DWT1825

Mr Romans Vasiljevs (the Complainant) made a of complaint to the Workplace Relations Commission that the Appellant infringed his rights under Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012, the Organisation of Working Time Act, 1997 and the Unfair Dismissals Act 1977.

The adjudication officer decided as follows:-

• Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
  

  Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

  CA-0000162-001

  Pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, I find that the claim is well founded and award redress of €2,500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-001.

  CA-0000162-002

  Pursuant to section 27 of the Organisation of Working Time Act, I find that the claim is well founded and award redress of €500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-002.

  CA-0000162-003

  Pursuant to section 8 of the Unfair Dismissals Act, I find that the claim is well founded and award redress of €11,000 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000169-003.

  CA-0000169-001

  Pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, I find that the claim is well founded and award redress of €2,500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-001.

  CA-0000169-002

  Pursuant to section 27 of the Organisation of Working Time Act, I find that the claim is well founded and award redress of €500 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-002.

  CA-0000169-003

  Pursuant to section 8 of the Unfair Dismissals Act, I find that the claim is well founded and award redress of €11,000 to be paid by the respondent to the complainant on a joint and several basis to the respondent in CA-0000162-003.

The Respondent Company appealed on 2 May 2017 against those decisions to this Court. The case came on for hearing before this Court on 1 September 2017 and 21 February 2018. The case was adjourned to allow both sides make further submissions on various issues that arose in the course of that hearing. The matter finally came on for hearing on 19 July 2018.

Background

The Respondent operates a national franchising, retail and wholesale distribution business. It operates several warehouses to supply this network. On 7 June 2014 it employed the Complainant as a warehouse operative in one of its warehouses. His duties included driving a lorry and unloading deliveries to respondents’ retail stores as well as shunting work in the depot. The Complainant was paid €14.25 per hour up to the 30 November 2012 and €14.46 from the 1 December 2012.,

Unfair Dismissal

The Complainant raised a grievance with the respondent on 17 July 2015. He sent the grievance to the Company Head Office which is based in Cork. He was employed in Dublin. The Head Office did not respond to the grievance.

In the grievance letter he sent to the Company he stated that he had been asked to work illegally and lists 25 issues arising in the workplace. He said that, prior to serving this notice, he had complained five or six times to his line managers. He quotes not dates in this regard.

However, he does refer in general terms to an occasion on which he had not had 11 hours of rest between shifts. He said that there was no facility for him to sleep in the truck and he had to return the lorry to the depot and then travel home after the end of every delivery run. He said this brought him over the statutory maximum working times set out in the regulations.

The grievance procedure under which the Complainant worked provides that grievances will be responded to within 14 days. After 14 days had elapsed and no response had been received the Complainant took the view that he had been constructively dismissed on the grounds that he was being asked to work in a manner that contravened the law that could leave him open to criminal prosecution. He says that he found this requirement intolerable and amounted to constructive dismissal.

On that basis he wrote to the Company on 31 July 2015 tendering his resignation and claiming that he had been constructively dismissed by the Respondent.

The Respondent submits that local management was not aware of the grievance raised by the Complainant. It submits that the Complainant engaged with local management over the course the impugned 14 days during which he was awaiting a response from Head Office and never once raised that grievance. It submits that on the morning of the 31 July 2015, the day on which he resigned his position with the Company, he engaged in conversation with his local manager and made no reference to the grievance or his intention to submit his resignation. That afternoon he submitted a letter in which he claimed constructive dismissal on the grounds that the Company had failed to respond to his grievance and was requiring him to work in a manner that was contrary to law.

The Law

The Act, in relevant part, defines dismissal in the following terms

(b)the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

It is settled law that two tests apply in circumstances in which an employee terminates his/her own employment. These are normally described as the contract test and the reasonableness test.

The test by which a repudiatory breach of contract can be identified was set out by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharpas follows:

• “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”

The reasonableness test

This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.

An employee who seeks to rely on the reasonableness test in claiming to have been constructively dismissed must act reasonably. That normally involves providing the employer with an opportunity to address whatever grievance they may have.

There is, however, authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (seeAllen v Independent Newspapers;May v Moog LtdandMonaghan v Sherry Bros.

Findings of the Court

In the letter of 17 July 2015 the Complainant states at section 9 “When I would ask for a shift change from Jason, Dave, Lar or Eddie but usually Jason so as to get 11 hour daily rest I am entitled to would I only sometimes get. Why when I would complain about excessive hours I was told by the same four transport managers that when I took the job I know the shifts even when starting at midnight and finishing at 3pm. I now know from my solicitor this is illegal. Confirm by return this is illegal working require me to do will cease.”

At section 17 he asks “why in week ended 29/5/15 was I required to work over 60 hours. This is totally illegal and I want it to cease. I want by return written confirmation you scheduling and requiring me to work illegally will cease.”

The Complainant did not engage otherwise with the Respondent between 17 July and the date on which he resigned his position with the Company.

The Complainant’s case is that the manner in which he had been scheduled to work by the Respondent prior to 17 July required him to contravene S.I. 36 of 2012 and that this involved him in breaching the law. He submits that having requested confirmation that such scheduling would cease and not having received a response to that grievance within the agreed time-frame, he was entitled to terminate his employment so as not to place himself at future risk of prosecution not as a consequence of the Respondent’s unreasonable work scheduling practices.

In essence this contention relies on an anticipated event that may or may not take place. The Complainant raised a grievance. He sought a commitment that he would not be scheduled to work in breach of the law. When he did not receive a response within 14 days he resigned his job claiming constructive dismissal.

However, he presented no evidence to the Court that he was so scheduled during those 14 days. Nor did he raise the issue with any of his local managers during that time. Accordingly, between the time he submitted the grievance and the time her resigned his position with the Respondent he had been scheduled to work in a manner consistent with the relevant statutes and was at no risk of prosecution under the law. It appears therefore that he resigned his position because he did not receive a response to his grievance within 14 days and not because he was under pressure to break the law.

The Court finds on the evidence before it that the Respondent’s failure to respond to his grievance within 14 days does not, on its own and in the context of this case, constitute circumstances that would justify the complainant resigning his position and claiming constructive dismissal.

The Court therefore upholds the appeal, sets aside the decision of the Adjudication Officer and determines accordingly.

Determination

The complaint of constructive dismissal is not well founded. The appeal is allowed. The decision of the Adjudication Officer is set aside. The Court so determines.

Section 17 Organisation of Working Time Act

A complaint under Section 17, submitted to the Workplace Relations Commission on 20 July 2015, had previously been adjudicated on and a Decision issued by an Adjudication Officer (decision no. r-158232-wt-15JOC dated 20 May 2016), with compensation awarded to the Complainant. That decision was not appealed by the Respondent. Accordingly, the cognisable period for the within complaint is the eleven-day period from 21 July 2015 to 31 July 2015, the date of the termination of the Complainant’s employment with the Respondent company.

Section 17 of the Act in relevant part states:-

17.—(1) 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 tosubsection (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 required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

The Complainant contends that neither his contract of employment nor any other agreement that has effect in relation to his employment specifies the normal or regular starting and finish times of work. He further claims that he did not receive 24 hours advance notice from his employer of his daily start and finish times.

He submits that the document relied on by the Respondent merely outlines whether he is scheduled for an early or late duty but does not specify his start and finish times as required by section 17 of the Act. He further submits that the commencement time of early and late duties vary from day to day and that the finish times of those duties is not set out in the roster or otherwise notified to him 24 hours in advance of the commencement his working day.

The Respondent submits that it has an established process by which it provides all drivers with their roster for the following week on the preceding Thursday. The roster shows that a depot driver is on an early or late shift. It defines early shifts as those commencing between 1 am- 6 am and a late commencing at 2 pm. It submits that the Complainant’s roster was a “rollover roster” which meant that he was aware months in advance whether he was working an early or late shift. It further submits that with effect from 3 November 2014 it commenced a practice of notifying each driver two days in advance of their precise start times.

Findings of the Court

The Court finds that a worker is entitled to 24 hours’ notice of their start and finish times so as to enable them to reconcile their work/life commitments. A failure to provide such notice causes considerable inconvenience for workers who have other plans and commitments in their lives and undermines their capacity to function as full human beings in society. For that reason such notice is designed to reconcile the needs of both business and workers in a fair and effective manner.

In that regard notifying a worker that they will commence work on a shift that commences at any time between 1 am and 6 am is not sufficient to meet the requirements of the Act. The worker is entitled to know their start times more precisely than that.

In addition, workers are entitled to know their finish times so as to enable them to balance their work/family and personal lives. It is not sufficient to supply a start time with no certainty as to finish times, allowing for unforeseeable circumstances.

In this case the Court finds that the Respondent has failed to meet the obligations of section 17 of the Act in respect of the Complainant. The Respondent has since 3 November 2014 met its obligations to the Complainant in respect of his start times. However, it provided no evidence to the Court that it had taken similar steps to meet its obligations in respect of the Complainant’s finish times.

Accordingly, the Court finds that the complaint is well founded and orders the Respondent to pay the Complainant compensation in the amount of €250.00.

Determination

The Complaint is well founded. The decision of the adjudication officer is varied accordingly. The appeal is not allowed. The Court so determines.

Section 14 of the Act

The Complainant offered no evidence at the hearing on this particular complaint under Section 14 of the Act.

Determination

The Respondent’s appeal is allowed and the Adjudication Officer’s decision on this particular complaint is set aside.

Road Transport Regulations

A complaint under S.I. 36/2012, submitted to the Workplace Relations Commission on 20July 2015, had previously been adjudicated on and a Decision issued by an Adjudication Officer (decision no. r-158233-mrt-15JOC dated 20May 2016), with compensation awarded to the Complainant. That decision was not appealed by the Respondent. Accordingly, the cognisable period for the within complaint is the eleven-day period from 21July 2015 to 31July 2015, the date of the termination of the Complainant’s employment with the Respondent company.

The Complainant states that he was required to work in excess of the maximum hours permitted under S.I. 36 of 2012. He further states that he was required to work in excess of 60 hours in the relevant statutory reference period citing weekending 29 May 2015 where he states he was required to work in excess of 60 hours contrary to the provisions of the Regulations.

The Complainant also states that he was not afforded his weekly rest periods citing 25 examples of occasions on which he alleges he did not receive an 11-hour break between shifts.

The Respondent submits that it complied with the requirements of the regulations at all times. It submitted records to the Court that it states demonstrate that the Complainant at all times received his statutory rest entitlements.

Findings of the Court

The Court examined the records adduced in evidence by the Respondent. The Court provided the Complainant with an opportunity to identify shortcomings in the records and to identify occasions on which the Respondent infringed his statutory rights. He identified no such shortcomings or infringements.

Accordingly, the Court finds that the Complaint is not well founded and allows the appeal.

Determination

The complaint is not well founded. The decision of the adjudication officer is set aside. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
24 August, 2018.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.