contrary is shown, evidence that the defendant caused or purported to authorise that other person to contravene that Regulation.

  (4) A person guilty of an offence under these Regulations is liable—

  (a) on summary conviction, to a class A fine, or

  (b) on conviction on indictment, to a fine not exceeding €250,000.

  (5) Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a person being a director, manager, secretary or other similar officer of that body corporate or a person who was purporting to act in that capacity, that person shall also be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.

  (6) Proceedings for an offence under these Regulations may be brought and prosecuted summarily by the Road Safety Authority or a member of the Garda Síochána.

  (7) Nothing in paragraph (6) limits any other power conferred by law to prosecute an offence under these Regulations.

  Regulation 18 states

  18. (1) A mobile worker (or, in the case of a mobile worker who has not reached the age of 18 years, the mobile worker’s parent or guardian with his or her consent) or, with the consent of the mobile worker, a trade union of which the mobile worker is a member may present a complaint to a rights commissioner that the mobile worker’s employer has contravened Regulation 5, 8, 10, 11 or 12 in relation to the mobile worker.

  the mobile worker’s employer has contravened Regulation 5, 8, 10, 11 or 12 in relation to the mobile worker.

  (2) Where a complaint is presented under subparagraph (1) the rights commissioner shall—

  (a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

  (b) give a decision in writing in relation to it, and

  (c) communicate the decision to the parties concerned.

  (3) A decision of a rights commissioner under paragraph (2) shall do one or more of the following:

  (a) declare that the complaint was or was not well founded;

  (b) require the employer to comply with the provisions of these Regulations that have been contravened;

  (c) require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );

  and the references in clause (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

These regulations impose serious obligations on both workers and employers. A failure to comply with such obligations can give rise to an offence under regulation 17(1) which carries on conviction a fine of up to €250,000.

Section 11 places a clear obligation on an employer to notify a mobile worker of the “provisions of these Regulations”. A failure to do so amounts to an offence under Regulation 17(1).

Quite separately it constitutes an infringements of the Complainant’s rights which can give rise to an award of compensation of up to two years’ salary.

Such an infringement can have serious consequences for both the Claimant and the Respondent and cannot be treated as something of little consequence for either side.

Accordingly the Court finds that the Adjudication Officer erred in failing to make any award to the Complainant for the infringement involved.

The Court notes however that the Respondent has taken steps to ensure that the infringement will not continue into the future. This is a mitigating factor that the Court has taken into consideration in deciding on the level of compensation to award the Complainant in this case.

Having taken all matters into account, the Court has decided to order the Respondent to pay the Complainant compensation in the sum of €1500 for the infringement of his rights under regulation 11 of S.I. No 36/2012

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
11 May 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.