MWD184

This is Mr Eglitis’s (‘the Complainant’) appeal from two decisions of a Rights Commissioner each of which is dated 6 April 2017. The decisions against which the Complainant appeals bear the following reference numbers: R-129185-WT-12 and R-130306-MW-13. The Court heard the appeal in Thurles on 1 May 2018. There was no appearance at the appeal on behalf of the Complainant’s former employer, Ballinalard Transport Limited (In Liquidation) (‘the Respondent’) or on behalf of the Liquidator appointed to wind up its affairs. Similarly, there had been no appearance on behalf of the Respondent before the second of two hearings before the Rights Commissioner. A Solicitor instructed by the Respondent did appear at the first hearing on 3 December 2015. The second day of hearing before the Rights Commissioner took place on 11 January 2017.

The Complainant was employed by the Respondent company as a driver from 9 December 2011 until 5 October 2012. The Complainant appears to have abandoned his employment on the latter date without giving any prior notice of his intention to do so to the Respondent. The within complaints were initiated by the Complainant’s Solicitor using two single Complaint Forms. The first Form was received by the Workplace Relations Customer Services Office (as it was then) on 18 December 2012. The second – which is notification of a claim under the National Minimum Wage Act 2000 only - was received on 5 February 2013.

Appeal from Decision Number R-129185-WT-12

This a claim that the Respondent failed to maintain records as required by Regulation 12 of S.I. No 36 of 2012 (‘the Regulations’) and/or failed to furnish the Complainant with a copy of such records when requested by the Complainant to do so. The Rights Commissioner found that the complaint had been incorrectly referred to him under section 27 of the Organisation of Working Time Act and, on that basis, deemed it to be not well-founded. The Rights Commissioner acknowledged, nevertheless, that the Complainant’s Solicitor had “created and ticked a self-created (sic) box ‘S.I. 36 of 2012’” on the face of the WRC Complaint Form submitted on behalf of the Complainant on 18 December 2012. However, he went on to find that no adjudication hearing pursuant to Regulation 18 of the Regulations had been notified to the parties and that, therefore, he had no jurisdiction to make a decision on the claim as presented.

The Court finds that the Rights Commissioner erred in finding that a complaint pursuant to Regulation 18 of the Regulations was not properly before him. Neither the Single Complaint Form (used prior to the commencement of Part Four of the Workplace Relations Act 2015) nor the Workplace Relations Complaint Form (in its various iterations) in use thereafter are statutory forms. The Court finds that the Complainant’s Solicitor had clearly notified the Rights Commissioner in writing of his intention to refer a complaint pursuant to Regulation 18 of the Regulations and had also apprised the Rights Commissioner of the substance of that complaint i.e. that the Complaint had made a request for a copy of relevant working time records and that the Respondent had failed to comply with its statutory obligation under Regulation 12 of the Regulations to supply those records to him on foot of his request for them. The Court finds, on the basis of the foregoing, that it does have jurisdiction to consider this complaint in the within appeal in relation to the Respondent’s alleged breach of Regulation 12 of the Regulations.

Regulation 12 provides as follows:

• “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).”

It is abundantly clear that the limited documentation supplied by the Respondent in reply to Mr Grogan’s Request for Particulars, dated 17 December 2012, does not satisfy the Respondent’s obligation under Regulation 12(f) to “provide, at the request of the mobile worker, a copy of the record of hours worked by that worker”. In all the circumstances, the Court measures the appropriate compensation payable to the Complainant arising from the Respondent’s failure in this regard to be €1,000.00.

Appeal from Decision Number R-130306-MW-13

Mr Grogan also included in his Request for Particulars dated 17 December 2012 – at paragraph (7) – a request, pursuant to section 23 of the National Minimum Wage Act 2000 (’the 2000 Act’), for a written statement of the Complainant’s average hourly rate of pay between 25 August 2012 and 31 August 2012.

The Complainant’s contract of employment, dated 9 December 2011, provides as follows at clause E):

• “SALARY

  Your salary is €90 per day Gross, (this daily rate includes subsistence payments at a rate of up to but not exceeding the agreed I.R.H.A. Rates). This will be reviewed after an initial trial period of six months. Salaries are available after 12.00 p.m. each Friday.”

The ‘agreed I.R.H.A Rates’ referred to in Clause E) of the Complainant’s contract of employment are those subsistence rates agreed from time to time between the Revenue Commissioners and the Irish Road Haulage Association on foot of an original agreement reached between them in September 1996 in respect of the conditions and guidelines covering the re-imbursement of subsistence allowances free of tax by road haulier firms to road haulier drivers. It appears that in 2012, the rates that applied were those that had been set in 2009 and which varied depending on a driver’s basis gross salary and the nature of the driving activity undertaken on a particular day/night. Those rates varied between €12.57 and €86.05 in 2012.

The Court was not furnished with any documentation by way of a response from the Respondent that could be regarded as complying with the requirements of section 23(4) of the 2000 Act. Accordingly, Mr Grogan referred a complaint under section 24 of the 2000 Act to a Rights Commissioner. That complaint was received on 5 February 2013. The Rights Commissioner deemed the claim not well-founded. The Complainant has appealed that decision.

The complaint under the 2000 Act before this Court on appeal can only relate to a reference period or reference periods, for the purposes of that Act, in respect of which the Complainant requested a statement or statements pursuant to section 23 of the Act. The Court has been informed of only one such request made on behalf of the Complainant by his Solicitor. That request related to the period between 25 August 2012 and 31 August 2012.

The Complainant’s case is that he was contracted to work up to 768 hours in any 16-week period and that he did in fact work 60 hours each week, over 6 days, while employed by the Respondent for which he was paid €90.00 per day in cash. The Complainant submits that he was not provided with payslips at the time but was furnished retrospectively with payslips following the intervention of his Solicitor. Those payslips do not record the number of hours worked by the Complainant in any given week. The Complainant confirmed to the Court that he did not keep a contemporaneous record of the hours he worked.

In the absence of any corroboration of the hours actually worked by the Complainant in the pay reference period relevant to the within claim, coupled with the lack of clarification as to how much of the €90.00 per day he was paid was treated as subsistence, it appears to the Court that the within claim has not been made out. The Court, therefore, finds that the claim is not well-founded but for reasons different to those stated by the Rights Commissioner whose decision is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
18 May 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.