Complainant

Respondent

Anonymised Parties

HGV Driver

Transport Company

Representatives

Ger Malone, SIPTU

Richard Grogan & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00012420-001

02/06/2017

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

CA-00012420-002

02/06/2017

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

CA-00012420-003

02/06/2017

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

CA-00012420-004

02/06/2017

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

CA-00012420-005

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000

CA-00012420-006

02/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012420-007

02/06/2017

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

CA-00012420-008

02/06/2017

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

CA-00012420-009

02/06/2017

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

CA-00012420-010

02/06/2017

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

CA-00012420-011

02/06/2017

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

CA-00012420-012

02/06/2017

The complainant commenced employment as a HGV driver with the respondent in July 2011. He was employed in a full-time capacity. The complainant with the assistance of his union raised a number of issues regarding his terms of employment which were processed through correspondence and meetings. As matters were unresolved they were referred to the WRC.

Complaint No. CA-00012420-001:

This is a complaint under the National Minimum Wage Act, 2000. The complainant’s union official on 27 April 2017 submitted a written request under Section 23 of the Act for a written statement of the complainant’s average hourly rate. The respondent replied with certain details but the information received did not meet with the requirements of the Act, specifically with the interpretation of aspects of the legislation as previously set out by the Labour Court in a determination involving the respondent. The contractual obligation of the complainant is to be available to the respondent for the hours as permitted by the E.U. Driving Hours Regulations which has been determined as 48 hours per week, even if the complainant does not actually work the maximum hours. The complainant was not always paid for 48 hours per week. The complainant frequently worked hours in excess of 48 and the respondent’s definition of working time is in conflict with the determination of the Labour Court.

Complaint No. CA-00012420-002:

This is a complaint under Section 27 of the Organisation of Working Time Act, 1997. The complainant had a constant battle with management in attempting to secure the minimum period of 11 hours daily rest period and on many occasions he received less than his legal entitlement.

Complaint No. CA-00012420-003:

This is a complaint under Section 27 of the Organisation of Working Time Act, 1997. The complainant has been obliged on a frequent basis to work more than 48 hours per week and on some occasions he worked more than 60 hours per week.

Complaint No. CA-00012420-004:

This is a complaint under the Terms of Employment (Information) Act, 1994. The complainant’s terms of employment were changed without notification to the complainant. There was a change from weekly to fortnightly pay and a change to the rate for Public Holidays and Annual Leave.

Complaint No. CA-00012420-005:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant was penalised for raising issues relating to working excessive hours and not getting breaks. The complainant was subjected to disciplinary action which resulted in him being suspended from duty for 4 weeks without pay.

Complaint No. CA-00012420-006:

This is a complaint under the National Minimum Wage Act, 2000. This complaint was withdrawn at hearing.

Complaint no. CA-00012420-007:

This is a dispute under the Industrial Relations Act, 1969. The issue was withdrawn at hearing.

Complaint No. CA-00012420-008:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant on many occasions did not receive the minimum 24 hours’ notice of his start times. In addition, his finish time was unknown, being determined by the loads that he was detailed to collect, deliver and unload on a particular day.   The complainant did not receive notice of a requirement to work additional hours.

Complaint No. CA-00012420-009:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant did not receive his full weekly rate of pay when he was paid for a week’s annual leave being left short €40.35 on a particular occasion. The respondent is incorrect in their calculation of pay in respect of annual leave.

Complaint No. CA-00012420-010:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant did not receive the correct payment in respect of 3 specific Public Holidays in 2017. He was paid less than the amount due to him.

Complaint No. CA-00012420-011:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant was not notified in advance of his start and finishing times.

Complaint No. CA-00012420-012:

This is a complaint under the Terms of Employment (Information) Act, 1994. The complainant has not received a written statement that complies with the provisions of the legislation. The main defects are that the employer’s name is incorrect, the rate of pay is incorrect and the hours of work are not specified.

CA-00012420-001:

No request under Section 23 of the National Minimum Wage Act has been furnished for a pay reference period in line with the legislation. In addition, an investigation under the Act by an inspector has already taken place and under Section 24 of the Act the complaint cannot be investigated by an adjudication officer.

CA-00012420-002:

The complainant is a driver and is covered by the regulations contained in S.I. No. 342 of 2015. The adjudication officer has no jurisdiction to hear this complaint.

CA-00012420-003:

The same objection as applied to CA-00012420-002 above also applies to this complaint.

CA-00012420-004:

The respondent accepts that changes were made as part of an overall review of contracts in order to rectify any deficiencies therein. The complainant was notified of the changes. The complainant suffered no detriment as a result of the changes.

CA-00012420-005:

The complainant was disciplined for incorrectly filling in his work sheets insofar as he excluded rest breaks from the sheets. The complainant signed the sheets knowing that they were incorrect and this could have resulted in serious consequences for the respondent.

CA-00012420-006:

Withdrawn.

CA-00012420-007:

Withdrawn.

CA-00012420-008:

The complainant was advised by text of his start time. It is accepted that, on occasions and due to the nature of the job, it was not always possible to give notice of finishing times.

CA-00012420-009:

The respondent accepts that there may be issues in this regard and is working to put things right.

CA-00012420-010:

It is accepted that the respondent may have been in breach of the legislation in this regard.

CA-00012420-011:

This appears to be a duplicate of the complaint contained in CA-00012420-008.

CA-00012420-012:

The respondent has undertaken a complete review of this documentation in respect of all employees and matters are being rectified.

CA-00012420-001:

Preliminary issues:

Section 24(2) of the National Minimum Wage Act, 2000, states:

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 41 of the Workplace Relations Act 2015 –

(a)    unless the employee –

(i)                  has obtained under section 23 a 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 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 an investigation by an inspector under section 33 or 34, or

(ii)                prosecuted for an offence under section 35.

The complainant’s representative on 27 April 2017 emailed the respondent’s HR Manager and, on behalf of the complainant requested “as provided for under the Minimum Wage Act 2000 a written statement of their average hourly rate of pay. The reference period to be applied is Week 1, Week 2, Week 3, Week 4 for October 2016.   The act provides that the statement should be provided within 1 month of this request. I request that the statement complies with section 23 of the Act.” The HR Manager replied with a table which contained the week number for weeks 1 -4 of October 2016, the complainant’s name, hours for those weeks, Sunday hours and gross pay. The representative was dissatisfied with the details of the response and eventually on 19 May sent a similarly worded request to the respondent’s manager. A reply was received from the HR Manager attaching an amended table which included an additional column which included the hourly rate.

At the hearing the respondent raised two objections regarding this complaint. It was argued that the request made under Section 23 was not valid as the request was for a period citing Week 1,2,3 and 4.   A week was not defined in the Act in question but the Interpretation Act defined a week as commencing at midnight on Saturday and running to midnight the following Saturday. The request therefore did not specify a valid pay period.

The second objection was that a WRC Inspector had carried out inspections at the respondent’s workplace under the National Minimum Wage Act, 2000 and that the complainant had received a payment on foot of this inspection. The respondent argued that the adjudication officer could not therefore hear this complaint.

Section 23(1) of the Act states:

Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.

Section 10 of the Act states:

An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.

The complainant’s existing Statement of Terms of Employment has a section entitled “Minimum Wage Reference Period” in which is stated: “it will use the reference period of 4 calendar weeks with which to work out your hours against the National Minimum Wage.”

As we have seen the complainant’s representative, on his behalf, requested a statement for Week 1, Week 2, Week 3 and Week 4 of October 2016. The respondent replied on two occasions giving details for the requested weeks and raised no objections as to the validity of the request.   In all these circumstances it appears to me that the request under Section 23 was a valid request.

The complainant’s other objection was that they had been the subject of an inspection by a WRC Inspector and that the adjudication officer was precluded from considering the complaint. I wrote to the Inspector under Section 24(4) of the Act asking if an inspection under the Act into alleged underpayments had been undertaken. The Inspector replied that “I conducted the inspection under a number of Acts including Organisation of Working Time Act, National Minimum Wages Act and Workplace Relations Act. I examined the records for a sample number of employees to establish compliance with National Minimum Wages Act, Section 35. I did not examine all employees. I found some small breaches of the Statutory minimum rate of pay for 2 members of staff whom worked in the office. I did recoup arrears of pay for them. In relation to drivers I calculated their rate of pay based on the hours of work presented to me by the employer (Tachographs and Timesheets) and the wages they were paid in those periods. I did not question the working hours in relation to Ferry crossings.   Any arrears of pay received for drivers was in relation to Annual Leave entitlement.”

It appears to me therefore that the Inspector did not carry out an inspection into the specific complaint before me, i.e. that the complainant was not in receipt of his entitlements under the National Minimum Wage Act, but rather carried out a general inspection under a number of pieces of legislation in respect of the workforce employed by the respondent. I also note that the payments received by the complainant as a result of the inspection were in respect of Annual Leave entitlements.   I therefore do not accept that I am prevented from considering this complaint.

Substantive Issue:

The complainant’s hours of work as set out in his Statement of Terms of Employment state:

Your normal hours of work, which run from Monday through Sunday, will vary each day and each week, and be determined largely by ferry timetables and client collection and delivery scheduling as determined by the company from time to time, on any given day. Hours of work will be in accordance with the EU Drivers Hours (EC) Regulations 561/2006 and / or the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulation 2012.

Under the heading of Remuneration it states:

You will be guaranteed a minimum payment of no less than €106, less applicable deductions, for days worked……your basic rate of pay will be no less than €8.65 per hour worked.

The complainant’s representative referenced previous cases involving the same respondent and, in particular, Labour Court Determination No. MWD146. It was argued therefore that the Court’s determination in that case was that an employee with a similar Statement of Employment was contractually required to be available for work over the maximum permissible period provided for under the EC Regulation 561/2006, namely 48 hours per week and should be paid accordingly.  Based on this 48-hour week argument the total underpayment to the complainant since 2011 until 2016 was €9,785.80.

I have also looked at two similar further Labour Court Determinations which relate to the same respondent. The provisions contained in the Statement of Terms of Employment were the same in those cases as apply in the present case and were considered in the light of the Determination referenced above. The Court in respect of each of the two further cases stated:

This Court finds that the circumstances of this case closely resemble the details as outlined above. The complainant was employed on a daily rate of pay and was contractually required to work in accordance with the terms of the European Community Driving Hours Regulations. Accordingly, the rationale of that decision applies to this case.

The Court further finds that Section8(1)(i) of the Act states that “the hours of work of an employee shall be determined in accordance with his or her contract of employment”. In this case the contracted hours of employment are those set out in the relevant road transport regulations and accordingly the complainant is contractually committed to work those hours in return for payment of his daily pay. The national minimum hourly rate should accordingly be determined by reference to that daily rate divided by those contracted hours.

I find nothing in the case before me that is different from the above cases and therefore it follows that my decision must be in accordance with the precedents laid down by the Court. Detailed calculations were presented on behalf of the complainant. The respondent’s position was that they were disputing the figures but that their main arguments in relation to this complaint rested with the preliminary issues which have been dealt with above. No specific challenge to the figures was put forward at the hearing.

CA-00012420-002:

This complaint was referred under Section 27 of the Organisation of Working Time Act, 1997, in relation to an alleged breach of Section 11 of that Act. The respondent pointed to the provisions of S.I. No. 342 of 2015, Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015.   Section 3 of the Instrument states:

Sections 11,12,13,15 and 16 of the Act do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC.

The complainant’s representative said that the electronic complaint form did not allow her the option of a complaint specific to transport workers. In addition, it was argued that it was quite clear what the complaint referred to and that the respondent would not be prejudiced by being taken unawares. There were precedents in law allowing for the matter to be corrected at hearing and the complaint to be heard.

The complaint form used is not a statutory form and it is allowed for persons to add comments on the form if they feel a requirement to elaborate on details submitted. My difficulty is that one of the main purposes of the Statutory Instrument was to specifically exclude the application of certain sections of the Act to transport workers.  I therefore must accept that I am debarred from hearing the complaint.

CA-00012420-003:

This complaint was referred under Section 27 of the Organisation of working Time Act, 1997, in relation to an alleged breach of Section 15 of the Act.

For the same reasons as applied to the previous complaint I am debarred from considering this complaint.

CA-00012420-004:

In November and December, 2016,€ the complainant’s terms of employment were changed insofar as the pay period changed from weekly to monthly and the rate changed from daily to weekly / fortnightly. The respondent disputed the allegation that the complainant had received no notice of this change.

Section 5(1) of the Terms of Employment (Information) Act, 1994, states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement of employment furnished by an employer under section 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)    1 month after the change takes effect, or

(b)    Where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The respondent did not produce evidence to support their position that written notice that complied with the Act had been given to the complainant and I therefore find this complaint to be well founded.

CA-00012420-005:

Section 26 of the Organisation of Working Time Act, 1997, states:

(1)    An employer shall not penalise an employee for having in good faith opposed by lawful means an act that is unlawful under this Act or the Activities of Doctors in Training Regulations.

The background to this complaint is that the complainant wrote to the respondent in October 2016 in relation to a number of grievances regarding working hours, application of minimum wage rate, rest periods and other linked issues. A meeting and correspondence followed but the complainant was unhappy with the response from the employer. In particular, he had raised the issue of being told by members of management not to enter more than 40 hours per week on his timesheet and was advised that he should detail the number of hours driving and other work that he was engaged in on his weekly timesheet.

On 2 March 2017 the respondent wrote to the complainant advising him that he had incorrectly filled in the forms for the previous two weeks and that until the complainant clarified matters the respondent would perform a calculation in respect of a portion of his salary. On 5 March 2017 the complainant submitted a grievance regarding a deduction from his salary, a refusal to update his contract and a refusal to pay an increase due under the Minimum Wage legislation. The complainant stated that he was now recording his real hours worked and that the form did not provide space for proper details of work done other than driving. On 10 March 2017 the respondent advised the complainant by letter of an investigation meeting to consider whether the forms had been properly completed and whether the complainant was driving in conformity with the requirements of the relevant legislation, including whether “rest and breaks are being recorded as either “driving time” or “other work” or as “working time”.”

The investigation led to a disciplinary hearing on 5 May 2017 at which the complainant had union representation. The outcome, which was conveyed to the complainant by letter dated 19 May 2017, was that while the offence merited dismissal it had been decided to reduce this to 4 weeks unpaid suspension. This was appealed but the disciplinary sanction was confirmed on 9 June 2017.

The respondent argued that the complainant was not disciplined for raising grievances but for failing to complete documentation correctly. The total of working hours should exclude breaks but in filling in the forms the complainant had not done so. At the end of the form the complainant had signed to state that he had received his breaks. The result was that either the working hours on the form were filled in incorrectly or else the complainant had not taken his breaks but certified that he had.   The outcome was that the form was filled in incorrectly and this put the respondent at risk of prosecution.

I note that during the disciplinary process the complainant stated that he had begun to fill in the timesheets in the manner that he had as a protest against the company’s response to his issues and because the sheets as printed did not allow him to correctly record his various daily duties. The complainant reiterated that point in direct evidence at the hearing and accepted that three of the sheets put to him were filled in incorrectly. In the meantime the grievance procedures had not been exhausted at that time.   Furthermore, no matter how frustrated the complainant felt about the issues, the action in incorrectly filling in the forms cannot be held to be a lawful means of opposing the requirements of the respondent in this regard. I therefore find that his actions do not come within the provisions of Section 26(1) of the Act.

CA-00012420-006:

This complaint was withdrawn at hearing.

CA-00012420-007:

This complaint was withdrawn at hearing.

CA-00012420-008:

Section 17(1) of the Organisation of Working Time Act, 1997, states:

If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be require to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

The respondent stated at the hearing that the complainant would always be advised of his start times but that finish times could not be notified. The complainant disputed that he always received the required 24 hours’ notice of start times. I find that the respondent was in breach of Section 17 of the Act.

CA-00012420-009:

Section 20(2) of the Organisation of Working Time Act, 1997, states:

The pay in respect of an employee’s annual leave shall –

(a)    be paid to the employee in advance of his or her taking leave,

(b)    be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate…

According to the evidence, the complainant’s pay was €444.00 per week or €88.80 per day. On one occasion in January 2017 the complainant was paid €80.73 per day of annual leave instead of €88.80 per day and in February 2017 was paid €40.35 less than what was due in respect of a week’s annual leave. The respondent accepted that errors had occurred in this regard. I find therefore that the respondent was in breach of Section 20 of the Act.

CA-00012420-010:

This complaint is to the effect that the complainant was not paid the correct rate of pay for 3 Public Holidays, i.e. St. Patrick’s Day, Easter Monday and May Public Holiday, payment for which is covered by the provisions of S.I. No. 475 / 1997.   The payment made was as detailed above, €80.73 per day instead of €88.80. Again, the respondent accepted that this had occurred and I therefore find the respondent to be in breach of the Act.

CA-00012420-011:

This is a duplicate complaint to that covered by Complaint No. CA-00012420-008 and has been dealt with therein.

CA-00012420-012:

Section 3 of the Terms of Employment (Information) Act, 1994, states that “an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…” .   It then lists the various particulars required in order to conform to the legislation.

The complaint alleges that the statement was not received within the time frame required and that it does not comply with provision of particulars set out in Section 3. The defects complained of include the employer’s name being incorrect, the rate of pay not being stated correctly and the hours of work not being specified. The respondent stated that a complete review of this matter had been undertaken and that any defects were being rectified for all employees.

The statement of employment is defective in relation to the matters raised and I therefore find that the respondent is in breach of Section 3 of the Act.

CA-00012420-001: (National Minimum Wage Act, 2000)

For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €10,160.00 in outstanding wages.

CA-00012420-002: (Organisation of Working Time Act, 1997)

For the reasons stated above I am debarred from considering this complaint and therefore find it to be not well founded.

CA-00012420-003: (Organisation of Working Time Act, 1997)

As per the previous complaint I find this complaint to be not well founded.

CA-000012420-004: (Terms and Conditions of Employment (Information) Act, 1994)

As stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €750.00 as compensation in this regard.

CA-00012420-005: (Organisation of Working Time Act, 1997)

For the reasons outlined above I find the complainant did not suffer penalisation within the meaning of the Act and therefore find the complaint not to be well founded.

CA-00012420-006: (National Minimum Wage Act, 2000)

This complaint was withdrawn at hearing.

CA-00012420-007: (industrial Relations Act, 1969)

This dispute was withdrawn at hearing and consequently does not require a recommendation.

CA-00012420-008: (Organisation of Working Time Act, 1997)

As stated above I find the respondent to be in breach of the Act and I order the respondent to pay to the complainant the sum of €500.00 as compensation in this regard.

CA-00012420-009: (Organisation of Working Time Act, 1997)

As outlined above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €90.00 as compensation in this regard.

CA-00012420-010: (Organisation of Working Time Act, 1997)

As outlined above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €25.00 as compensation in this regard.

CA-00012420-011: (Organisation of Working Time Act, 1997)

This is the same complaint as contained in CA-00012420-008 and has been dealt with in that decision.

CA-00012420-012: (Terms of Employment (Information) Act, 1994.)

As set out above I find this complaint to be well founded.   I note that the respondent has engaged professional assistance in reviewing the statement of employment issued to their employees and I require the respondent to produce a statement that fully complies with the provisions set out in Section 3 of the Act. In addition I order the respondent to pay to the complainant the sum of €750.00 as compensation in this regard.