ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00001073

Parties:

Complainant    Anonymised Parties   Respondent

Representatives Ciara McPhillips Barry Healy & Company  

Complaint(s):

ActComplaint/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-00001497-001 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00001497-002 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00001497-005 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00001497-006 15/12/2015 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-00001497-007 15/12/2015 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-00001497-008 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00001497-009 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00001497-010 15/12/2015 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00001497-011 15/12/2015 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-00001497-012 15/12/2015  

Date of Adjudication Hearing: 20/07/2017 Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure: In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977; following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background: The Complainant was employed as a Lorry Driver from 1st March 2015 to 17th August 2015, where following a workplace accident he terminated his employment alleging constructive dismissal due to the alleged attitude of the Respondent in responding to issues in relation to the Complainant’s employment arrangements. Specifically, the Complainant maintains that the Respondent failed to meet its obligations under the Minimum Wage Act 2000; failed to provide Sunday working premiums; breached its obligations in relation to weekly work hours and intervals at work breaks; that due to its lack of response to the Complainant that the Respondent’s behaviour amounted to a constructive dismissal; that the Respondent failed to provide the Complainant with written notice of his conditions of employment; and that the Respondent failed to notify the Complainant of the provisions of the Mobile Road Transport Activities Regulations 2012. The Complainant was paid €100 per day.

Summary of Complainant’s Case:CA-00001497-001 Complaint under section 24 of the National Minimum Wage Act, 2000 The Complainant maintained that he was employed to work a 10.5-hour day for five days a week where he worked Monday, Tuesday, Thursday and Friday, and either a Wednesday or a Sunday on alternate weeks.   The Complainant maintained that he was paid €100 per day, and he would have received his weekly pay of €500 where €300 of this was in cash left in the Cab of the lorry, and €200 would be paid into his bank account. He was required to start work each day at 4:30pm, complete a run from his place of work, to Dublin, Limerick, Ennis, Galway, Sligo and back to the depot. On occasion, he had additional stop off points. The Complainant maintained that on average his daily run varied from 13 to 15 hours per day. He maintained that he was also required to follow certain routes to avoid detection on his tachograph, and this added time to his route.   The Complainant submitted that he would have worked between 52 to 65 hours per week, but was only paid €500.   The Complainant contended he was therefore paid below the minimum wage.   Furthermore, the Complainant contended that the payroll records submitted by the Respondent was not credible as it did not have him recorded as working on 5th August 2015, yet this was a day he was involved in a single vehicle accident when driving for the Respondent, and an incident that is recorded as a matter of fact separately.   CA-00001497-002 Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant maintained that he worked every second Sunday but did not receive a Sunday premium in accordance with Section of the Organisation of Working Time Act 1997.   CA-00001497-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant initially complained that he did not receive his annual leave entitlement. This complaint was withdrawn.   CA-00001497-006 Complaint under section 27 of the Organisation of Working Time Act, 1997 The Complainant initially complained that he did not receive his Public Holiday entitlements. This complaint was withdrawn.   CA-00001497-007 Complaint 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         The Complainant submitted that he was regularly required to drive 52-65 hours per week and where he would have been driving for thirteen to fifteen hours a day. He stated that he would be required to deliver to a location at a particular time but his delivery was not always met which incurred further driving. He further maintained that his hours of driving were not always properly recorded on his tachograph. He maintained he was required to drive on minor roads to avoid detection.     CA-00001497-008 Complaint 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 The Complainant advised that he was not permitted rest breaks when driving. He maintained if he took breaks he would have been put under pressure by the Respondent as this impacted on his delivery time, particularly as he would have been driving from late evening to make his deliveries, and during the night to return to his base after deliveries were made.   CA-00001497-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977 The Complainant maintained that as a result of what he experienced, including being involved in an accident on 5th August 2015, and how the Respondent failed to address his concerns, he had no option but to resign. He maintained the trust in the working relationship was fundamentally breached by the Respondent’s unreasonable instructions, lack of safety concerns, lack of adherence to road transport regulations, and failure to pay him correctly. He argued that this amounted to Constructive dismissal.   CA-00001497-010 Complaint under Section 7 of the Terms of Employment (Information) Act, 1994 The Complainant maintained that he was never provided with any written terms and conditions of employment. He contended that the contract of employment provided by the Respondent in it’s written submission was never provided to him, and he never signed the contract that was submitted to the hearing. He also maintained that he started employment on 1st March 2015 and not the 4th May 2015 as submitted by the Respondent. The Complainant maintained that he responded to a FAS advertisement in February 2015, and on 22nd February 2015 he was offered a full-time position and he stared on 1st March 2015.   CA-00001497-011 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The Complainant maintained that there was changes to his work practices regarding his driving route and hours of work and he was not notified in writing of these changes.   CA-00001497-012 Complaint 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 The Complainant submitted that he was he was not notified of the Statutory Instrument contrary to section 11 of the Regulations.  

Summary of Respondent’s Case:CA-00001497-001 Response to Complaint s section 24 of the National Minimum Wage Act, 2000 The Respondent submitted records that the Complainant was paid €200 per week and where it recorded an average of two days working per week from 4th May to 10th July, and then recorded only two day’s work for the period 16th July to 10th August.   CA-00001497-002 Response to Complaint under section 27 of the Organisation of Working Time Act, 1997 The written submission provided by the Respondent included the Clockings and Totals Report for the period that it maintained the Complainant was in employment. This report does not record that the Complainant worked on a Sunday.   CA-00001497-005 Response to Complaint under section 27 of the Organisation of Working Time Act, 1997 It is noted that this complaint was withdrawn.   CA-00001497-006 Response to Complaint under section 27 of the Organisation of Working Time Act, 1997 It is noted that this complaint was withdrawn.   CA-00001497-007 Response to Complaint 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 The Respondent failed to provide a response to this complaint.   CA-00001497-008 Response to Complaint 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 The Respondent failed to provide a response to this complaint.   CA-00001497-009 Response to Complaint under Section 8 of the Unfair Dismissals Act, 1977 The Respondent submitted that the Complainant did not work for a 12-month period and therefore did not qualify for compensation under the Unfair Dismissals Act, 1977   CA-00001497-010 Response to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent failed to provide a response to this complaint.   CA-00001497-011 Response to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent failed to provide a response to this complaint.   CA-00001497-012 Response to Complaint 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 The Respondent failed to provide a response to this complaint.    

Findings and Conclusions: CA-00001497-001 Findings in Relation to Complaint under section 24 of the National Minimum Wage Act, 2000 In accordance with Section 8(1)(b) of the National Minimum Wage Act, 2000, as amended, for the purpose of determining whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act,… “working hours” means…the total hours during which the employee carries out or performs the activitiesof his or her work at the employee’s place of employment, or is required byhis or her employer to be available for work there and is paid as if theemployee is carrying out or performing the activities of his or her work.   The Complainant submitted that he worked for an average 13 hours, five days a week, that is 65 hours per week. The Respondent submitted that the Complainant’s time records two days’ work per week amounting to an average of 20 hours per week.   Based on the evidence submitted I am satisfied that the Respondent’s records do not appear to be credible. The Complainant has been consistent in his correspondence that he commenced work on 1st March 2015, where he worked five days a week, and where his average time of work was 13 hours per day. The Respondent’s time sheets only show on average two days per week, and in the absence of any note of the Complainant’s actual rate of pay in his contract of employment it is not possible to make a credible calculation of the actual rate of pay based on the Respondent’s records. Furthermore, the Complainant is not recorded as working by the Respondent in its Clockings and Totals report on the day when he was involved in a single vehicle accident, a day he was actually working. This therefore raises credibility in relation to the Respondent’s submission   Based on the calculations provided by the Complainant, as I find them more credible, I find that his average hourly rate of pay for 13 hours work was €7.69 per hour which amounts to a shortfall of €0.96 per hour below the minimum wage, which was €8.65 per hour at the time the Complainant was employed by the respondent. This amounts to an average shortfall of €62.40 per week.   CA-00001497-002 Findings in Relation to Complaint under section 27 of the Organisation of Working Time Act, 1997 Section 14(1) of the Organisation of Working Time Act, 1997 as amended, requires that an employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by either the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or by a combination of two or more of the means referred to above.   As I have found the reports submitted by the Respondent do not appear accurate I therefore find their evidence less credible than the Complainant’s and accordingly find that the Complainant did work every other Sunday, i.e. approximately 11 Sundays, but he did not receive a Sunday premium for working on average 13 hours for 11 Sundays amounting to some 143 hours Sunday work over the period he was in employment.   CA-00001497-005 Findings in Relation to Complaint under section 27 of the Organisation of Working Time Act, 1997 As this complaint was withdrawn I do not find against the Respondent   CA-00001497-006 Findings in Relation to Complaint under section 27 of the Organisation of Working Time Act, 1997 As this complaint was withdrawn I do not find against the Respondent   CA-00001497-007 Findings in Relation to Complaint 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 Section 5 of the Regulations requires that a person performing mobile road transport activities shall not exceed a working time of more than 60 hours in a week, and an average weekly working time of 48 hours in any reference period. In light of the lack of credibility of the Respondent’s records I find that in the Complainant case, he was working an average 65 hours per week, and driving in excess of 58 hours per week. I therefore find that contrary to Section 5(5) of the Regulations, the Respondent failed to ensure that the limits specified above were complied with in the case of the Complainant.   CA-00001497-008 Findings in Relation to Complaint 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 Section 8. of the Regulations require that no person performing mobile road transport activities shall work for more than 6 consecutive hours without a break; 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; 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. Section 8 further requires that each break may be made up of separate periods of not less than 15 minutes each, and that an employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.   I find that contrary to Section 12(a) of the Regulations the Respondent failed to provide any information to the hearing of a record of the working pattern of the Complainant in relation to driving and breaks. On that basis, I am satisfied on the balance of probability that the Respondent did not provide Complainant with the opportunity to take his statutory breaks and failed to record same as is required in the Regulations.   CA-00001497-009 Findings in Relation to Complaint under Section 8 of the Unfair Dismissals Act, 1977 In accordance with Section 2 of the Unfair Dismissals Act, 1977 as amended, the Complainant must have at least one year’s continuous service with the employer to qualify for protection under the Act. I find that the Complainant has not less than one year’s continuous service and therefore do not find that the Respondent has breached the Act.   CA-00001497-010 Findings in Relation to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment. Based on the evidence provided I am satisfied that the Respondent did not provide the Complainant with a statement in writing containing particulars of the terms of the employee’s employment within two months of starting his employment. I am not satisfied the contract of employment presented by the Respondent in its written submission was ever provided to the Complainant or that the Complainant ever signed the contract as was submitted by the Respondent. I therefore find that the Respondent failed to meet its obligations under the Act. CA-00001497-011 Findings in Relation to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Section 5(1) of the Act requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…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 1 month after the change takes effect.   The Complainant has maintained that not only did the Respondent fail to provide him with a written statement of his terms and conditions of employment, but also that he was not provided in writing of the changes that he was required to make in his hours of work and duties regarding hours of driving.   I find that the Complaint has not been specific in identifying any actual changes that occurred other than to state that from the outset his conditions required him to drive and work excessive hours and where changes in his hours of duty and driving route could change regularly. In the absence of the specific changes required I do not find against the Respondent on this occasion. Notwithstanding I have found that from the outset of the Complainant’s commencement of employment that the Respondent had failed to provide the Complainant with details of his overall terms of employment in writing, and this lack o clarity of what was required as part of the Complainant duties appears to have continued until he resigned on 17th August 2015.   CA-00001497-012 Findings in Relation to Complaint 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 Section 11 of the Regulations requires that an employer of a mobile worker shall notify the worker of the provisions of the Regulations, and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker, and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.   I find that the Respondent failed to meet these obligations and did not notify the Complainant of the provisions of the Regulations, or whether any collective agreement, employment regulation order or registered employment agreement was application to the Complainant. As the Regulations were not provided, nor were they made available to the Complainant for inspection at all reasonable times.

Decision: Section 41 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 of the Unfair Dismissals Acts, 1977 – 2015 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-00001497-001 Decision in Relation to Complaint under Section 24 of the National Minimum Wage Act, 2000 Section 26. (1) of the National Minimum Wage Act, 2000, as amended, requires that I make a decision in relation to a dispute in respect of the entitlements of an employee under section 41 of the Workplace Relations Act 2015. In making such a decision I may make a direction to the employer to pay to the employee an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with the Act in respect of the period to which the dispute relates, and reasonable expenses of the employee in connection with the dispute. I may also direct a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or both such direction and such requirement, as I consider appropriate.   Based on the calculations provided by the Complainant, as I find these calculations more credible, I direct that the Respondent pay the Complainant arrears of €105 per week for 23 weeks from 1st March 2015 until 5th August 2015, theses arrears amounting to €2,415. I also determine that the Respondent is to make these payments within 42 days from the date of this decision.   CA-00001497-002 Decision in Relation to Complaint under section 27 of the Organisation of Working Time Act, 1997 As I have found that the Complainant had worked every other Sunday and was not in receipt of a Sunday premium I declare that the complaint is well founded and in accordance with Section 27of the Act require the Respondent to pay to the Complainant compensation of €500, where I view this amount as being just and equitable as it equates to over a third of the basic hourly rate of pay he received when working on Sunday’s.   CA-00001497-005 Decision in Relation under section 27 of the Organisation of Working Time Act, 1997 This complaint was withdrawn.   CA-00001497-006 Decision in Relation to Complaint under section 27 of the Organisation of Working Time Act, 1997 This complaint was withdrawn.   CA-00001497-007 Decision in Relation to Complaint 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 Under Section 18 of the Regulations, as I find that the Respondent has breached the working and driving hours of the Complainant I declare the complaint is well founded. The fact that the Clockings and Timing records submitted by the Respondent are at such a variance to the hours submitted by the Complainant, as the Respondent did not attend the hearing, and in light of the excessive working and driving hours being required by the Complainant, I therefore require the Respondent to pay the Complainant compensation of 20 weeks’ pay, amounting to €10,000 (subject to any lawful deductions) as being just and equitable having regard to all of the circumstances.   CA-00001497-008 Decision in Relation to Complaint 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 Under Section 18 of the Regulations, as I find that the Respondent has breached the requirement to provide the Complainant with rest breaks as per Section 8 of the Regulations, and failed to provide to the hearing a record of such breaks in accordance with Section 12 of Regulations, I declare the complaint is well founded. I therefore require the Respondent to pay the Complainant compensation of €1,000 as being just and equitable having regard to all of the circumstances.   CA-00001497-009 Decision in Relation to Complaint under Section 8 of the Unfair Dismissals Act, 1977 As the Complainant does not qualify for protection under the Act, having only six and a half months service, I do not uphold this complaint.   CA-00001497-010 Decision in Relation to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of his conditions of employment.     I therefore order the Respondent to pay to the Complainant compensation of four weeks remuneration amounting to €2,000 where having regard to all the circumstances consider this amount to be just and equitable.   CA-00001497-011 Decision in Relation to Complaint under section 7 of the Terms of Employment (Information) Act, 1994 In accordance with Section 7 of the Act I find that the complaint is not well founded and therefore falls.   CA-00001497-012 Decision in Relation to Complaint 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 Under Section 18 of the Regulations, as I find that the Respondent has breached the requirement to notify the Complainant of the provisions of the Regulations or keep available for inspection at all reasonable times a copy of these Regulations in accordance with Section 11, I declare the complaint is well founded. I therefore require the Respondent to pay the Complainant compensation of €500 as being just and equitable having regard to all of the circumstances.  

Dated:   3rd January 2018        Workplace Relations Commission Adjudication Officer: Gerry Rooney  

Key Words: National Minimum Wage, Sunday Premium, 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, Unfair Dismissal, Terms of Employment (Information) Act