Complainant

Respondent

Parties

Driver

Commercial vehicle rental company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009756-001

16/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009756-002

16/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009756-003

16/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00009756-004

16/02/2017

The Complainant gave his evidence with the assistance of an interpreter. It was agreed that the Complainant had worked as a driver with the Respondent company since in and around May of 2008. The Respondent had a significant Contract with a Transport company (AT) and was engaged in the overnight cleaning and maintenance of tracks and stations of a local Public Transport facility . The Complainant worked the night shift. This shift started at 10pm and was due to end at 6am. The Complainant would ordinarily make his way to the vehicle depot and pick up whichever truck was assigned to him and make his way to his place of work. The Complainant was on a rate of pay of €17.50 per hour which reflected the unsocial hours he was working. The Complainant generally worked 5 nights a week. The Complainant does not have a great command of the English language but was a good worker and there no suggestion of a Disciplinary Record to speak of. The Complainant gave evidence that his shift would invariably run into overtime by reason of the fact that he was obliged to empty his Truck at a local refuse/recycling facility at the end of the shift before returning it (cleaned up) to the depot for use in the next shift. The facility was very slow in its operation. The Complainant claimed that this could sometimes take up to two hours so that his shift in fact very often finished at 8am and not 6am. The Complainant claims he was therefore working a ten hour shift and not an eight hour one for which he was getting paid. The Complainant gave evidence that he had addressed this issue with the Accounts Office based in Kilkenny but was told that he would only be getting paid for the 8 hour shift. This conversation was with a lady called S in and around November 2015. The Complainant explained that he was fearful of losing his job if he made any further issue of this matter and he simply continued to allow his working day run over the time he would be paid for. He said he mentioned it from time to time to other persons in the Accounts Office but they would not heed his protestations. The Complainant described two of his Irish colleagues PH and TR laughing at him for being so put upon and saying they wouldn’t be working for free. I did not form the impression that this was unkindly meant but was to get the Complainant to stick up for himself.

By way of evidence the Complainant provided me with a log from the Recycling company which shows the Complainant finishing his onsite weigh in at about 7am (ie an hour after the official end of his shift) on the 18^th of July 2016. It is to be assumed that the Complainant had still to make his way back to the depot after this, lending support to his claim that he could work up to two unpaid hours after his shift had purportedly ended.

The Complainant also described a less regular occurrence whereby he was expected to present himself and his machine at a third party location but the onus was on him to collect the machine at the Employer’s depot and drive it to the place of work in advance of his shift starting. The Complainant would not get paid for this travel time. This usually occurred if the Complainant had picked up a daytime shift. For example, this happened to him on the 10^th of January 2016 where it took him an hour each way to get to the place he was to do a four hour shift. The Complainant gave evidence that he lost over 30 hours pay in 2016 arising out this practise alone.

There was an unusual arrangement whereby the Complainant was asked to fill in two separate time sheets at the end of each working week. The one going to his employers client AT showed that the Complainant worked a fifty hour week (ie the ten hours a day) whilst the one that he presented to his Employer was for 8 hours. In October of 2015 the Complainant had submitted a claim/time sheet to the Respondent Accounts for the fifty hours that he had worked but the pay he received related to the 40 hour week. Without reference to him the Accounts Office had ignored his claim. The Complainant did not try this again. The relevant paperwork (two distinct timesheets and a payslip) was made available to me for examination. The Employer did not give a coherent reason for this unusual practise relating to two separate timesheets.

The Complainant may have continued in this situation indefinitely had commercial circumstances not intervened whereby his Employer lost the AT contract in and around September 2016. There being no suitable alternative employment for the Complainant, the Employment was terminated. The Complainant described a fairly hostile meeting he had with the MD on or about the 19^th of September 2016 and introduced into evidence a letter he sent to his Employer after that meeting. It is worth noting that the Employer denied having sight of this said letter though there was evidence that this letter was sent via email form the Complainant’s phone and I am satisfied that the Respondent MD was pre-warned of the content of this letter and was therefore on Notice of the litany of grievances that the Complainant raised at the end of his employment but which the Complainant was fearful to raise in the course of his employment.

The Complainant was made Redundant and his redundancy was paid to him in accordance with his Statutory entitlement. There was no final provision made for the payment of Minimum Notice or any outstanding Annual Leave. His final payslip was shown to me in this regard.

By reason of the foregoing the Complainant claims that he is entitled to his Statutory Minimum Notice which would be four weeks. The Complainant was given no Notice payment at the time his Employment came to an end. The Complainant is also looking for lost annual leave entitlements in the amount of two days lost to him.

There is a significant claim for loss of wages for hours worked but which were not in his weekly wage package a so-called deficiency or non-payment as recognised under section 5(6). It is noted that the Complainant’s Workplace Relations Complaint Form issued on the 16^th of February 2017 and that the calculable period can therefore only reach back six months form that date. The Complainant has requested that I acknowledge that he has shown reasonable cause (pursuant to Section 41 of the WRAct) for the lateness of his claim and accordingly that his claim should be extended by six months bringing a Payment of Wages claim dating from February 2016.

The Complainant has further asked that he should succeed under the Employment Equality Acts as he was being discriminated against by reason of being shown less favourable treatment than his Irish colleagues who were always paid for the time they spent travelling to and from work and two and from the recycling plant.

The Respondent was represented by it’s MD. There was a lack of preparedness on the part of the MD which was regrettable. That said, I made all inquiries I could reasonably be expected to make of him. The MD was adamant that the Complainant was not working over and above the 8 hours he was being paid for. He could not provide an explanation for the Recycling docket which clearly showed the Complainant at work one hour after his shift had ended. The MD stated that the Complainant had no obvious comparators as the two named individuals PH and TR worked day shift at a rate of €12.00 per hour and the Complainant generally worked alongside a crew from the client AT. The Respondent seemed unaware of the Complainant’s long standing issues with regards non- payment for hours worked. This is despite the fact that these claims were set out in the Complaint Form and also formed part of the comprehensive letter addresses and emailed to him in and around September of 2016 and which I find as a fact he received. There was no witness made available from the Accounts department and.

In addition to the foregoing the Respondent’s explanation for the preparation of two separate work schedules was vague and related to the client paying for the Respondent upgrading its own machines – which just seems commercially unlikely.

I found the Complainant to be an honest witness who had been inclined to accept the perceived injustices contained in his weekly payslip when he had the comfort of a secure job with regular shifts. The Complainant has family and financial obligations and was disinclined to make trouble in a workplace in which he had worked for 8 years.

The termination of the employment came out of the blue for both employer and employee. Whilst there was an offer of alternative work it is accepted that the terms wold have been significantly different with fewer hours and a daily commute of up to four hours. It was inevitable that the Complainant would seek his Redundancy in all the circumstances. It is noted that whilst the Redundancy was paid, the issues of Minimum Notice and Annual leave remain unaddressed.

I accept fully that the Complainant having been somewhat resigned to his treatment in the past had now nothing to lose in opening up the previously ignored issues of the long hours service he was giving to his employer and without remunerative recompense. The Complainant additionally raised the issue of his treatment as compared to his Irish colleagues.

The Complainant had a most detailed account and record of his weekly shortfall and in effect was looking for a shortfall of 10 hours a week for the seven month period between February 2016 and September of 2016 in circumstances where I am satisfied that it is reasonable for me to extend the time by the 6 months sought. This is a 30 week period at a rate of €175.00 underpayment per week. In addition the Complainant has assessed that part of his claim relating to unpaid and allowable travel time at 36 hours which is a deduction of €630.00.

I am satisfied that the Complainant has made a Prima Facie case of discrimination in the way he has been treated by his Employer. As a non-national he was not in a position to ameliorate his circumstances. His Irish colleagues highlighted the fact that he was not getting paid for certain hours that he was entitled to be getting paid for and which the two Irish colleagues were being paid. His treatment was less favourable than that of his colleagues and amounts to discrimination on the grounds of his race. This discrimination operated every working day right up to the last working day and therefore falls within the time limits demanded by the Statute. The Respondent has not rebutted the presumption that it has acted in a discriminatory way and no other less contentious inference has been established by the Respondent MD herein.