Complainant

Respondent

Anonymised Parties

HGV Driver

Road Haulage Company

Representatives

Self

Michael McNamee, B.L., instructed by Aidan McGrath, DAS Group

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027686-002

11/04/2019

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-00027686-007

11/04/2019

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-00027686-008

11/04/2019

The complainant was employed as a HGV Driver by the respondent company commencing on 15 November 2018. The complainant resigned from his employment on 18 March 2019. The dispute is in relation to the alleged non-receipt of a statement of his terms of employment, a claim that the respondent did not keep records in accordance with the relevant Road Transport Regulations and a claim that the respondent did not properly notify the complainant of these Regulations.

The complainant did not receive a statement of his terms of employment.

The respondent did not keep any of the prescribed records relevant to the complainant whilst the complainant was employed by the respondent.

The complainant was not notified about the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations as the respondent was required to do by law.

The complainant voluntarily resigned from his position with the respondent after less than 4 months’ service. No issues were raised by the complainant during his employment.

Following his resignation the complainant sought documentation relating to his employment but before the respondent could comply with this request they were advised by the complainant that complaints had been lodged with the WRC

All the relevant records were in the possession of the complainant and the reader and manual records were only handed in to the respondent after the complainant’s resignation.

The complainant was employed as a truck driver for a period of just under 4 months between November 2018 and March 2019. It appears that the complainant responded to an advertisement which sought a driver for local work which was “mostly Agri related”. In actual fact the complainant found that he had to perform duties in respect of work that was outsourced to third parties and which included driving long distances to destinations all over the country (including Northern Ireland).   The complainant submitted copies of texts sent to the respondent in which he had raised issues regarding pay and long working hours. The complainant was paid a fixed sum of either €550 or €600 per week by electronic transfer which was often late in reaching his bank account. The complainant resigned with effect from 18 March 2019 having given notice by email dated 13 March. In that email he did not raise any issue and thanked the Directors for the opportunity of working for the company and for the trust that was shown in him. On 26 March there was a further email from the complainant seeking his P45 and copies of payslips and querying if he was due holiday pay. The respondent did not respond to this and on 13 April the complainant advised the respondent that he had “filed a case on numerous grounds with the WRC”. The complaint form was lodged with the WRC on 11 April 2019. A number of these complaints are being dealt with by the Inspectorate.

There were 3 specific complaints which were the subject of this hearing.

Complaint No. CA-00027686-002:

This is a complaint under the Terms of Employment (information) Act, 1994, to the effect that the complainant did not receive a statement of his terms of employment. Section 3(1) of the Act states:

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….

The section then proceeds to list these various particulars.

The complainant in evidence stated that he had not been given such a statement. The respondent produced a copy of a document which is a sample written statement of terms of employment produced as a guide for employers as to the requirements of the legislation. The blanks on this document have been filled in by pen.   It gives a date of commencement of employment of 19 November 2018 and it is signed by one of the directors and dated 15 January 2019. I note that the complainant on his complaint form gives a commencement date of 15 November 2018 and that in their written submission the respondent states that the complainant was employed from approximately 15 November 2018.   There is a note on file in the documentation presented at the hearing to the effect that the complainant was being trained on 15 / 16 November.. If it is accepted that 15 November 2018 is the date of commencement of employment then the statement should have been given to the complainant on or before the 14 January 2019. Aside from that, the fact that a Director signed it on a specific date is not proof that it was given to the complainant either on that date or at all.   Having regard to all of the circumstances I accept the evidence of the complainant that he did not receive the statement as required by the legislation and consequently I find the complaint to be well founded.

Complaint No. CA-00027686-007:

This is a complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012, to the effect that the respondent was not keeping statutory employment records.   The regulations are contained in S.I. No. 36 of 2012. Regulation 12 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)    n/a

(c)     n/a

(d)    keep records that 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 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).

In evidence the complainant said that no such records were kept by the respondent. He further stated that he was required to download his own tachograph card. The complainant also kept a manual log of his journeys and hours in a diary a copy of which he gave to the respondent upon leaving. The respondent said that they were unable to assemble documentation as the complainant did not return the reader until after his resignation and they could only compile the records after that. The complainant was paid a salary and the respondent believed that no detriment was suffered by him in this regard.

It is clear that the Regulations place the onus on the employer to maintain the records outlined therein. It is clear that the respondent in this case did not keep records in the manner outlined by the Regulations. The records provided at the hearing were compiled some time after the complainant’s resignation. In the light of the evidence before me I find this complaint to be well founded.

Complaint No CA-00027686-008:

This is a further complaint under the Transport Regulations to the effect that the complainant was not notified of the working hours regulations applying to the road transport sector.

Regulation 11 of the Regulations states:

An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provision of any collective agreement, employment regulation order or registered employment 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 in evidence that he had not been notified about the Regulations. The submission of the respondent includes a copy of a letter dated 15 January 2019 and addressed to the complainant at his home address setting out details of road transport regulations “introduced on 2nd January 2006”. Having heard the evidence from both parties I accept that on the balance of probabilities the complainant was not issued with notice of the provisions of the Regulations contained in S.I. No. 36 of 2012 nor was a copy of the Regulations available for inspection. I therefore find this complaint to be well founded.

Complaint No. CA-00027686-002:

For the reasons outlined above I find this complaint under the Terms of Employment (Information) Act, 1994, to be well founded and I order the respondent to pay to the complainant the sum of €2,000.00 as compensation in this regard.

Complaint No. CA-00027686-007:

For the reasons outlined above I find this complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations, 2012, to be well founded and I order the respondent to pay to the complainant the sum of €1,000.00 as compensation in this regard.

Complaint No. CA-00027686-008:

For the reasons outlined above I find this complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Road Transport Activities) Regulations, 2012, to be well founded and I order the respondent to pay to the complainant the sum of €400.00 as compensation in this regard.