Complainant

Respondent

Anonymised Parties

An Artic Truck Driver

A Transport Company

Representatives

Peninsula Group Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012812-007

27/07/2017

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

CA-00012812-009

27/07/2017

The Complainant claims that   he was expected to work in the region of 65 to 70 hours per week which is   more than the maximum permitted number of hours under the European   Communities (Road Transport)(Organisation of Working Time of Persons   Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No.   36/2012. The Complainant also claims that he seldom if ever had an   appropriate break or a rest period during the course of his employment with   the Respondent. The Respondent totally refutes the Complainant’s claims and   says that it is compliant with its obligations under the said Regulations.

The Complainant claims that   he was employed by the Respondent as a professional truck driver from   February 2016 until 8 May 2017.

The Complainant claims that   he worked on average 65 to 70 hours per week which is well in excess of the   maximum permitted number of hours during his time working with the   Respondent. It claims that there was no collective agreement in place and   therefore on the day of the hearing he selected the final 17 weeks of his   employment as the reference period for consideration.

The Complainant maintains   that he never got breaks or sufficient rest periods and was required to   report back to the Respondent during breaks and rest periods to inform it   where he was and the situation on his pickups and deliveries.

The Complainant maintains that   he felt frightened and intimidated while working with the Respondent and   accordingly he felt it was expected of him to get on with work as quickly as   possible and not raise any issues. This, he claims, included him having to   breach the working time Regulations in relation to breaks and rest periods, including   him carrying out a particular intervention where the truck is continually “shunted”   when he was loading or unloading it to circumvent the reading of the tachograph   records.

The Complainant did refer to   a particular incident which he claims that he was not happy about and he   informed the owners when he had to drive from Killybegs in Donegal back to   his base to get in line for the following morning.

He claims that when he was   waiting for a ship to arrive at the Port he would be expected to keep Mr. A,   the Respondent’s owner, continually informed by text message and this would require   him to check with the office personnel at the Port to get regular updates of   Ship arrivals. Accordingly, he claims he would end up working during his rest   periods.

The Complainant had not   sought records from the Respondent nor did he submit any records or other   evidence setting out his own working time, breaks and rest periods at the   Hearing.

The Complainant raised a   number of other matters, inter alia,   no paid overtime; no premium rate for working Saturday or overnight; money   deducted from his final pay for damage caused to a security barrier; a claim   that he was bullied by another external driver, which he claims he reported   to the Respondent but nothing was done about it.

The Respondent is an Irish company   that operates a transport business and it accepts that the Complainant was   employed with it as an artic truck driver from February 2016 until 8 May   2017.

Contrary to the Complainants   claim, the Respondent claims that there was a collective agreement in place, and   the Respondent provided a copy of a signed copy of the Complainant’s written   terms and conditions of employment which makes reference to such an agreement.

The Respondent claims that   the Complainant had not indicated the reference period in his complaint form   to the Workplace Relations Commission where he claims that there were alleged   failures and breaches to the Regulations. Accordingly, the Respondent had   prepared documentation to cover a wider range of dates to identify a suitable   reference period as provided for in Regulation 4.

The Respondent claims that   the Complainant received road safety authority literature and training   regarding the correct usage of his tachograph, and it said it will rely on   these records to demonstrate that there were no breaches of the Regulations.

The Respondent refutes the   allegations and identified various records within its evidence to demonstrate   that the Complainant had not to work excessive hours and had not been without   breaks and rest periods.

The Respondent’s evidence is   that the Complainant received his entitlements including his annual leave   entitlements, and based on the final 26 week period prior to cessation of   employment there were no breaches to hours of work, which it claims averages   to just over 43 hours per week and no breaches to breaks or rest periods.

The Respondent maintains   that it never told the Complainant to manipulate the tachographs records and   no evidence was adduced to support such a claim.

The Respondent claims that   the Complainant was never asked to keep in regular constant contact with Mr.   A., when collecting from the Port; that it had 14 drivers on the road at the   time and if Mr. A was to be regularly interrupted by drivers continually updating   him as to where they were every few minutes of the day he would not be able   to get any work done. It claims that all drivers were asked to send a text message   when they were loaded, nothing more was expected. Mr. A said that the drivers   were paid a daily rate and not by load. Therefore, there was no monetary gain   for the drivers to collect and drop off multiple loads within a day.   Accordingly, it claims that there was no need for drivers to speed up   collections and deliveries.

The Respondent claims that   during the Complainant’s time working with it he was never afraid to put in   writing issues when he saw fit, and evidence was provided to support this statement.   However, never had the Complainant raised a grievance about rest periods,   breaks or having to work excessive hours. The Respondent respectfully   submitted that if there was a problem in relation to these specific issues,   it was pretty sure the Complainant would not be afraid to identify the problem   and bring it to its attention. The Respondent also provided evidence that on   the Complainant’s letter of resignation he said that he would be moving on to   other employment “to better himself”;   he thanked the Respondent for the opportunity to work there and expressed   nothing but positives from his time working with it.

The Respondent outlined that   on his last day of work he caused considerable damage to a security barrier   and he was made pay in the region of €700 for that damage.

The Relevant Law

This is a complaint under section 18 of S.I. No.   36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport   Activities) Regulations 2012(the Regulations).

Regulation 5 - Working Time

The Complainant submits that   the Respondent infringed Regulation 5. It states,

•   5. (1) Subject to any   derogation under Article 8 of the Directive, a person performing mobile road   transport activities shall not exceed—

(a) a working   time of more than 60 hours in a week,

(b) an average   weekly working time of 48 hours in any reference period.

(2) The   average weekly working time of a person during a reference period shall be   determined according to the formula—

(A+B)/C

where—

A is the   aggregate number of hours comprised in that person’s working time during the   course of the reference period;

B is the   number of excluded hours during the reference period; and

C is the   number of weeks in the reference period.

(3) In this   Regulation “excluded hours” means hours comprised in—

(a) any period   of annual leave taken by the person in accordance with the Organisation of Working Time Act 1997 (No. 20 of 1997) (save so much of it as   exceeds the minimum period of annual leave required by that Act to be granted   to the mobile worker),

(b) any   absences from work by the person authorised under the   Maternity Protection Act 1994 (No. 34 of 1994), the Adoptive Leave Act 1995   (No. 2 of 1995), the Parental Leave Act 1998 (No. 30 of 1998), or the Carer’s Leave Act 2001 (No. 19 of 2001), and

(c) any period   of sick leave taken by the person.

(4) For the   purposes of paragraph (2), the number of hours in a whole day shall be 8 and   the number of hours in a whole week shall be 48.

(5) An   employer shall ensure that the limits specified in paragraph (1) are complied   with in the case of each mobile worker employed by him or her.

Regulation 6 -   Periods of availability, break times and rest times

6. Periods of availability, break times and rest times shall not be included in the calculation of working time.

Regulation 8 -   Breaks for work

8. (1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the   working time of a person performing mobile road transport activities exceeds   6 consecutive hours but does not exceed 9 consecutive hours, the person shall   be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the   working time of a person performing mobile road transport activities exceeds   9 consecutive hours, the person shall be entitled to a break lasting at least   45 minutes interrupting that time.

(4) Each break   may be made up of separate periods of not less than 15 minutes each.

(5) An   employer shall ensure that this Regulation is complied with in the case of   each mobile worker employed by him or her.

Section 12 - 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 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).

Findings

At the outset I should note   that the Complainant had indicated that he raised various complaints against   the Respondent with the Workplace Relations Commission and it was not until   late in the day did he fully realise that the   cases here for consideration were to be investigated by way of a hearing with   an Adjudication Officer.

The Complainant had not previously   indicated the reference period when the alleged infringements had occurred.   The Complainant had not sought details of records from the Respondent ahead   of the hearing. The Complainant when pressed to indicate the reference period   to be reviewed for possible infringements, selected the final 17 weeks of his   employment. The Complainant maintained that there was no collective agreement   in place and when it was put to him that there was a collective agreement in   place that was set out in signed documentation by him he did not offer   alternative evidence to suggest otherwise.

The Complainant’s case is heavily   dependent on general statements of breaches of the Regulations and very much   devoid of specific instances and specific dates in relation to the complaints   that are before me for consideration. There were better and more specific   accounts of other events of his time working with the Respondent, but these events   were not related to the complaints before me. There were no records or notes   kept by the Complainant of instances of excessive hours of work and breaches   to breaks or rest periods, or at least they were not put before me in   evidence.

There was at best little non-specific   anecdotal evidence of a culture of excessive working hours by all drivers and   a lack of breaks and rest periods due to pressure of work and the fear to   report breaches to the Respondent. I heard from the Complainant that abuses   of working time and rest periods were just expected of the drivers. Whereas   the Respondent was clear that no one was ever asked to abuse such important   health and safety requirements. I note that there were no records adduced of   these alleged abuses being raised with the Respondent by the Complainant or   any other driver heretofore. However, I was presented with other events where   the Complainant did raise concerns with the Respondent and happened to put   them in writing. Again, I should say that the particulars of those events have   nothing to do with the complaints before me for consideration.

There was a reference to a   trip to Killybegs, but no date specified other than references to a certain   television programme that would have aired around that time. I am satisfied that   it is for the Complainant to make his own case.

It is well established that each   case can only be decided upon based on its own merits and facts. In matters such   as presented here, it is clear that there exists a high level of independence   afforded by an employer to an employee in relation to managing his working   time. However, this of course does not mean handing over that responsibility from   the employer to the employee. This has to be carefully balanced and ultimately   it is the employer’s responsibility to ensure that the provisions of these Regulations   are complied with regardless.

Before that assessment can   be carried out it is clear that the burden of proof rests with the   Complainant to establish a prima facie case. When assessing the burden of   proof I am mindful that such matters were considered in a similar case in   relation to the Organisation of Working Time Act 1997   where the Labour Court decision of Circus   Gerbola Limited -v- El Mostafa Chtabbou MWD 1211, relied upon Jakonis Antanas   -v- Nolan Transport (2011) 22 ELR 311 where it stated that:

“In Jakonis Antanas v Nolan Transport this Court held as follows in   relation to the application of Section 25(4) of the Organisation of Working Time Act 1997, which is similarly   worded to Section 22(3) of the Act: -

The burden on a respondent of proving compliance with the Act arises   in proceedings in which a complaint of non-compliance is made. It is clear   from Section 27(2) of the Act that the jurisdiction of the Rights   Commissioner is invoked by an aggrieved worker, or his or her trade union, by   presenting a complaint to a Rights Commissioner that his or her employer has   contravened a relevant provision of the Act in relation to him or her. The   subsection goes on to provide that where a complaint is made the Rights   Commissioner shall give the parties an opportunity to be heard and to present   to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce   such evidence as is available to support a stateable case of non-compliance with   a relevant provision of the Act. It seems to the Court that, as a matter of   basic fairness, the claimant should be required to do so with sufficient   particularity as to allow the respondent to know, in broad terms, the nature   of the complaint and the case which they are expected to meet. As was pointed   out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963]   A.C. 386 an evidential burden is satisfied where the evidence adduced is   sufficient to “suggest a reasonable possibility”.

The respondent should then be called upon to put the records required   by Section 25(1) of the Act in evidence showing compliance with the relevant   provision in issue. If records in the prescribed form are produced the legal   burden will be on the claimant to satisfy the Rights Commissioner, or the   Court on appeal, that the records ought not to be accepted as evidence of   compliance. Thus the claimant will bear both the evidential and the legal   burden of proving, on the balance of probabilities, that his or her rights   under the Act were contravened in the manner alleged. If the claimant fails   to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the   claimant has satisfied the evidential burden which he or she bears, it will   be for the respondent to establish on credible evidence that the relevant   provision was complied with in relation to the claimant. The respondent will   thus be required to carry the legal burden of proving, on the balance of   probabilities, that the Act was not contravened in the manner alleged by the   claimant. If the respondent fails to discharge that burden the claimant will   succeed.”

Accordingly, when applying this test to the facts   in the case before me, I am not satisfied that the Complainant has overcome   the necessary hurdle of providing sufficient evidence to support a “stateable   case of non-compliance” with Regulation 5 and 8 of the Regulations, sufficient   to “suggest a reasonable possibility” of non-compliance with the Regulation.

In particular, I find it somewhat   unbelievable that the Complainant failed to raise his concerns with the   Respondent, and him claiming that he felt intimidated and afraid to do so,   when it was clear he already raised other concerns without any apparent   negativity from the Respondent.

I find it equally incredible   that should the Complainant have felt so aggrieved with the working hours and   breaks that he would have sent a final letter of thanks and appreciation to   his employer just weeks before he lodged his complaint with the Workplace   Relations Commission. To me this demonstrates that there was a substantial   amount of amicability between the parties during the Complainants time   working with the Respondent. I note that things soured on the last day of his   work where damage was caused to a security barrier and the Complainant was blamed   and was charged for this damage. This event happened after the alleged   incidents of breaches to the Regulations and just after the sending of a   letter of thanks by the Complainant to the Respondent.

CA-00012812-007  

Taking all of   the evidence into account I find that the Complainant has not established a   prima facie case and therefore I determine that the complaint under   Regulation 5 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport   Activities) Regulations 2012 - S.I. No. 36/2012 is not well founded.

CA-00012812-009

Taking all of   the evidence into account I find that the Complainant has not established a   prima facie case and therefore I determine that the complaint under   Regulation 8 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport   Activities) Regulations 2012 - S.I. No. 36/2012 is not well founded.

CA-00012812-007   -

I find that the complaint is   not well founded and fails.

CA-00012812-009    -

I find that the complaint is   not well founded and fails.

Truck driver - excessive   hours of work and breaches to breaks or rest periods - failed to establish a prima   facie case