ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00017815

Parties:

Complaint(s):

Date of Adjudication Hearing:  14/12/2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complaint was employed as a Driver where he submitted that the Respondent is in breach of his entitlements under Section 15 (weekly working hours) and Section 12 (rests and intervals at work) of the Organisation of Working Time Act.

Summary of Complainant’s Case:

CA-00022991-001 Complaint – Weekly Working Hours- Under Section 27 Of The Organisation Of Working Time Act, 1997

The Complainant submitted that he was required to work an average of 55 hours per week which is contrary to section 15 of the Act. He advised he was also required to respond to texts after hours in preparation for the following day’s work and that he would receive texts from 5am up to 10 pm.

CA-00022991-002 Complaint- Breaks and Intervals at Work- Under Section 27 Of The Organisation Of Working Time Act, 1997

The Complainant submitted that he was not provided with his intervals at work rest breaks during the day on site which is contrary to section 12 of the Act. The Complainant submitted that he was required to drive on a daily basis from the depot to a client’s site where he changed driving from a heavy goods vehicle to a shunting vehicle. He maintained that due to the work pattern each day he was not provided with the opportunity to enjoy rest and intervals at work breaks. He advised there was insufficient time to take these breaks as his shunting duties required him to be available throughout the day to facilitate shunting of goods around the site.

The Complainant maintained that he worked from 6 am until 5 pm. He explained that during the daytime when he was taking his breaks his phone would ring and if he did not respond to these calls to continue shunting it would cause a build-up of goods and therefore he had to be readily available throughout each day. The Complainant advised there was no second driver until 1pm each day and therefore he was a lone driver on site from 6am until 1pm. He advised he could not take a break for a meal as he would be called back to shunt the trailers.

The Complainant further advised it would take up to 30 minutes to load a trailer and 15 minutes to shunt the loaded trailer. He advised that this had been his work routine from September 2015 and he would have regularly verbally raised concerns to his line manager that he could not take his breaks. The Complainant submitted copies of his tachographs for work in January 2018 which  he maintained would indicate he would have been driving from before 6am and would not have completed driving until 5 pm each day.

Summary of Respondent’s Case:

CA-00022991-001 Complaint – Weekly Working Hours- Under Section 27 Of The Organisation Of Working Time Act, 1997

In response to the complaint that the Complainant was required to work up to 55 hours per week, the Respondent submitted that whilst texts would have been sent to the Complainant outside of his working hours there  was no obligation for him to respond to these.

The working hours of the Complainant where he started at 6am and finished at 5pm was not disputed by the Respondent. However the Respondent advised that the Complainant would finish work before 5pm   and therefore contested that his working hours exceeded the permitted hours under the Act. 

The Respondent did not provide a record of the weekly working hours for the Complainant.

CA-00022991-002 Complaint- Breaks and Intervals at Work- Under Section 27 Of The Organisation Of Working Time Act, 1997

In response to the complaint that the Complainant did not get to take his breaks and intervals at work, the Respondent advised that there was sufficient time during the workday for the Complainant to take his breaks. The Respondent advised that the Complainant was required to note his break times on the tachograph and that he failed to properly record these breaks. It further advised that whilst the Complainant was the sole driver on site from 6am to 1pm, there would have been sufficient time for him to take his breaks, and if he had received a call to shunt a trailer when on a break it would have been acceptable for him to explain that he was on a break and that the Complainant would never have been denied the opportunity to take his breaks.  The Respondent maintained that the Complainant was never put under pressure to forgo his breaks.

The Respondent called another driver from the site as a witness.  This driver outlined in his evidence that he was never put under pressure to forgo his breaks and he would get 15-minute breaks during his roster, and also would have had sufficient time to take a break in the Canteen or the drivers hut. The witness advised he could take a break at any appropriate time and it was the discretion of the drivers to take their breaks. In his evidence the witness advised he was never required to “run and jump” if he was called to shunt a trailer, and he could finish his breaks before going back to drive.  The witness advised in his twelve years working with the Respondent he had never experienced not being permitted to take a break. The witness also advised that would never have heard the Complainant complain about not getting breaks or having to work long hours later.

The Respondent acknowledged it did not have a record of the rest breaks taken however it maintained it was the driver’s responsibility to have this noted on his tachograph, but he failed to do this.

Findings and Conclusions:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00022991-001 Complaint – Weekly Working Hours- Under Section 27 Of The Organisation Of Working Time Act, 1997

Section 15 of the Act requires that an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, calculated over a 4 months… or 6 months …, or such length of time as, in the case of an employee employed in an activity … specified in a collective agreement.

In the case within the Complainant’s average weekly working hours amounted to a minimum of 50 hours per week.  The Respondent did not provide a record of the Complainant ‘s weekly working hours. 

I find the Respondent was in breach of its obligations under section 15 of the Act. 

CA-00022991-002 Complaint- Breaks and Intervals at Work-  Under Section 27 Of The Organisation Of Working Time Act, 1997

In accordance with Section 12 of the Organisation of Working Time Act 1997, (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

Based on the evidence provided I am satisfied that there were sufficient opportunities for the Complainant to take his intervals at work breaks, and the evidence submitted that the Complainant was prevented from doing so was not corroborated by the Complainant other than in his verbal submission at the hearing.  The evidence presented by the Respondent’s witness, a driver colleague of the Complainant, disputed the Complainant’s version of events, as did the Respondent.

I am satisfied samples of the tachographs presented by the Complainant for a number of days in January 2018 demonstrates no breaks were recorded in the driving operation of the tachographs presented, and where these tachographs were those operated by the Complainant. I also note the Respondents position that the Complainant had failed to properly operate the tachograph to record the breaks he took.

Furthermore, as set out in the Complainant’s statement of his terms of employment, the minimum rest periods are stipulated, are consistent with section 15 of the Act,  and where the Complainant is advised that should he fail to receive his breaks or rest periods he should advise his manager within one week and the Respondent will seek to ensure the employee is afforded this as soon as possible.

The Complainant did not corroborate his statement that he had advised his manager, or when he raised his concerns in accordance with his terms of employment where the Respondent failed to address the concerns.

I therefore find the Respondent’s evidence to be more credible, and I do not find that the Respondent failed to provide the Complainant with an opportunity to take his intervals at work breaks.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to a contravention under Sections 6(2), sections 11 to 23, and section 26 of that Act.

CA-00022991-001 Complaint – Weekly Working Hours- Under Section 27 Of The Organisation Of Working Time Act, 1997

I have found the Respondent was in contravention of section 15 of the Act. I therefore find the Complainant is well founded and require the Respondent to pay to the employee compensation of four weeks remuneration at his gross rate of pay.

CA-00022991-002 Complaint- Breaks and Intervals at Work- Under Section 27 Of The Organisation Of Working Time Act, 1997

I have not found the Respondent was in contravention of Section 12 of the Act. I therefore do not find the complaint is well founded.

Dated:   1^st August 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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