RTD182

He submitted a complaint to the Workplace Relations Commission on 27 July 2017 in which he claimed that, in breach of theEuropean Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012he worked an average of 65 to 70 hours per week. He further claimed that he rarely received the statutory breaks to which he was entitled under the 2012 Regulations.

Mark Lonergan Transport Limited responded that it complied with all of its obligations under the 2012 Regulations and rejected Mr Houston’s claims.

On 17 November 2017 the Adjudication Officer, having given both parties an opportunity to be heard on the matters at issue decided as follows

Decision

Section 41(4) of the Workplace Relations Act 2015 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 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. CA-00012812-007 - I find that the complaint is not well founded and fails. CA-00012812-009 - I find that the complaint is not well founded and fails.

The Complainant appealed against that decision to this Court on 29 December 2017.

The appeal first came before the Court on 1 May 2018. Having heard initial submissions from both sides the Court adjourned to allow the Respondent produce evidence from an expert witness that was pertinent to the matters at issue.

After the hearing the Court was advised by the Respondent’s representatives that it had gone into liquidation and that it would no longer be participating in the hearing. The Court sought details of the appointed liquidator so as to notify her/him of the time and date of the proposed resumed hearing.

At that point the Respondent’s representative notified the Court that the Company had not gone into liquidation and that the Respondent would be participating in the hearing.

The hearing resumed on 10 July 2018.

The Complainant’s Case

Mr Houston told the Court in evidence that the digital tachograph in the vehicle he was assigned to drive defaulted to “rest” when the motor idled or was turned off but the battery was engaged. He said that the normal practice is that the tachograph defaults to other work rather than to rest.

He said that by so defaulting to rest the tachograph recorded periods of work as periods of rest. He said that for that reason the tachograph records could not be relied upon as an accurate record of the time he spent at work and the time he spent resting.

He said that he normally worked between 60 to 70 hours per week. He said that he also rarely received a break as set out in the regulations. He said that he was expected to take his break while waiting to be loaded or unloaded or while queuing.

He said that he was under constant pressure to complete journeys within very tight parameters. He said that he was constantly being sent sms messages seeking updates on his whereabouts and requiring him to complete journeys and loads in a manner that made it impossible to take the statutory breaks to which he was entitled.

He said that by defaulting to rest in the manner in which it did, the tachograph gave a false record of his hours of work and hours of rest. He said that an analysis of the records submitted by the Respondent demonstrates the frequency with which he was allegedly resting when in fact those alleged occasions of rest were in fact periods of work. He cited examples from the records.

The Respondent’s Case

Mr Alan Nugent gave evidence for the Respondent. Mr Nugent is an expert in the analysis of tachograph records. He said that he reviewed the records adduced by the Respondent and found that they did not disclose an infringement of the Regulations. He told the Court that he did not examine the tachograph in the truck driven by the Complainant but had in fact confined his analysis to a review of the records generated by that tachograph. He said he could not comment on whether the tachograph defaulted to rest or other work as he had not examined it as part of his technical review.

He said that the Complainant had an option of resetting the tachograph to other work if it was defaulting to rest and that it was his duty under the regulations to do so in such circumstances.

Mr Mark Lonergan gave evidence to the Court. He said that he managed the company and that he complied with all statutory requirements placed on him by the regulations. He said that the consequences of not doing so were too severe to ignore and that it was both his policy and his practice to comply with all statutory obligations placed upon him.

He said that he occasionally drove the truck driven by the Complainant. He said that the tachograph operated normally and within the statutory regulations. He said that the Complainant availed of his breaks and was scheduled to work in accordance with the Regulations. He said that he managed the Company but did not put excessive pressure on his drivers, including the complainant, to complete loads. He said that he kept in touch with his drivers through sms message and that he was entitled to establish their whereabouts and set time parameters for each of the runs assigned to drivers. He said that this was necessary to ensure the timely delivery to customers. He said that the Complainant complained on only one occasion of a defect to the vehicle which he said was repaired within 48 hours. He said that no complaint regarding the operation of the tachograph was brought to his attention by the Complainant while he worked for the Respondent.

The Law

The relevant regulations in this case are the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 which in relevant part state:-

Regulation 5 - Working Time

The Complainant submits that the Respondent infringed Regulation 5. It states,

5. (1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed—

(a) a working time of more than 60 hours in a week,

(b) an average weekly working time of 48 hours in any reference period.

(2) The average weekly working time of a person during a reference period shall be determined according to the formula—

(A+B)/C

where—

A is the aggregate number of hours comprised in that person’s working time during the course of the reference period;

B is the number of excluded hours during the reference period; and

C is the number of weeks in the reference period.

(3) In this Regulation “excluded hours” means hours comprised in—

(a) any period of annual leave taken by the person in accordance with the Organisation of Working Time Act 1997 (No. 20 of 1997) (save so much of it as exceeds the minimum period of annual leave required by that Act to be granted to the mobile worker),

(b) any absences from work by the person authorised under the Maternity Protection Act 1994 (No. 34 of 1994), the Adoptive Leave Act 1995 (No. 2 of 1995), the Parental Leave Act 1998 (No. 30 of 1998), or the Carer’s Leave Act 2001 (No. 19 of 2001), and

(c) any period of sick leave taken by the person.

(4) For the purposes of paragraph (2), the number of hours in a whole day shall be 8 and the number of hours in a whole week shall be 48.

(5) An employer shall ensure that the limits specified in paragraph (1) are complied with in the case of each mobile worker employed by him or her.

Regulation 6 - Periods of availability, break times and rest times

6.Periods of availability, break times and rest times shall not be included in the calculation of working time.

Regulation 8 - Breaks for work

8.(1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

(4) Each break may be made up of separate periods of not less than 15 minutes each.

(5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

Section 12 - Obligations on employer

12: 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).

Findings of the Court

The Court is faced with a conflict of evidence in this case. The Complainant states that the tachograph defaulted to rest and as a consequence that the records relied on by the Respondent do not accurately record his working time within the meaning of the regulations. The Respondent denies this.

The Court has examined the tachograph records submitted by the Respondent and finds that they are consistent with the evidence of the Complainant and not with that of the Respondent. The Court further finds that the respondent was given an opportunity by the Court to have the tachograph in question examined by a technical expert and adjourned for that purpose. The expert however did not examine the tachograph and offered no evidence with regard to the manner in which it operated.

On this basis the Court finds that the evidence of the Complainant is consistent with the documents produced in evidence and accordingly the Court finds it more reliable than that of the Respondent. The Court therefore prefers the evidence of the Complainant over that of the Respondent.

In the absence of reliable records the Court finds that the evidence of the Complainant regarding the length of his working week and the failure to provide him with his statutory breaks while at work has not been rebutted in evidence by the Respondent.

The Respondent’s evidence related to an analysis of the unreliable records of the tachograph by Mr. Nugent and Mr. Lonergan’s personal experience of driving the relevant truck. He also relied on the impugned records in relation to the Complainant’s breaks and the length of his working week. As these records are not reliable the Court is faced with the fact that the Complainant’s evidence has effectively gone unchallenged.

On that basis the Court accepts the Complainant’s evidence and decides that the complaints are well founded.

Remedy

The importance of properly rested drivers of heavy goods vehicles cannot be overstated. Drivers are entitled to a work environment in which their health and safety is protected so as to ensure that the quality of their lives is not compromised by excessive work demands that undermine it over time. Furthermore drivers, other road users and the general public are put at grave risk of injury and indeed death where accidents happen as a result of driver fatigue. It is to protect against such consequences that the European Union has enacted these regulations. Breaches of the regulations therefore cannot be treated lightly.

In this case the Court has found that there were breaches of the regulations. The Court also finds that the Complainant did not notify the Respondent of the difficulties he was experiencing with the tachograph. In these circumstances, the Complainant is somewhat responsible for the production of the inaccurate records of his working time and rest periods.

In that context the Court has decided that the appropriate compensation in this case is €2500 in respect of each of the complaints before it and decides accordingly.

Determination

Complaint refCA-00012812-007

The Court decides thatis well founded, sets aside the decision of the Adjudication Officer and orders the Respondent to pay the Complainant compensation in the sum of €2,500.

Complaint ref CA-00012812-009

The Court decides that complaint ref CA-00012812-009 is well founded, sets aside the decision of the Adjudication Officer and orders the Respondent to pay the Complainant compensation in the sum of €2,500.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
21 August 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.