Complainant

Respondent

Anonymised Parties

A lorry driver

A logistics and transport provider

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-00012147-002

27/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012147-003

27/06/2017

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-00012147-004

27/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00012147-005

27/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00012147-006

27/06/2017

The complainant is a HGV driver, working between Ireland and the UK. He was employed by the respondent for a short time in 2017. He raises issues regarding his working time and payment of his wages; the respondent denies the claims.

In a preliminary submission, the respondent submitted that the complainant had already withdrawn this matter as it settled. This settlement took place over the phone and there was nothing in writing. In reply, the complainant outlined that his email withdrawing the complaint related only to the first complaint, that made pursuant to the Payment of Wages Act and relating to holiday pay.

This preliminary issue arises because of the complainant’s email of the 6th July 2017. He states “To whom it may concern, An agreement has been made in this matter. I withdraw my complaint on receipt of a payment of a sum of €800 net of tax, to settle this complaint. Yours sincerely...” On the 12th July 2017, the WRC wrote to the parties to indicate that all six complaints or dispute were withdrawn and it no longer had jurisdiction in the matter. In his email of the 17th July 2017, the complainant indicated that he had not agreed to withdraw the five remaining matters and stated that they should proceed to adjudication. The WRC scheduled the five remaining complaints and dispute for adjudication and the respondent was informed of this on the 18th July 2017.

The Labour Court has set out the following principles in assessing whether an agreement waives a complainant’s statutory right to pursue employment law claims:

“1. The terms of any waiver must be construed strictly against the party from whom it emanated. Where there is doubt the course of negotiations between the parties should be examined so as to ascertain what was intended.

2. An agreement to waive statutory rights must be supported by adequate consideration.

3. The waiver should normally arise from an agreement reached as a result of meaningful negotiations and professional advice having been sought and given.

4. The waiver should list the various Acts being taken into account.

5. The waiver is only valid if it is based on a free and informed consent given by a person with full knowledge of their legal rights.

6. It is for the employer to ensure that the worker is capable of giving an informed consent and the employer should normally advise the worker in writing to obtain professional advice before inviting him or her to sign a waiver.” [Sunday Newspapers Ltd v Kinsella and Bradley [2006] E.L.R. 325]

Given the informal nature of the agreement reached by the parties in July 2017, it cannot prevent the five remaining complaints and dispute from proceeding. The complaint made pursuant to the Payment of Wage Act was already withdrawn.

In evidence, the complainant outlined that there is no Employment Regulation Order in the road haulage industry. His role involved driving a truck between Ireland and England. It was all done verbally by the respondent; there was no contract. On the Thursday before the June bank holiday, he informed the Manager that he had not been paid. She replied that he would be paid the following day. The complainant was then asked to do another run but he was “cleaned out”. He asked for €50 and did not do the run as he was not paid. He had not been paid on the Friday and was told that he had to go out on Sunday. He replied that he would not do the work if he was not being paid. He did not trust the employer as there had been previous delays in payment. He reinstated all the complaints if the €800 settlement was not paid.

The complainant outlined that he has signed a contract with every other employer and was not given a contract in this case. In relation to his hours of work, he outlined that if a driver worked between midnight and 4am, they could only work for ten hours after that. There is the option of signing an opt-out, but the complainant had not signed one. He regularly worked more than 10 hours. In the complaint form, he stated that he often started work after midnight and had to work to 2pm to catch the ferry. Over the five weeks, he did two trips to the UK one week and three the next. In respect of the Industrial Relations dispute, the complainant said that he did not work as he had not been paid. The respondent had sacked him. He received a text message on the Friday evening and replied that he would only go out if he was paid.

In cross-examination, it was put to the complainant that the sum of €800 was paid on the 12th July 2017; the complainant replied that the agreement was that the pay would be paid immediately but this did not happen for five weeks. The €800 was for a week’s work that had not been paid. This was the week up to the bank holiday weekend. The complainant said he received the pay slip from the respondent yesterday. He commented that the ferry times he provided were the ones where the loader worked efficiently and there were no road works en route. The complainant said he referred to “his contract” when he was informed of the situation regarding bank holidays. He could provide additional information regarding the worst days for breach of hours. The complainant acknowledged he worked after resigning. He last drove for the respondent was the 25th May 2017 and he then refused to go out when he was due on the Sunday.

The respondent outlined that it is a transport and logistics provider. In respect of the claim of excessive night hours, the respondent submits that it requested the complainant’s tachograph card to investigate the issue. It denied that he was required to work excessive night hours and the complainant could take breaks. In respect of the Terms of Employment (Information) claim, the respondent submits that the complainant refused to sign the contract issued to him. In respect of the second working time claim, the respondent denies the claim and asserts that it does keep records in line with statutory requirements. It requires the tachograph to create the records. It also submitted that the Road Safety Authority found no contraventions in a full inspection in October 2017. In respect of the Section 45A Industrial Relations claim, the respondent submits that the haulage industry is not subject to an Employment Regulation Order. In respect of the second Industrial Relations dispute, the respondent submits that the claim of constructive dismissal should fail as the complainant did not avail of the grievance procedure.

The respondent provided the complainant with the exhibited contract. It submitted that the complainant referred to “my contract” in his complaint form to the WRC. This states “I was also told lies I would be paid UK bank holidays only as it was a UK run, and in my contract. I do not want to make a big deal out of this, but all efforts to contact them result in no answer or “refer to contract” message.” The respondent submitted that there is no reference in the contract to UK public holidays.

In respect of the hours of work claims, the respondent outlined that the complainant refused to hand over his tachograph card. In this case, the lorry is loaded by others so the HGV driver does no manual work. They could close the curtains in the trailer. Time is monitored on the tachograph and the respondent had no dates to investigate.

The respondent submitted that the complainant resigned on the 22nd May 2017 and he last drove in the week of 25th May. He refused to work on the 26th and 27th May 2017. The Manager made a mistake and paid a colleague two sets of wages. The Manager outlined that she arranged for a payment to be made to the complainant’s account. The text message was from a named company and this stated that the complainant must drive or “he would be let go”. The Manager said that the complainant initially invoiced for his work. They then had a vacancy for a UK driver and she looked at the complainant’s CV. This showed lots of short term work. She gave him a contract and he handed it back saying, “contracts are for mugs”. He refused to sign it and she signed it. She had encountered this happening once before. Her practice was to keep the contract on their file. It was agreed that the complainant would get the UK bank holidays plus St Patrick’s Day and Halloween, which are paid as extra if the driver goes out on the evening ferry. The complainant left his phone and other devices on the Manager’s desk to indicate his resignation. The respondent submitted that it had two months to provide a statement to the complainant so it could not be in breach of the Terms of Employment (Information) Act.

The first issue to address is when the complainant’s employment started and ended. The date of the commencement is the 24th April 2017, as stated in the contract exhibited by the respondent. The date the employment ended is the 26th May 2017, as stated in the complainant’s email of the 22nd May 2017. For the mobile worker working time claims, I note that the complainant commenced as a contractor with the respondent on the 29th March 2017.

CA-00012147-002

This is a complaint made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations regarding excessive night work. The Regulations transpose EU Directive 2002/EC/15.

The complainant commenced as a contractor and later became an employee of the respondent. I note that the 2012 Regulations apply to both employed and self-employed mobile workers. Both have recourse to the Workplace Relations Commission pursuant to Regulation 18. The period covered by this complaint is the 29th March to the 26th May 2017.

The 2012 Regulations provide as follows in relation to “night time” and “night work”:

““night time” means in respect of motor vehicles used for carrying goods the period between 00.00 hours and 04.00 hours and in respect of motor vehicles used for carrying passengers the period between 01.00 hours and 05.00 hours;

“night work” shall mean any work performed during night time”

Regulation 10 of the 2012 Regulations provides as follows in relation to 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.”

The complainant outlined that he regularly worked excessive night hours. He states that he worked through the night and had to drive until 2pm to catch a ferry. The respondent replied that he was not required to load and also asked the complainant for his tachograph card to investigate this issue.

The burden of proof in such cases is that set out by the Labour Court in Antanas v Nolan Transport (2011) 22 ELR 311; it is for the claimant to adduce such evidence as is available to support a stateable case of non-compliance. The 2012 Regulations covers the working time of mobile workers, while driving or otherwise working. I further note that the 2012 Regulations impose obligations on employers regarding the working time of mobile workers. These are standalone and separate obligations to those arising from the tachograph regulations (governed by S.I. 229/2017).

Having considered the evidence, I find that the complainant has advanced a stateable case of ongoing breaches regarding night working. Regulation 10 places the obligation on the employer to ensure that the mobile worker does not work excessive hours. While I note the respondent’s reference to loading being done by a named company, this does not discharge the legal burden in Regulation 10(3).

It follows that the complaint is well founded. In assessing redress, I note that the complainant drove to the UK either twice or three times per week. I note that he worked for the respondent for eight weeks. I note the importance of working time as a health and safety measure for mobile workers. I note that any person who fails to comply with the Regulations commits an offence. Taking these factors together, I award redress of €1,000.

CA-00012147-003

This is a complaint made pursuant to the Terms of Employment (Information) Act. The parties gave conflicting evidence whether the respondent provided the complainant with a statement of the terms of his employment.

The complainant’s employment commenced in or around the 24th April 2017. Given that his employment ended on the 26th May 2017, there can be no contravention of section 3 of the Act as the period of two months had not expired. The complaint is, therefore, not well founded.

CA-00012147-004

This is a complaint made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations regarding record keeping.

Section 12 provides:

“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).”

The records are the centre point of compliance with the Regulations. This is a separate obligation to those imposed by the tachograph regime. The respondent did not demonstrate compliance with Regulation 12. This breach is justiciable by an employee, pursuant to Regulation 18. In line with Article 11 of Directive 2002/EC/15, I award redress that is effective, proportional and dissuasive and in this case, the respondent shall pay to the complainant redress of €1,000.

CA-00012147-005

This is a complaint made pursuant to section 45A of the Industrial Relations Act. This section, commenced on the 1st October 2015, provides:

“A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

As set out in the evidence, there is no Employment Regulation Order in the haulage industry, or otherwise applicable to the complainant’s employment. This complaint is, therefore, not well founded.

CA-00012147-006

This is a dispute of unfair dismissal advanced by the complainant pursuant to the Industrial Relations Act. The complainant resigned by email of the 22nd May 2017, citing “The job as described is not the job as is, and the remuneration does not match the work. Missed and changed ferries, now means spending more and more time away from home and more expense eating out. More importantly is means [sic] more and more pressure on Tachograph hours, Working time directive legislation and on myself personally with ever changing sleeping pattern.”

I find that this element of the case is not well founded. As submitted by the respondent, the complainant ought to have engaged the grievance procedure before resigning. He raised several issues in the email and the respondent should have been given the opportunity to address them.

CA-00012147-002

I find that the complaint made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations in respect of night work is well founded and the respondent shall pay to the complainant redress of €1,000.

CA-00012147-003

I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

CA-00012147-004

I find that the complaint made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations in respect of records is well founded and the respondent shall pay to the complainant redress of €1,000.

CA-00012147-005

I find that the complaint made pursuant to section 45A of the Industrial Relations Act is not well founded.

CA-00012147-006

I do not make a recommendation in the complainant’s favour in respect of his resignation from the respondent.

European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations

Regulation 10 / night work

Regulation 12 / records

Contract of employment / repudiatory breach