Complainant

Respondent

Anonymised Parties

A driver

A hygiene company

Representatives

Complainant

People Matters HR LTD

Act

Complaint/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-00016791-001

13/01/2018

The complainant alleges work in excess of the hours those permitted under the Regulations.

The complainant worked as a driver for the respondent for approximately 5 months. He was expected to commence work between 4am and 5am daily. The routes he was given were so long that he would often be on the road until 4pm to 5pm. On his return he had to offload and reload the van for the next day. One particular route was so long that it often took 15 hours driving to complete. Some weeks he worked 60 hours, for which he received no additional remuneration. When he raised the issue he was met with aggression from his manager. Working these hours had a detrimental effect on his health. The complainant documented the routes on his mobile phone.

During induction carried out by the company the complainant signed that he had received, read and understood the Employee Handbook, Health and Safety Booklet, Drivers’ Booklet and his contract of employment. These documents detail the procedures on making complaints and the complainant did not utilise the procedure at any stage. The Drivers’ Booklet and the Safety Booklet also advise on rest breaks. The respondent tracks all working hours and distances travelled for drivers and in his 22 weeks of employment, the complainant averaged 41.38 hours per week. Hours did increase in the two weeks before Christmas but were maintained within the required limits.

S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 is the relevant legislation in this case. Section 5(1) of the Regulations states;

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

Section 5(5) states;

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

In relation to calculating working time the Regulations under Section 5(6) state;

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

Working time is therefore not solely confined to time driving but, as is the case in this instance, may include time in the yard off-loading or reloading.

Section 12 of the Regulations states;

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;

The respondent emphasised that the complainant had not used the grievance procedure to process any problem he might have had with excessive hours. However, the Regulations require the employer to ensure that the limits specified are not exceeded. To say that the employee did not complain is insufficient to meet this requirement. The respondent should have been more proactive in ensuring that the hours were not excessive. In this regard I note that the respondent broke up one of the routes after the complainant had left. This should have taken place an early date during the employment of the complainant.

In addition, I am not satisfied that the respondent was in compliance with the requirement to 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. It is clear from the evidence submitted that there are variances in the information supplied by the respondent which he cannot adequately explain. The complainant, on the other hand, supplied detailed evidence of his working patterns which I found to be persuasive.

Accordingly, I find that the complaint is well founded.

The complaint in relation breaches of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 is well founded and I order the respondent to pay the complainant the sum of €5,000.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Breach of S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.   Total hours worked, including both driving and loading/unloading excessive.