ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-0000347

Complaint(s):

Date of Adjudication Hearing: 11/01/2017

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Consolidation of Claims

It was agreed that ADJ 341 - would stand as a standard for ADJ-00000347 and ADJ-00000078 – all three parties present at the hearing.

The case was heard over two days of hearings the 9^th March 2016 and the 11^th January 2017. During this period an earlier resumed hearing date was postponed due to the unavailability of the parties. During the interim period supplemental submissions were received from the parties.

It was later agreed among the parties that following the publication of Adj 341 parallel decisions would be issued for Adj 347 and Adj 078. If there were any nuances to be highlighted between the cases it was open to the parties to advise the AO accordingly. No such advices were received as regards this case Adj 347.

Attendance at Hearing:

Workplace Relations Commission Adjudication Officer: Michael McEntee

1:        Adjudicator Summary of Complainant’s Submission and Presentation:

2:        Adjudicator Summary of Respondent’s Submission and Presentation:

A detailed written submission was received from the Respondent prior to the hearing of the 9^th March and supported by supplemental submissions prior to the second hearing of the 11^th January 2017.

The Respondent refuted all the claims.

Key points made were that the Complainants had been paid the National Minimum Wage, were in keeping with the 48 Hour rule of the Working Time Act, were in keeping with the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and any breaches of Record keeping or Notification were of a purely minor or incidental technical nature.

3:        Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 and 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 and Section 7 of the Terms of Employment (Information) Act, 1994 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

4:        Issues for Decision:

Did breaches of the cited Acts and Statutory Instruments take place and if so what redress is warranted?

5:        Legislation involved and requirements of legislation:

Section 27 of the Organisation of Working Time Act, 1997 and 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 and section 7 of the Terms of Employment (Information) Act, 1994

6:        Time Limits of Complaints

This was a strongly contested point between the parties.

Section 41 of the Workplace Relations Act 2015 deals with the presentation of complaints and referral of disputes for those enactments listed in Part 1, Part 2 and Part 3 of Schedule 5 of the Act.

The complaints in this case pursuant to the Organisation of Working Time Act, 1997 and 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 and section 7 of the Terms of Employment (Information) Act, 1994 and the National Minimum Wage Act 2000 are comprehended by this Section.

Section 41(6) of the Workplace Relations Act , 2015 refers to a six month limitation period. The Complaints, other than the National Minimum Wage complaint referred to above, were referred to the WRC on the 25^th October 2015.

Accordingly the relevant reference period for these elements is 26^th April to 25^th October 2015.

As regards the Minimum Wage Act, 2000 the Complainant ended his employment in or about the 7^th August 2015. Accordingly the period in question is the 25^th April to the 17^th August 2015.

Section 41(8) of the Workplace Relations Act , 2015 allows for an extension of time for a further six months. No requests for an extension of time were made to me.

7:        Decision:

Organisation of this case

Recognising that this case has multiple complaints I propose to address the case in order of Legislation referred to.

In many instances one or two key principles have to be decided and the decision on the dependent claims then becomes evident.

8:        Complainants under the Terms of Employment Information Act, 1994 / CA-00000422-002

(Although contained in a single Complaint reference no there were multiple elements to this single complaint.)

The Complainant, in his submissions, alleges breaches of section 3 of the Terms of Employment (Information) Act, 1994 and the Terms of Employment (Additional Information) Order 1998 SI 49 of 1998 and SI. 36 of 2012.

The sub claims can be particularised as follows

1. Section 3(c)         Proper identification of Place of Work
2. Section 3(g)        Information regarding rates of pay /calculation of same
3. Section 3(ga)      Provisions for Section 23 ( National Minimum Wage Act,2000) statements
4. Section 3(j)         T&C as regards Paid Annual leave Year. 
5. Section 3 (k)(1) Pension and PRSA options not provided.
6. Breach of Section 3(1) of the Terms of Employment (Additional Information) Order 1998 SI 49 of 1998.
7. Employee not notified of SI. 36 of 2012 as subsequently amended.

8:1      Decision

Overall comment: The Complaint received a very comprehensive contract of Employment on the 9^th of June 2007 which he signed. Copy presented in evidence.

This Contract addresses most, if not all of the Complaints above.

Point 1                 Place of Work – Section 3(c)

The Respondent is an International Haulage Company – the Contract states the place of work as “Ireland and Internationally in accordance with your Employers instruction” – to require otherwise for an International Haulage Company would not be reasonable.

This element of the claim is dismissed.

Point 2                  Information on Rates of Pay and calculation of same. Section 3 (g)

The Respondent admits to a minor technical breach here as when the 2007 Contract was being drafted he was not aware of the amendments to Section 3(1) (g) of the original Act (Terms of Employment Information Act, 1994) by the National Minimum Wage Act of 2000.

The breach is technical and refers to the inclusion of the phrase “Pay reference period for the National Minimum Wage”.

The Complainant suffered no loss. Redress in the value of € 100 Euro is awarded here.

Point 3                Provision for Requests for a Section 23 (National Minimum Wage Act, 2000) statement - Section 3(ga)

The Respondent admits to a technical breach here being unaware of the amendment to the original Terms of Information Act by the National Minimum Wage Act of 2000.

The breach is purely technical in a Contract of Employment.

The Complainant suffered no loss. Redress in the value of €100 Euro is awarded.

Point 4                  T&C as regards Paid leave. Section 3(j)

The Contract of Employment provides for this information.

Under the Terms of Employment Information Act, 1994 there is no breach.

There is no obligation under Section 3 of the Act of 1994 to specify that the annual leave year is from April to March. Rather Section 2 (the interpretation section) of the Organisation of Working Time Act, 1997 provides that the leave year is April to March but there is not a provision of the Act specifying this as a contravention.

However this complaint is brought under the Terms of Employment (Information) Act, 1994 and accordingly must relate to a breach of that Act.

I could not find this.

This element of the claim is dismissed.

Point 5                  Pension and PRSA options not provided Section 3 (k) (1)

The Contract of Employment at Page 2 Sick Pay and Pension Schemes provides details of the Company Policy of No Company Sick Pay and opportunities for membership of a PRSA scheme.

This element of the claim is dismissed.

Point 6                  Breach of Section 3(1) of the Terms of Employment (Additional Information) Order 1998 SI 49 of 1998. The relevant Section of the Order is quoted below.

This requires that an employer provide a statement in the contract of employment giving particulars of the times and duration of rest periods & breaks and that these are in accordance with sections 11,12, and 13 of the Organisation of Working Time Act, 1997

In the contract of Employment at Page One the Complainant is notified that the employment is governed by the Tachograph Regulations EC No 561/2006 and the Organisation of Working Time (exemption of Transport Activities) Regulations of 1988. This specifically exempts Section 11, 12, 13 of that Act.

The basis of the claim of a breach of Section 3 of SI49 of 1998 (quoted above) is accordingly not well founded and is dismissed.

Point 7                  Employee not notified of SI. 36 of 2012 as subsequently amended.

The Respondent gave evidence of providing all necessary briefings/training to employees which included references to S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

I found this element of the claim not well founded and I dismissed it.

8:2      Summary Finding CA-00000422-002

All elements of the Claim dismissed save for Breach of Section 3(g)-Redress of €100 & Breach of Section 3(ga) -Redress of €100

Total redress for breach of statutory rights equals €200.

9:        Complainants under Section 27 of the Organisation of Working Time Act, 1997

9:1 Summary Sheet. Claims and Findings/Decisions.

As an aid to considering the multiple complaints in this case I have summarised the findings/Decisions. Detailed arguments are set out in Sections 9:2 to Sections 10:2.

9:2      Detailed Arguments & findings.

CA-00000422-001 Public Holidays.

This claim is based on the contention that the Respondent did not pay the National Minimum Wage and accordingly did not pay the correct Public Holiday Premium.

This requires a discussion of the National Minimum Wage Element of the proceedings.

9:2:1  National Minimum Wage Discussion.

The nub of the Complainant’s case was that the Contract of employment provided for 48 hours work per week – The rate of pay quoted was € 348 –if divided by 48 this equated to € 7.25 – effectively €1.40 less than the then minimum wage of €8.65. –on a weekly basis this equated to a loss of €67.20 per week. Arrears of six (6) years equating to a lump sum of €20,966 was sought.

The Respondent pointed to the Contract of Employment which specified that a driver was required to work as determined by the Loading/Delivery Schedule and to “work up to 768 hours in a 16 week period excluding breaks”.

The employment was also governed by the Tachograph Regulations EC no. 561/2006. The evidence pointed to the fact that Outside of the Loading/Delivery schedules the Complainant’s time was at his own discretion. There was no strict contractual obligation to be on call or on standby or on the Respondents premises for the entire 786 hours.

“Working Hours” are referenced in Section 2 of the National Minimum Wage Act, 2000 and which provides for the meaning assigned to “Working Hours” in Section8

Working hours of employee for pay reference period.

8:         National Minimum Wage Act, 2000

Working hours of employee for pay reference period

8. —(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9, “working hours”, in relation to an employee in a pay reference period, means—

( a) the hours (including a part of an hour) of work of the employee as determined in accordance with—

(i) his or her contract of employment,

(ii) any collective agreement that relates to the employee,

(iii) any Registered Employment Agreement that relates to the employee,

(iv) any Employment Regulation Order that relates to the employee,

(v) any statement provided by the employee’s employer to the employee in accordance with section 3(1) of the Terms of Employment (Information) Act, 1994,

(vi) any notification by the employee’s employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

(vii) section 18 of the Organisation of Working Time Act, 1997 , or

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

or

( b) the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,

whichever, in any case, is the greater number of hours of work.

(2) “Working hours” under this section shall include—

( a) overtime,

( b) time spent travelling on official business, and

( c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

F9 [(ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer ’s leave under the Carer’s Leave Act, 2001, while laid-off, on strike or on ‘lock-out’, or time for which the employee is paid in lieu of notice, or ]

(iii) time spent on travelling between an employee’s place of residence and place of work and back.

The Respondent stated that the “Division by 48 hours” method of the Respondent is not provided for and has no basis in practice.

The Complainant evidenced, in support, the Labour Court in the O’Leary International Transport v Viktors Gurkovs. MWD 146. The Respondent disagreed with the interpretation being placed on MWD 146 specifically that in that case the Driver was subject to the clause “ will be expected to stay overnight on a regular basis in your vehicle” which restriction does not apply in this case.

The Complainant is under an “up to” clause whereas in MDW 146 the cause is “Will be”.

The recent decision of the Labour Court in Freshcut Food Services vKarpenko (MWD 171) is helpful here.

A relevant quote being set out below

As mentioned previously, Mr. Grogan is also relying on a determination of a previous division of this Court in O’Leary International Limited v Viktors GurkovsMWA/12/24. In that case, the Court stated, in reference to the National Minimum Wage Act of 2000: “That Act was enacted to establish a national minimum rate of pay which is expressed in terms of a rate applicable to every hour worked.” This is the nub of the matter in the within appeal: the Complainant worked 33.47 hours in the relevant pay reference period; he was paid an hourly rate in excess of the then national minimum wage in respect of “every hour worked”. The determination of this Court in O’Leary Internationalis not authority for the claim being advanced on behalf of the Complainant i.e. that he is entitled to be remunerated for hours he did not and was not required to work. It is authority for the proposition advanced on behalf of the Respondent in the within appeal to the effect that the Act provides that the Complainant is entitled to be remunerated at the applicable national minimum wage for the hours he actually worked.

In the case in hand the Complainant was “required to work up to 768 hours in any 16 week period, excluding breaks”. If work up to 768 hours did not materialise the “surplus” was at the Complainants discretion how to utilise. There was no requirement to be on call or as in the case of the O’Leary v Gukkovs case MWA/12/24 to “stay overnight on a regular basis in his truck”

The Payroll Records presented and supported by headline tachograph records indicated that in the Reference period advanced by the Respondent (28th April to 17th August 2015) actual hours worked were 585 hours and 39 minutes. Pay was €5,428.80 giving a divisor of € 9.27. This is greater than the national minimum wage for the period which was €.8.65.

9:3        To examine this Minimum Wage point further the Respondent , as essentially corroborative evidence in support of his principal direct evidence at the Oral Hearing referred to an Investigation by a WRC Inspector in late 2015 which effectively, it was stated, established that the Respondent was not in breach of the NM Wage. The “Contravention letter” of 5^th January 2016 was cited in evidence – this letter did not identify a breach of the NW Wage act as regards rates of pay.

Notwithstanding and without prejudice to their case the Respondent pointed to Section 24(2) (b) of the 2000 Act which provides

Disputes about entitlement to minimum hourly rate of pay.

24

4. — F21 [(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee ’s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. ]

(2) F21 [The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41of the Workplace Relations Act 2015]—

( a) unless the employee—

(i) has obtained under section 23a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

( b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33or 34, or

(ii) prosecuted for an offence under section 35.

(3) F22 […]

(4) An inspector shall advise F21 [an adjudication officer], on request by the F21 [adjudication officer], as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.

The net effect as stated by the Respondent that was that it was possible to advance the case that a claim under the Adjudication options was not permissible as the case had already been the subject of Inspection proceedings.

On the other hand the Complainant’s legal Representative relied on Section 34(5) (a) to effectively suggest that the Investigation by the Inspector was prohibited.

Section 34 provides

(5) An inspector shall not investigate an allegation or matter—

( a) in relation to a dispute which has been referred to a rights commissioner under section 24 (and shall cease any investigation he or she has commenced on becoming aware of any such referral); or

On the basis of the facts, the Inspector commenced her inspection on the 23rd of October by proposing an Inspection visit on the 25th November 2015. The Complainant’s initial complaints were lodged at the WRC on the 28th October 2015 and the Minimum Wage Complaints on the 17th December.

As the Inspection function is independent of the Adjudication function the Inspectorate did not become aware of the reference to Adjudication until sometime later ( early in the New Year). At such time they ceased their Investigation. However it was largely completed by this time and correspondence had already issued to the Respondent employer.

As the primary evidence was ,at all times, given by the Respondent I found it not unreasonable of the Respondent to make what could be best called as “corroborative” reference to the Inspection correspondence.

9:4        Taking the credible payroll evidence provided by the Respondent as a primary reference point I came to the view that the rate of pay for actual hours worked was in excess of the National Minimum Wage. This evidence was open to full cross examination by the Complainant’s Legal Representative. No detailed breaches of the Regulations, supported by pay slips or other employee records were put forward in supportive evidence by the Complainant.

9:5        As stated above at Section 9:1 of this Adjudication the Complainant’s case was based essentially on a generalisation “divide by 48” method. This does not have a clear basis in Legislation.

The direct evidence given by the Respondent Manager and the written submissions I found credible.

I had to find that no Complainant evidence to suggest , as regards rates of pay, that the National Minimum Wage Act, 2000 had been breached.

9:5 .(1)             Outcome of CA-00000422-003

As a consequence of the above discussion I find that there was no evidence of the rates of Pay for the Public Holidays, (being an off shoot of the basic rate of pay) being in contravention of the Organisation of Working Time Act, 1997.

9:6      CA-00000422-003 - Sunday Premium

The Complainant’s Contract of Employment under “Salary” states that the weekly base rate “includes Sunday Premium payments”. No further detail is provided.

DWT 15104 Tansey Transport Limited v Marek Rog was raised by the parties. In this case it was stated that the Respondent “had not identified the proportion of that difference that constitutes the premium for working on Sunday”.

I have to find that the Respondent was in breach of the specified regulations here. The Sunday Premium was not clearly identified. The Inspection letter (February26th 2016) from the WRC Inspector given in evidence also identifies this point.

Accordingly I award a sum of €250 as compensation for this breach.

9:7      CA-00000422-005 - Annual Leave/Holidays

The Complainant alleged that he did not receive his proper wage rate for Holidays – an off shoot of the Minimum Wage complaint. As there was no evidence of the National Minimum Wage not being paid the holiday rate of pay complaint falls under the same heading.

The claim has to be dismissed.

9:8      CA-00000422-006 – 010

Section 11 of the OTWA, 1997 & Section 12 of the OTWA, Act 1997 and Weekly Rest Breaks

It was accepted by the parties that these elements of the claim were not being contested by the Complainant.

Accordingly for the purposes of this Adjudication they are procedurally dismissed.

9:9      Summary Finding /Redress

CA-00000422-003 - Sunday Premium

Redress of €250 awarded for breach of statutory rights.

9:10    No awards for any of the other complaints under Section 27 of the Organisation of Working Time Act, 1997               

10:      Complaints under Statutory Instrument SI /36 of 2012. European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

( In addition the “Records” request under the National Minimum Wage Act 2000 and the Organisation of Working Time Act, 1997- the additional Complainant filing of the 17^th December 2015)

In addition where similar /identical complaints have been filed under the Organisation of Working Time Act,1997 ( Ref Section 9 of this Adj above) the discussion can be taken as referring to these complaints as well.

10:1 Summary Sheet.

Claims and Findings/Decisions. Complaints under Statutory Instrument SI /36 of 2012.

As an aid to considering the multiple complaints in this case I have summarised the findings/Decisions. Detailed arguments are set out in the following Sections 10:2 to Sections 10:11 of this Adjudication..

10:2               Detailed discussions:

Complaints under Statutory Instrument SI /36 of 2012.

CA- 00000422-008; CA- 00000422-011; CA- 00000422-016; CA- 00000422-019

For convenience these complaints can be categorised as

1. Working Excessive Hours – Regulation 5
2. Night Work – Regulation 10
3. Breaks - Regulation 8
4. Daily and Weekly breaks – Regulation 9
5. Regulation 11
6. Records – Regulation 12
7. Sunday Working
8. Public Holidays

Taking as above

10:3        Point 1: 3 and 4 above: Excessive Working Regulation 5; Hours: Breaks - Regulation 8; daily and weekly breaks – Regulation 9

These elements of the claim were vigorously disputed by the Respondent.

The Complainant largely based his case on the demand for the Respondent to produce detailed records going back to 1^st January 2015. ( The additional filing of the 17^th December is also covered here)

No, even hand written diaries, verbal recollections or non specific anecdotal evidence was produced by the drivers (all three present at the hearings) of excessive hours being worked.

A generalised legal and procedural point arises here. Legal precedent is critical .

ADJ - 00001598 provides a very useful summary of precedent.

In this ADJ the Adjudicator had reference to, in relation, to statutory breaks, to Section 12(1) of the Organisation of Working Time Act 1997 which provides:

“12(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

From this it can be generally accepted that although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring that the provisions of the Organisation of Working Time Act 1997 are complied with. The same can be said of the Complaints under Statutory Instrument SI /36 of 2012. European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 being considered here.

Legal precedent would further indicate that how the burden of proof pertaining to such matters is set out can be found in the Labour Court decision of Circus Gerbola Limited -v- El Mostafa Chtabbou MWD 1211, relying on Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311 as follows:

“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.”

Applying the aforesaid test to the instant facts of this case , I am not satisfied that the Complainant has overcome the first low hurdle of providing sufficient evidence to support a stateable case of non-compliance with Section 12 of the Act, sufficient to “suggest a reasonable possibility” of non-compliance with the Act.

In previous cases the Court and the Rights Commissioner/Adjudicator referred to the facts that the Complainant would have waited until some time after terminating his employment to make a complaint, for the very first time, that he was not being afforded his breaks by way of a claim to the WRC.

In this case I was satisfied that the Complainant had regular contact with the Head Office in Limerick. The drivers at the hearing all appeared to have a good personal relationship with the Respondent Manager.   There appeared to be no valid reason for the Driver in this case ,(during the eleven years as of his employment) ,not to have brought to the Respondent Manager’s attention during this period complaints regarding not being able to availing of his breaks /excessive working hours.

Having failed to overcome the first evidential hurdle, it follows that the Respondent does not have to be called upon to put the records required by Section 25(1) of the Act into direct evidence showing compliance with Section 12 of the Organisation of Working Time Act or by extension in this instance Statutory Instrument SI /36 of 2012. European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

10:4        There was no “stateable”evidence advanced by the Respondents , all three drivers being present at the hearing of actual breaches of the cited Regulations and Acts.

The Respondent Manager gave evidence which I found personally convincing. The business came across to me as a modern professionally operated organisation.

1. The business is tightly regulated by Electronic Tachographs – breaches of rule and regulations involving working times would be impossible to hide. The Tachographs are available for inspection by any Police force/Road Safety regulator in all member states of the EU. Insurance cover for the vehicles would be voided by any breaches of the Tachograph rules.
2. The Complainant had by his own admission worked quite happily for the Respondent for some 11 years before moving to a higher paid driving job in North Leinster. There was no apparent grievance advanced at the oral hearing linked to excessive hours or other unfavourable conditions of employment from the Complainant against the Respondent.

I refer again to the Labour Court in MWD 1211 in the case ofCircus Gerbola Limited -v- El Mostafa Chtabbou MWD 1211, relying on Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311.

The fundamental requirement is for a “stateable case” and this hurdle has not been surmounted in this case.

10:5        Night Work

The Complainant advanced the case that if a driver commences at 00.00 (midnight) he must finish as 06:00. The Respondent relied on Section 10 of SI 36/2012 which states

Accordingly, noting 10(1) above I took the view that the Regulation is not intended to prohibit a driver from driving again later in the day (after 06:00). A practical example is where a driver returns to his base at say 01:00 (often having come off a ferry), this time being between 00:00 and 06:00.

There is nothing to preclude him from driving again later in the day.

Accordingly did not find this element of the claim, as advanced by the Complainants, well founded and dismissed it.

1. –Work Breaks / Regulation 8

In addition to the points made above in this Adjudication regrading working Time and Hours in the Complainants submission reference were made to the Complainant “taking 45 minute breaks” (Submission of 10th March 2016 /page 6).

Considering the evidence available and no evidence was produced by the Complainants I did not find a breach of subsection 3 of regulation 8 of SI /36 of 2012 and dismissed this element of the claim.

1.         Daily and Weekly Breaks /Regulation 9

Again and referencing Section10:1 of this Adjudication decision above the Complainant stated that he was not afforded a weekly 35 hour minimum break. The Respondent pointed to EC 561 /2006 and S1 36 /2012 where no specific provision for 35 hour break is unambiguously set out.

No direct “stateable” or even anecdotal direct evidence of any contraventions was presented by the drivers present at the hearing.

1.         (Regulation 11) Obligations to Notify Mobile Workers of SI 36/2012

The relevant Section is quoted below.

1.         Section 12 -Maintenance of Records   Additional complaint of the 15^th December 2015

In regard to Regulation 12 – the Maintenance of Records – the Respondent in evidence both written and oral appeared to be a professional business operating to high standards. All evidence pointed to the fact that all required Records are maintained. The incidental evidence (given in correspondence to the Respondent and exhibited in the Respondent’s book of evidence) from the Workplace Inspector, prior to her withdrawing from the inspection, clearly proves that required records were being kept.

On balance this element of the Claim is not well founded and is dismissed.

1.                     Sunday Working and Public Holidays - SI/36 of 2012

The Respondent’s legal advisor pointed out that SI /36 of 2012 does not have any provisions as regards Sunday or Public Holiday Working. On examination I found this to be the case and these elements of the claim had to be dismissed for want of jurisdiction.

1.                     Pay on Leaving employment /Public Holidays and Annual leave

The Respondent gave direct evidence on all payments being made on leaving employment. It was not contested at the hearing. Claim dismissed.

11:      Concluding Summary

The key question in this most extensive case, evolved, firstly , around whether or not the Minimum Wage was being paid. Once this was determined the remaining sub sets of the claim fall away save for some technical infringements which have been addressed, as appropriate , by compensation lump sums for specific items.

Dated 07/12/2017