Complainant

Respondent

Anonymised Parties

A Transport Co-Ordinator

A Haulage Company

Representatives

Julie Breen Julie Breen Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012868-001

31/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012868-002

31/07/2017

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

CA-00012868-003

31/07/2017

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

CA-00012868-004

31/07/2017

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

CA-00012868-005

31/07/2017

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

CA-00012868-006

31/07/2017

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

CA-00012868-007

31/07/2017

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

CA-00012868-008

31/07/2017

The complainant withdrew claim CA 12868-008.

The Claimant sets out his position hereunder further to the complaint lodged with the Workplace Relations Commission on the 31st July 2017.

The Claimant herein entered into an agreement with the Respondent employer in March 2016 and a contract of employment was signed thereafter. The Claimant began working for the Respondent on the 12th day of March 2016. The Claimant was employed as a transport coordinator, overseeing [a specific food delivery contract] around Ireland. The terms and conditions of his employment were agreed, in part, over the phone with a director of the Respondent company.

The Claimant began working for the Respondent employer on or about the 12th March 2016 and the Claimant was unfairly dismissed from his employment without notice, on the 10th April 2017. The Claimant received a P45 relating to his employment with the Respondent company, which stated that his end date was the 10th April 2017. The Claimant’s date of dismissal is the 17th April 2017, taking account of the applicable statutory notice period.

The Claimant had previously been employed by a different transport company and he was working on a specific food delivery contract. When the Respondent employers won that specific food contract they contacted the Claimant and asked that he work for them as a Transport Coordinator. It was explained to the Claimant that older of the two directors would be the Transport Manager and, as such, he would have ultimate responsibility for operations but that the Claimant would provide the older director with some on-the-job training.

The Claimant was aware that the role of Transport Coordinator was an office based position and he asked that he would have an option to become a delivery driver after the initial set-up period of one year. This request was agreed to and the Contract of Employment was signed.

The Claimant was never furnished with a copy of his Contract of Employment or with a copy of the Company Handbook. The Claimant signed the Contract of Employment but noted that it was vague and ambiguous on certain matters. For example, the Claimant recalls that the section pertaining to wages was left blank and had been marked to read “as agreed” in pen. The Claimant recalls that other matters on the said Contract were also marked “as agreed”.

The Claimant was never told what hours would be expected of him daily and he was never given a roster or schedule so that he would get days off on a weekly basis. Accordingly, during the course of his employment with the Respondent, the Claimant was given very little time off. During any time off that the Claimant took, whilst in the employ of the Respondent, he was always on call and on many occasions, he ended up having to go into work.

The Claimant would receive calls at any time of the day or night and he would be expected to deal with matters forthwith.

The younger director, Transport Manager was based in Ballinrobe, Co. Mayo and he spent the first six weeks of the specific food delivery contract in Wexford, thereafter returning to Mayo. When he was leaving, the Claimant asked about time off and he suggested to him that perhaps he (the Claimant) could work for ten consecutive days and then have four days off. He made this suggestion on the basis that it would be easier for the director to spend four consecutive days in Wexford every second week as opposed to two days every week. The director was not agreeable to this. He initially told the Claimant to ‘take Sundays off’. The Claimant tried to do this but it proved impossible as Sunday is the busiest day of the week in this particular industry.

The Claimant had to work and/or be on call 24/7 for almost the entire period of his employment with the Respondent employer, with little or no assistance from the Transport Manager.

Along with the daily office functions, the Claimant often had to do night delivery runs around Ireland in circumstances where a driver phoned in sick or was otherwise unavailable. The Claimant would do these deliveries through the night and often come back to the depot to oversee the morning deliveries. On some occasions, if everything was under control, he would go home for a few hours first.

The Claimant would often receive calls in the middle of the night and/or would find himself in a situation where he had to take action because he couldn’t contact a mechanic. In one particular instance, he was called upon to fix lights on one of the lorries because no mechanic was available to so. The Claimant is not a mechanic and he received no support from the Transport Manager, who should have actually been dealing with such matters.

In or around January 2017, the Claimant was given extra paper work to do on top of his already very significant workload. He was asked to handle all the drivers CPC certs, for example. This is a task that should have been carried out by the Transport Manager.

In or around this time the Claimant began to feel very stressed and overwhelmed at work and he contacted the head office and spoke with the Transport Manager on numerous occasions about his need for regular days off. The response from the director, (Transport Manager) was that the job was 24/7. He also discussed his workload with the younger director on a number of occasions, to no satisfaction.

The Claimant attended his GP as he was suffering from a chest infection. He was certified as being unfit to work for a week due to this infection. Notwithstanding the medical certificate, the Claimant felt he had no option but to return to work after a couple of days.

On or about the 29th day of March 2016, the Claimant arranged a meeting with the older director,   to discuss the matters that were causing issue including but not limited to time off and daily timetable, the chain of command, inadequate cover and dealing with mechanics. The older director said that he would revert to the Claimant on these issues.

On the 3rd April 2016, an unplanned meeting took place between the two directors and the Claimant. The Claimant had just returned from delivery duties in West Cork and was shunting trailers in preparation for that day’s delivery when they arrived at the depot. The younger director insisted that they have a meeting straight away. The Claimant was exhausted and hadn’t eaten anything, having just returned from his round trip to Cork.

At this meeting the Claimant brought up the question of time off. The younger director told the Claimant that he (the Claimant) was the ‘manager’ and that, as a result, he could not have any time off. He was expected to work and/or be on call 24/7. He indicated to the Claimant that he would cover the Claimant’s annual leave but he would not cover weekly time off. The Claimant indicated that he could not sustain the level of work that he had been doing without any time off. At this juncture, the younger director produced a prepared letter of resignation and asked the Claimant to sign it. The younger director told the Claimant that he would have to resign from his position of Coordinator and receive his P45. Thereafter, he would be re-hired as a driver.

The Claimant refused to sign this letter of resignation and reiterated his position, which was that he did not wish to leave the organisation but rather he hoped to resume the role of delivery driver. When the Claimant refused to sign the letter of resignation, the younger director asked for his phone and keys.

The Claimant attended for work as a driver on Tuesday, 4th through to Saturday 10th April 2017. On Wednesday, 5th April, the younger director offered the Claimant fixed runs, five nights per week. The Claimant explained that he would have preferred something more flexible but that he would have a think about it. He received a call the next day as the younger director stated that he needed a decision. The Claimant said that he would do the run on an interim basis until they could find somebody permanent for the role. The Claimant was reluctant to jump straight into this role without any time off. The younger director said that he would be sent his P45 and that he must resign and be re-hired by the company. The Claimant said he did not want to resign.

The Claimant received his P45 having not heard anything more. As set out above, the Claimant was unaware that he had been dismissed from the Respondent company prior to receiving his P45.

The Claimant respectfully submits that he was dismissed from the Respondent employer’s company, without notice or cause. The Claimant was unfairly dismissed.

The Claimant did not receive any payment for the statutory minimum notice period of one week.

The respondent is a haulage company engaged in the delivery of a specific food product on behalf of its client.

The Claimant was based at the [premises] in Wexford where the Respondent has a permanent operation base delivering bulk loads. Approximately 30 staff are employed in the operation in Wexford, the vast majority of whom are drivers. Most of the deliveries are done in the latter half of the working day with loads leaving in the afternoon for evening for delivery to the various depots across the country.

The Claimant commenced work with the respondent on 12th March 2016 in the capacity of Transport Co-Ordinator and confirmed his resignation from his employment on 3rd April. Having given a week’s notice, his employment terminated on 10th April 2017.

On joining in March 2016, he was issued with a copy of the Respondent’s Terms and Conditions of employment. He signed this document on 6th April 2016 and was given a copy to retain for his records. The company’s various policies are contained in a comprehensive Employee Handbook which contains a grievance procedure.

The Transport Co-Ordinator’s role is a static role – based in the yard of the bakery. Driving duties are supposed to be very occasional and confined to filling in for drivers who are absent at little or no notice. He was responsible for rostering the drivers and allocating runs to them as required. He was also responsible for recruitment of drivers. One of his key responsibilities was to administer the recruitment process for drivers. He was responsible for maintaining employee records, including his own, which he kept in a secure filing cabinet in his office. He was familiar with the full suite of documentation that pertained to employment within the company.

The respondent, along with other staff, was required to work Sundays as a matter of routine – it’s the start of the working week and is a busy day with a full schedule of deliveries. Compensation for working Sundays is expressly included in his salary as detailed in his statement of terms and conditions of employment and in the company handbook. 5hte claimant’s weekly rest day was a Saturday.

The Respondent uses tachograph data and truck tracking data to compile records of working time. In effect, the tachograph is the time clock. Each truck is fitted with an electronic tachograph and each driver is issued with their own card which they insert at the start of a run and remove at the end of it. The taco automatically records information on driving time. Other forms of work such as loading and unloading and paperwork are recorded when they are input by the driver who is obliged in law to accurately record them on the tachograph.

Payment for drivers is based on pre-set times for each run which are computed to allow for the journey to and from each delivery point plus additional time for loading and unloading at base and at the delivery depot and the completion of associated paperwork. An additional 15 minutes is also allowed for unforeseen delays. Most of the work happens in the later part of the day and finishes in the late evening. Drivers normally complete their runs in less time than allowed.

Since the claimant’s resignation, the Respondent has been the subject of inspections by the Road Safety Authority, The Health and Safety Authority and, more recently, the Workplace Relations Commission. No significant breaches of regulations were found by any of the three inspectors.

Complaint No 1: The Unfair Dismissals Act 1977.

It is the Respondents case that the claimant resigned from his position as Transport Co-ordinator on 3rd April 2017. He was not dismissed.

The claimant was informed on the commencement of his employment, that he would be required to carry a company phone. He agreed to this as being necessary for the efficient and smooth running of the operation.

On 24th March 2017, the claimant telephoned the older director and asked to meet with him. He agreed to do so and a meeting was set for 28th march at 4.00pm.

At this meeting, the claimant raised two issues. The first was that he wanted to have four days off every two weeks and he requested that this be reflected in the terms of a changed contract of employment. He undertook to look into this request and stated that any changes to contracts of employment were a matter for the younger director. The claimant then asked the older director to confirm the chain of command within the company. The older director said that he himself was a director and that the younger director was Transport Manager and was, therefore, The claimant’s line manager. The claimant then attempted to have the younger director removed as his line manager stating that he had more experience in the management of the operation in Wexford and that he was no longer prepared to work under the younger director’s direction. The older director reiterated the fact that the younger director was the Transport Manager and explained that he had worked within the business from a very young age and he had, therefore, a lot of experience in how to manage the operation. The claimant stated that he did not want the younger director “butting in on his decisions”. The older director restated the fact that the younger director was Transport Manager and rejected this demand as unacceptable. The claimant then informed the older director that he would resign from his position as Transport Co-Ordinator if he had to work under the younger director. The older director said there was no question of altering the reporting lines and asked the claimant to re-consider his position and offered to meet with him again in Wexford the following week. The claimant agreed to the meeting but volunteered to deliver a written confirmation of his resignation the following day, 29th March 2017. The claimant further stated that he didn’t need the job as he had enough money to live on (he had a good redundancy payment from his previous job) but he did want more time off. The older director again asked him to reconsider his decision to resign and to think on what he was doing. No written confirmation of the claimant’s redundancy was subsequently received.

As promised a meeting was held on 3rd April 2017 attended by the claimant, the younger director and the older director. The older director again confirmed that the younger director was the Transport Manager and that the claimant would continue to be required to report to him. This position was unacceptable to the claimant who stated clearly on two separate occasions that he was resigning from his position as Transport Co-Ordinator. Both directors asked him to sign a pre-prepared note to the effect that he was resigning, but the claimant refused to do so stating that “I’m resigning but I want to get advice before I sign anything”. The respondent was left in no doubt that the claimant had resigned from his employment during that meeting and, as a consequence, it was agreed that the claimant would serve his week’s notice working as a driver and not in the role of Transport Co-ordinator. It is clear from this that the claimant’s resignation was accepted at this meeting.

Following this meeting on 3rd April, the claimant worked his one week’s notice carrying out the duties of a driver and not those of Transport Co-Ordinator.

On 12th April the claimant met with the younger direct in Wexford. The principle purpose of the meeting was to address issues which were left over from the claimant’s tenure as Transport Co-Ordinator. The claimant did mention the possibility that he might continue working as a driver. The younger director again asked the claimant for written confirmation of the fact that he had resigned his position and the claimant told him that he had forgotten to bring written confirmation with him but that he would drop it in in the near future. During this meeting the claimant informed the younger director that he had several promising job prospects from interviews he had attended.

On 14th April there was a further telephone conversation between the claimant and the younger director in which the claimant asked if he could work as a driver. He said he would consider this possibility but that he needed to have the claimant’s resignation in writing before he could start with the company again in the position of driver. He also stated that the claimant would have to sign a new contract of employment. The claimant said he would consider this and that he would get back to him on the matter.

On 19th April the claimant telephoned the director and stated that he had never resigned from the company that he had instead stepped down from the position of Transport Co-Ordinator to the role of driver. The director rejected this assertion in clear and direct terms. He stated that there was no agreement whereby the claimant could “step down” to a driver’s role in either of the two meetings (3rd or 10th April) and there would be no agreement from the company to that course of action unless and until the claimant provided written confirmation of his resignation. The claimant stated that at the two meetings he had “taken it that he was stepping down to a driver’s role” and suggested that there may have been two interpretations of what was discussed”. Both directors are absolutely clear that the claimant did not make his resignation contingent upon being provided with alternative employment as a driver. They both state that there was no discussion of the claimant stepping down to a driver’s role and flatly reject the claimant’s statement to that effect.

Complaint No 2: The Minimum Notice and terms of Employment Act 1973– Did not receive payment in lieu of notice

It is the Respondents case that the claimant resigned from his employment of his own volition on first on 29th March with confirmation on 3rd April 2017. He was required to give one week’s notice, which he did and his last day of work was on 10th April, 1 week after his resignation was confirmed. He was paid for work done during that week and any holiday pay due to him.

I ask that this complaint be dismissed as having no foundation whatsoever.

Complaint No 3: Claim under the Terms of Employment Information Act 1994

The claimant signed two documents regarding his terms and conditions of employment.

One of the claimant’s responsibilities was recruitment of drivers. One element of that key responsibility was to administer the recruitment process, including associated paperwork. He was therefore responsible for maintaining employee records, including his own, which he kept in a secure filing cabinet in his office. He was familiar with the full suite of documentation that pertained to employment within the company.

As a consequence of this activity the claimant had access to his own file at all times and it is therefore untenable to suggest that he could not have secured a copy of his own contract of employment at will.

The assertion on the claim form that he was somehow denied access to a copy of his terms and conditions of employment is strongly denied. It is also worth noting that the claimant never asked for a copy of his contract of employment in the course of his service with the respondent. I ask that you dismiss this claim as without foundation.

Complaint No 4: The Organisation of Working Time Act 1997 – failure to get daily rest break

The claimant makes a general claim that he did not get daily rest breaks and cites an example on 26 & 27th February 2017 in support of this claim.

As Transport Co-ordinator, the claimant was responsible for scheduling drivers to the work that was available. He was also responsible for approving annual leave requests. The overriding consideration in deciding on annual leave is to ensure there are sufficient drivers available to do the work required. On 26th February, the claimant had granted days-off or annual leave to 7 drivers. There was no need for him to do driving duties himself as the company’s mechanic was available to do this work. In short, the claimant chose to do the work himself which meant that he did not get his 11-hour break on the date in question.

During January and February, 2017 the younger director repeatedly asked The claimant to recruit more drivers to ensure there was enough staff to meet the increasing demands of the work that the company was successful in tendering for. The claimant disagreed with the company’s plan to recruit drivers to full-time positions. The claimant actually turned away prospective recruits who arrived for interviews scheduled by the younger director. 

It should be noted that it is generally easier to recruit for full-time driving positions than for part-time or occasional ones. It is reasonable to speculate, given the subsequent out-turn of events, as to whether the claimant was attempting to ensure there was a full-time role for himself by refusing to recruit full-time drivers before he put his ultimatum to the older director two days later.

Complaint No 5: The Organisation of Working Time Act 1997 – failure to get weekly rest break

The claimant’s weekly rest day was a Saturday. He normally got this day off and was given well in excess of 35-hour break as required by the application of Section 11 and 13. This fact is reflected in the working time records submitted.

The example given on the claim form (in the week commencing 29/01/18) refers to a situation on 3rd February whereby the claimant insisted that he accompany a driver to a new depot in Tralee contrary to the advice of the younger director. There was no need for the claimant to visit the depot and the visit was not required as part of his regular duties. When he informed the director of his intention to make the trip the director advised him against it but stopped short of issuing a direct instruction not to go. This was an 11-hour trip which was pointless and entirely at the initiative of the claimant. On Wednesday of the same week the claimant also decided to travel to the Galway depot (another new depot) with a driver – again there was no need for the additional 10 ½ hours required for this trip.

These additional hours spent viewing the new depots were totally unnecessary and the trips were made against the wishes of the younger director. The claimant performed no useful work during these trips and the Adjudicator should note that the driver is normally the sole occupant of the truck for these deliveries.

Given what transpired some 8 weeks later, when the claimant delivered his ultimatum to the older director to the effect that he knew the operation better that the younger director, it is reasonable to speculate that the trips to see the new depots were part of a bigger plan to better place The claimant in his effort to gain full management control of the operation in Wexford.. In any event, given that the claimant was himself the person responsible for the decision to take these unnecessary trips, the fact that he now cites them as an example of the company denying him his weekly rest period is a gross distortion of the facts and I ask you to reject this claim as unfounded.

Complaint No 6: The Organisation of Working Time Act 1997 – requirement to work more than 48 hours per week

The working time records already referred to above show that the claimant was not required to work in excess of 48 hours per week. In fact, even allowing for the 20 odd hours already dealt with at point 5 above, his weekly average working hours calculate at 44.17, a figure well short of the 48 hour maximum. These records have been signed by the claimant as correct. On this basis I ask that the claim should be dismissed.

Complaint No 7: The Organisation of Working Time Act 1997 – Sunday premium

The claimant statement of main terms and conditions of employment state that “Your Sunday premium is incorporated into your rate of pay”. The position is also dealt with in the company’s handbook. The claimant was required to work Sundays as normal working days given the nature of the operation. There was no variation in that requirement. Barring holidays, the claimant was required to attend work. He signed his contract to that effect thereby agreeing that a Sunday premium was included. Accordingly, I ask that this claim be dismissed.

Complaint No 8: The Payment of Wages Act 1991 – Did not receive payment in lieu of notice

It is the Respondent’s case that the claimant resigned from his employment of his own volition on first on 29th March with confirmation on 3rd April 2017. He was required to give one week’s notice, which he did and his last day of work was on 10th April, 1 week after his resignation was confirmed. He was paid for work done during that week and any holiday pay due to him. I ask that this complaint be dismissed as having no foundation whatsoever.

CA 12868-001 Section 8 Unfair Dismissal.

The complainant’s evidence was clear and consistent. He stated that he accepted the role as transport co-ordinator on the understanding that if after a year he felt he couldn’t continue in that role he would revert back to being a driver.   That is in fact what happened. After the meeting on the 03.04.2017 the complainant continued on as a driver for a short period of time. The respondent states that he only did so because they didn’t want him working as a co-ordinator for fear he would do something to sabotage the company. The complainant states that he did so in line with his original agreement with one of the directors. The respondent states that the complainant was very clear at both meetings that he wasn’t going to work with the younger director and if he was forced to, he would resign. They stated that they intended to try and resolve the complainant’s issues at the meeting in April however the minutes of the meeting suggest otherwise. The two directors arrived at the meeting with a prepared letter of resignation for the complainant to sign. No attempt whatsoever is recorded of them trying to resolve any of the complainant’s issues. In any event, the complainant did not sign the letter of resignation nor did he ever tender his own letter of resignation.

I find the evidence of the younger director simply incredible, when he states that the complainant, after telling him that he could not and would not work under him and if forced to do so would resign, then comes to him and asks for work as a driver, when he was allegedly the sole reason for the complainant’s alleged resignation. I prefer the complainant’s evidence that he had a verbal agreement with the older director that if the role as co-ordinator didn’t work out he would revert back to driving. I find that the two directors no longer wanted to work with the complainant due to the grievances he had aired and they dismissed him on the 10th April, 2017.

The complainant commenced working for another firm on the 20th May, 2017. In those circumstances I award the complainant the sum of € 2,500.00.

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CA 12868-002 Minimum Notice & Terms of Employment Act, 1973.

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

The complainant is entitled to one week’s notice in circumstances were his employment was terminated on the 10th April, 2017 with immediate effect. I calculate the amount due to the complainant is € 686.00.

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CA- 12868 – 003 Terms of Employment ( Information) Act, 1994. 

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration 

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or 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, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

The respondent conceded that the complainant was not given a copy of his contract. The fact that the contract was kept in a filing cabinet next to where the complainant worked does not satisfy the respondents obligations under the act.

I award the complainant two weeks salary in relation to the breach of Section 3 of the Act amounting to € 1,372.00

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CA 12868-004 Organisation of Working Time Act, 1997 (daily rest periods)

The complainant state that he was essentially on call 24/7. He was requested by the respondent to prepare timesheets indicating his hours of work. The complainant did prepare those time sheet however he states that they were prepared to show compliance with the directive and are not actually an accurate reflection of the hours he worked. The complainant had options open to him if he was asked to fabricate the timesheets but he made the decision not to exercise those options until now. It is in those circumstances that I find that I cannot look behind the timesheets that the complainant prepared himself for the purpose of making a finding in his favour.

The complaint fails.

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CA 12868-005 Organisation of Working Time Act, 1997 ( weekly rest periods)

The complainant state that he was essentially on call 24/7. He was requested by the respondent to prepare timesheets indicating his hours of work. The complainant did pre pare those time sheet however he states that they were prepared to show compliance with the directive and are not actually an accurate reflection of the hours he worked. The complainant had options open to him if he was asked to fabricate the timesheets but he made the decision not to exercise those options until now. It is in those circumstances that I find that I cannot look behind the timesheet that the complainant prepared himself for the purpose of making a finding in his favour.

The complaint fails.

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CA 12868-006 Organisation of Working Time Act, 1997 ( Weekly hours of work)

The complainant state that he was essentially on call 24/7. He was requested by the respondent to prepare timesheets indicating his hours of work. The complainant did pre pare those time sheet however he states that they were prepared to show compliance with the directive and are not actually an accurate reflection of the hours he worked. The complainant had options open to him if he was asked to fabricate the timesheets but he made the decision not to exercise those options until now. It is in those circumstances that I find that I cannot look behind the timesheets that the complainant prepared himself, for the purpose of making a finding in his favour.

The complaint fails.

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CA 12868 -007 Organisation of Working Time Act, 1997. ( Sunday Supplement)

The respondent stated that the complainant’s day off was a Saturday because Sunday was a busy day. No evidence was produced to show that the complainant was in receipt of a supplement for working on a Sunday.

It is on that basis that I find that the claim succeeds.

Section 27 (3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:   (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

I award the complainant the sum of € 2,000.00 being an amount I deem to be just and equitable in all the circumstances of this case.