ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009356

Complaint(s):

ActComplaint/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-00011323-003 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011323-004 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011323-005 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00011323-010 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00011323-011 15/05/2017 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-00011323-012 15/05/2017 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-00011323-013 15/05/2017 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-00011323-014 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 CA-00011323-015 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006 CA-00011323-016 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00011323-017 15/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00011323-020 15/05/2017 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-00011323-001 15/05/2017   Date of Adjudication Hearing: 24/11/2017 Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing. The Complainant herein has referred a matter for dispute resolution under Section 7 Terms of Employment (Information) Act, 1994 and Regulation 18 of the European Communities ( Road Transport) ( Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. 36/2012. and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.  

Withdrawn:

The complainant withdrew the following complaints:

CA 00011323- 001, CA 00011323-003, , CA 00011323-004, , CA 00011323-005, , CA 00011323-011, , CA 00011323-012, , CA 00011323-013, , CA 00011323-014, , CA 00011323-015, , CA 00011323-016, , CA 00011323 -017, , CA 00011323-020.

Summary of Complainant’s Case:

CA 00011323 – 003 The complainant states that he regularly worked hours in excess of those allowed by the regulations. He accepts the majority of the information set out by the respondent in relation to start times, arrival times, return times, for the various tours. What he does not accept is that they got regular breaks whilst on the tours. Often, he was forced to work during his breaks, sorting out missing passengers, rosters, organising relief for absent drivers. He didn’t have enough time off the road to do everything required of him and therefore he had to do it during his breaks when on the road. He accepted when questioned that this occurrence wasn’t daily but did happen several times a week. He also accepted that he did request that the respondent give him more hours. He does not accept that he worked on average four days a week. He worked three days on two days off, meaning he could work five days a week. CA 00011323 – 010 He alleges that he did not receive a contract of employment  

Summary of Respondent’s Case:

The respondent is a small family owned business operating coach tours to various destinations on the whole island of Ireland. The company is owned by a husband and wife, (herein after referred to as X and Y) Both owners are based in the respondent’s city centre office and both run the day to day operations of the business, as well as the Office Manager (herein after referred to as Z). The respondent started the business in 2011. The respondent operates tours licensed by the National Transport Authority 361 days of the year to Galway, the Cliffs of Moher, Wicklow & Kilkenny, Belfast and the Giants Causeway. The company benefits from also having an International Operators Licence. The respondent has a Transport Manager herein after referred to as W). The respondent employs tour drivers and also tour guides so that the drivers do not have to perform the dual roles of driving and guiding, there are 2 staff members present on the coach for each tour. Therefore, the driver can concentrate on driving the coach vehicle ensuring the safety of the passengers on the coach, whilst the tour guide provides commentary on the tour and mainly deals with the customer’s needs directly. Sometimes when there is a shortage of available staff a driver will also perform the role of guide. In the industry, this is also known as ‘driver guides’. However, this happens very rarely. By way of comparison, the respondent’s comparators only employ “driver guides”. The respondent is the only company in Ireland that operates national day tours with both drivers and guides. Since the end of 2015 the respondent has engaged contract cleaners to perform the cleaning of the coaches after each tour. By way of comparison, the respondent’s comparators have the driver guides carry out the cleaning of their coach after they return from the day tour at the end of their working day. The respondent is known in the sector for its enhanced terms and conditions of employment for its employees. The complainant commenced employment with the respondent on the 1st April 2015 as a full time, tour driver. By agreement the complainant was engaged as a contract tour driver on the 25th March 2015 and he was then employed with the respondent from the 1st April 2015. The complainant typically worked 4 days per week. Subsequently, by agreement in or around August 2016, the complainant was given the title of Head Guide, which in effect was a role which acted as the liaison person between tour drivers, tour guides and the respondent’s management, and in particular to share with management any issues which the tour guides were having. The role also involved doing the monthly rosters for tour drivers and tour guides, including the complainant’s own roster. The complainant was given a €300.00 per month expenses allowance for performing the said role. By agreement, in April 2017 the complainant passed over this role to another colleague. The complainant handed in his resignation on the 14th May 2017 and he commenced employment with a competitor, 3 days later on the 17th May 2017. The complainant’s last day of work with the respondent was the 14th May 2017. The complainant lodged claims with the Workplace Relations Commission (WRC) dated the 12th May 2017, which were received by the WRC on the 15th May 2017. The complainant was on a daily rate, long tours: €180 per day (gross), short tours: €155 per day (gross). The final month of his employment the rate had increased to long tours €200 and short tours €175. CA- 00011323- 003. CLAIMS UNDER REGULATION 18 OF EUROPEAN COMMUNITIES (ROAD TRANSPORT) (ORGANISATION OF WORKING TIME OF PERSONS PERFORMING MOBILE ROAD TRANSPORT ACTIVITIES) REGULATIONS 2012 – SI 36/2012 – Hours of Work The complainant did not work for more than 6 consecutive hours without a break. (Regulation 8) The complainant’s schedule was the same depending on which trip he was doing and the schedule was as follows: Cliffs of Moher Tour: Start time 6.20am in yard walk around checks of vehicle. Gresham Hotel for 7am, drive from 7am to 9.05am, Obama Service Station, rest stop for 20 minutes (complimentary breakfast), drive from 9.25am to 11am, Cliffs of Moher visitor centre, rest stop for 2 hours (complimentary lunch), drive to Galway 1pm to 3.15pm, rest stop 2 hours, drive to Dublin 5.15pm – 8pm, drive to Merchants Yard, East Wall, Dublin 8.15pm, finished   Northern Ireland Tour Start time 6.20am in yard walk around checks of vehicle, drive to first pick up of passengers on Dame Street for 7am, drive from 7am to 8.15am Castlebellingham Service Station, rest stop for 20 minutes (complimentary breakfast), drive from 8.35am to 9.45am Titanic Experience, rest stop for 2 hours (complimentary food and drinks), drive from Belfast City to Giants Causeway 11.45am – 1.10pm, rest stop 2 hours (complimentary lunch), drive from Giants Causeway to Carrick A Rede Rope Bridge 3.10pm – 3.25pm, rest stop 1 hour 30 minutes (complimentary food and drinks), drive from Rope Bridge to Castlebellingham Service station 5pm – 7.10pm, rest stop for 20 minutes (complimentary food and drinks), drive from Castlebellingham service station to O'Connell Street 7.30pm – 8.30pm, drive to Merchants Yard, East Wall Road,Dublin 8.45pm, Finished   Wicklow / Kilkenny Tour Start time 7.30am in yard walk around checks of vehicle, drive to first pick up of passengers at O'Connell Street at 8.10am, drive from 8.10am – 10.10am Kilkenny City, rest stop for 2 hours 30 minutes (complimentary breakfast / lunch), drive from 12.30pm to 2.10pm Glendalough, rest stop for 2 hours 5 minutes (complimentary food + drinks), drive from 4.15pm – 4.30pm Annamoe Sheep Demonstration, rest stop for 30 mins, drive from 5pm – 6.10pm to Westmoreland Street, drive to Merchants Yard, East Wall Road, Dublin 6.30 pm, finished The complainant was free and was on a rest break when the customers were attending the tourist attraction sites in between the driving times. The above trip schedules are appended which reflect this. The respondent disputes the complainant’s claim that he has worked excess hours. Regulation 5 (‘Working Time’) of Regulations 36/2012 provides that: “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.” Regulation 6 (‘Periods of availability, break times and rest times’) of the said Regulations provides that: ‘Periods of availability, breaks times and rest times shall not be included in the calculation of working time’. The respondent submits that the complainant did not exceed the prescribed working time having taken into account the periods of availability, break times, and rest times. In-fact, the complainant himself continually requested additional hours of work from the respondent. The respondent was conscious of its legal obligations in that regard and continually advised the complainant of this. The respondent informed the complainant as to the lawfulness of his requests, however the complainant did not pay heed to this advice and continued to request more hours of work, which the respondent did not accede to unless it was legally permissible. Furthermore, in October 2015 the complainant was suspended on full pay pending an investigation into issues with the complainant’s tacograph card.   The Transport Managers report showed the complainant was removing his tachograph card from the tachograph reading machine on the coaches on the Galway to Dublin portion of the tour. The complainant was unable to explain why his card was reading incorrectly or how it had come out from the machine. When the complainant was asked to produce his tachograph card for further examination the complainant’s response was that it was not possible because the card was seriously damaged and that he had secured a new card. The complainant was given a written warning for the very serious infractions, the operations manager emphasising that such behaviour if tolerated could jeopardise the issuance of the companies Operators License. The RSA conduct inspections of the respondent’s records a few times a year and there has never been an issue with the respondent’s compliance with same. The respondent takes its legal obligations very seriously which is why the complainant was suspended for infractions with his tacograph in August 2015. The respondent refers to copies of the complainant’s tacograph records from the last year which show that he did not work in excess of working time permissible. The respondent also refers print out of the complainant’s roster and hours of work from November 2016 – May 2017. CA 00011323 – 010 CLAIMS UNDER THE TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 – (Terms and Conditions of Employment) The operations manager emailed the complainant to offer him the position by email dated the 4th March 2015. The letter of offer set out details of his terms and conditions. A copy of the employee handbook was also appended. Copy of the handbook is located in every coach beside the driver. The complainant did not request a specific contract of employment from the respondent until he lodged his claims to the WRC.      

Findings and Conclusions:

CA 00011323 – 003 Based on the documentary evidence submitted, specifically the tacographs and rosters, I am satisfied that the complainant did not work hours, in excess of those set out in the regulations. I do not accept the complainant’s evidence that he was forced to work during his breaks. The respondent employs drivers and tour guides for each tour. The work the complainant stated that he was forced to do, i.e. sorting out missing passenger, taking payments etc. are all done by the tour guides. The reason they are done by the tour guide is to ensure the driver can concentrate on his driving thus ensuring the safety of those on the tour. The respondent company is quite unique in this regard. All other tour companies require the driver to carry out,, not only driving duties, but also those duty that are carried out by the tour guides. The respondent may have assisted the tour guides with their duties from time to time but there was no obligation on him to do so. In all of the circumstances the complaint fails. CA 00011323 – 010 The operations manager emailed the complainant on the 4th March, 2015 to offer him the position. That e-mail contained details in relation to his employment.  A copy of employee handbook was also appended to that e-mail. Copy of the handbook is also located in every coach beside the driver. All of the terms and conditions of the complainant’s employment are set out in that employee handbook. Between the letter of offer and the handbook, all of the complainant’s term and conditions of employment were made known to him. In all of the circumstances, the complaint fails.      

Decision:

CA 00011323 – 010 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. The complaint fails.   CA 00011232 - 003 Regulation 18 of European Communities (road transport) (organisation of working time of persons performing mobile road transport activities) Regulations 2012 – S.I. 36/201 requires that I make a decision in relation to the complaint. The complaint fails.    

Dated:   29/01/2018

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly