ADJ-00011220

Complainant

Respondent

Anonymised Parties

A delivery driver

A delivery company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015192-001

21/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00015192-003

21/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015192-005

21/10/2017

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-00015192-006

21/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015192-007

21/10/2017

The respondent has a business delivering electrical appliances and furniture on a contract basis for retailers. On June 12th 2017, the complainant commenced as a driver at a rate of €120 per day. His last day of employment was September 27th 2017, when he said he was informed by the owner in a text message that he was not required the following day. He has not worked since for the respondent and although he was not formally dismissed, he understands that his employment has been terminated.

Having accepted the job on a daily rate of €120, the complainant said that he worked very long hours, sometimes more than 50 hours per week. His main difficulty in the job was that he was required to deliver goods and carry items like fridges, freezers and televisions into houses without any assistance. Around 10 weeks into the job, he hurt his back after a day in which he said he delivered three American-style fridge-freezers. When he asked his employer for someone to help him, he said that he was instructed to phone ahead to the customers and ask them to assist him with the delivery. He said that on occasions, he had to carry items up steps and, in some houses, there was no one capable of helping him.

On August 26th 2017, he said that he said that the pain in his back was so bad that he could hardly move in the cab of the truck. He phoned back to the depot and was informed by the owner’s son that he had to finish delivering the goods that were in the van. He was out work then for four weeks and he submitted medical certs which confirmed that he had a sore back.

When the complainant returned to work on September 26th, he said that the owner told him he would have a helper on the van with him from now on.

The following day, September 27th, before they went out on their deliveries, the complainant and his helper were asked to attend a meeting in the depot. They were informed that the meeting was about customer service.

When they went into the company’s offices, two people that the complainant did not know were at the meeting. It emerged that they were there to discuss the service that the complainant and his colleagues were providing to the customers who had purchased the goods for delivery. At the meeting, the complainant explained to the two visitors that they sometimes have to phone ahead to customers to ask for their help to shift the goods from the van into their houses. When the meeting ended, the complainant and his helper went out and completed their deliveries for the day. In the evening, the helper got a phone call from the owner who he said, told him that an investigation was going on, but he did not specify what was being investigated. Later on, the complainant got a text message instructing him to “stay away tomorrow, you’re not needed.” When he asked for an explanation about why he was not to come to work, the complainant said that the owner said he would contact him the next day.

The following day, the complainant rang the owner, who said that an investigation was going on.   He said that the two people who had visited the depot the previous day were from one of his biggest clients.   He told the complainant that he and his helper had “brought up stuff at the meeting,” which, in his view, should not have been discussed. The complainant explained that when they went into the meeting room, no one told him who the people were and that he didn’t know what company they represented, or even that they were a customer. He was informed that he was suspended with pay with effect from that day, September 28th, with the owner saying that he would get back to him when he knew what the outcome was of the investigation. The complainant said that he asked for a copy of the company’s disciplinary procedure, but didn’t receive it.

The complainant said that he wasn’t rostered for further work and there was no communication from the owner about the disciplinary investigation. When he heard nothing about the investigation and when he wasn’t put back on the roster, the complainant said that he contacted the owner and asked what was happening. He said that the owner said he would contact him when the investigation was finished. On the basis of this uncertainty, and as he had no income, the complainant said that he asked for the payments owed to him in terms of his wages and pay in lieu of holidays. He received a week’s pay in respect of a “back week” worked in June, one week’s pay and one week’s pay in lieu of holidays. His P45 shows that his last day at work was October 4th, indicating that he was employed by the respondent for 16 weeks.

The complaints submitted for adjudication are addressed in the following sections.

The complainant worked for 16 weeks with the respondent, although for four of these weeks, he was out sick with a sore back. On the termination of his employment, he claims that the payment of one week’s pay in lieu of holidays is less than what he was entitled to.

As the respondent did not attend the hearing, the evidence of the complainant was uncontested.

Section 23 of the Organisation of Working Time Act addresses the entitlements of employees at the “cessation” of their employment:

“Where –

(a) an employee ceases to be employed…

the employee shall, as compensation for the loss of that annual leave, be paid by his or employer, an amount equal to the pay, calculated at the normal weekly rate, or, as the case may be, an amount proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The legislation therefore provides for a payment to an employee who has not taken or has not been given all their holiday entitlements when they finish up in a job.   The payment is to be equivalent to the value of the annual leave that they would have received if their employment had not ended.

Section 19 of the Act sets out the entitlements of employees to annual leave and in so doing, recognises the need for different approaches depending on the working hours of employees and the proportion of the leave year they are employed with any one employer.

“…an employee shall be entitled to paid annual leave equal to –

(a) 4 working weeks in a leave year in which he or she works 1,365 hours (unless it is in a leave year in which he or she changes employment),

(b) one third of a working week for each month in the leave year in which he or she works 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if one or more of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In the case of this complainant, he was employed for 16 weeks, and for four of these weeks, he was absent due to illness. As he did not work for 1,365 hours, section (a) above does not apply to him. In accordance with the Organisation of Working Time Act, he is entitled to whichever is the greater of (b) or (c).   Using the method of calculation at (b), one third of a week’s pay for every month in which he worked more than 117 hours, he is entitled to one week’s pay, and this is what he received in lieu of holidays not taken at the date of the termination of his employment.    

The complainant said that he worked for 50 hours a week, and sometimes more than this. As the respondent did not attend, I have to accept this uncontested evidence. Taking account of his absence of four weeks, the total number of hours worked from June 12th until September 27th is a minimum of 560. Considering the application of the method of calculation at (c) above, 8% of 560 is 44.8.

No contract or statement of terms and conditions was issued to the complainant, and he has no information with regard to the number of hours that he was expected to work in return for a standard week’s pay. Based on the general custom in most workplaces, I will assume therefore that a standard working week is a 39-hour week. As he was paid one week’s pay in lieu of holidays, at a minimum, there is a shortfall of 5.8 hours due.

The respondent is to pay the complainant €120, equivalent to one day’s pay, in lieu of the correct amount of annual leave at the termination of the complainant’s employment.   Pay in lieu of holidays is subject to deductions for PAYE, PRSI and USC.

The complainant did not get notice of the termination of his employment and he did not receive pay in lieu of notice.

As the respondent did not attend the hearing, the evidence of the complainant was uncontested.

Having been employed by the respondent for 16 weeks, in accordance with Section 4(2)(a) of the Minimum Notice and Terms of Employment Act 1973, the complainant was entitled to one week’s notice.

Section 8 provides that,

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract without notice because of misconduct by the other party.”

From the evidence of the complainant, it appears that, apart from being informed that he was suspended, a disciplinary procedure was not initiated and he was not dismissed because of misconduct. His employment was terminated when he was not included on the roster of employees working for the respondent. On this basis, he was entitled to notice of the termination of his employment.

The complainant submitted this complaint under the Payment of Wages Act 1991. Section 1 of the Act sets out a definition of Wages:

“wages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b) any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

As he was not given prior notice of the termination of his employment, in accordance with the Payment of Wages Act, the complainant is entitled to be paid in lieu of such notice.

In lieu of the giving of notice of the termination of his employment, the respondent is to pay the complainant €600, equivalent to one week’s pay. Awards under the Payment of Wages Act are subject to deductions for PAYE, PRSI and USC.

The complainant did not receive a written statement of the terms and conditions of his employment.

As the respondent did not attend the hearing, the evidence of the complainant was uncontested.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment.   Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The employee’s start date;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay and, if the minimum wage applies to the employee, the reference period for the purpose of the calculation of the minimum wage;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details about breaks and rest periods;

(n) Details of any collective agreement which affects the employee’s terms and conditions of employment.

Section 2 of the Act provides that an employer is not required to issue a statement of terms and conditions where an employee is employed on a contract for less than eight hours each week and / or where they worked for less than four weeks.   These exclusions do not apply to this complainant. As he did not receive a statement setting out his terms and conditions of employment or a contract containing the information set out above, the respondent has failed to comply with his obligations under Section 3 of the Act.   I find therefore that this complaint is well-founded.

The complainant no longer works for the respondent and it is generally held that, in such circumstances, there is no merit in deciding that a statement of terms and conditions of employment should be issued after the employment has ended. In accordance with Section 7(2)(d) of the Terms of Employment (Information) Act, the maximum that can be awarded in compensation is four weeks’ pay. As the complainant was employed for 16 weeks, I have decided that the respondent is to pay to the complainant compensation of €600, equivalent to one week’s pay. As this award is compensation for a breach of a statutory entitlement, it is not subject to any deductions.

From his evidence, it would appear that, as a delivery driver of a van carrying white goods, the complainant’s job is defined as a “mobile worker” and is governed by the provisions of Statutory Instrument 36 of 2012 which transposes into Irish law the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

The complainant said that he was not notified of the existence of the Regulations or of any employment regulation order or any agreement pertaining to his employment.

The complainant said that he worked long hours and that he did not get daily rest breaks in accordance with the requirements of SI 36/2012.

As the respondent did not attend the hearing, no evidence was presented to challenge the complainant’s assertion that he was not notified of the existence of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

Regulation 11 of SI 36/2012 states:

“An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered 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.”

The complainant said that he was not notified of the existence of the Regulations or of any regulations or agreements pertaining to his employment. The purpose of notifying employees of the Regulations is to make them aware of the maximum working hours they are permitted to work, their entitlement to breaks, the limitations on driving at night and various other protections that apply to workers in the transport sector. Because he was uninformed with regard to the Regulations, he said that he worked long hours and did not get rest breaks.

There is no evidence that the respondent complied with Regulation 11, or indeed of any of the Regulations contained in the statutory instrument. As he did not attend the hearing to challenge and contradict the complainant’s evidence, I find that this complaint is well-founded.

In accordance with Regulation 18(3), where I find that a complaint is well-founded, I can require the respondent to comply with the provisions of the Regulations that have been contravened and / or I can make an award of compensation of up to 104 weeks’ pay. While there is definite merit in requiring the respondent to comply with the Regulations, it provides no relief to this complainant. I therefore make an award of €1,200 equivalent to two weeks’ pay.   As this award is compensation for a breach of a statutory entitlement, it is not subject to any deductions.

Summary of Decisions

Complaint ref.

Legislation

Award

CA-00015192-001

Complaint Under the Organisation of Working Time Act 1997

€120 gross, subject to normal deductions.

CA-00015192-003

Complaint under the Payment of Wages Act 1991

€600, subject to normal deductions

CA-00015192-005

Complaint under the Terms of Employment (Information) Act 1994

€600, not subject to deductions

CA-00015192-006

Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

€1,200, not subject to deductions.

CA-00015192-007

This complaint under the Terms of Employment (Information) Act 1994 is the same as complaint CA-00015192-003. Therefore, the decision under CA-00015192-003, is in respect of the two complaints

Mobile workers, hours of work, statement of terms and conditions of employment