Complainant

Respondent

Anonymised Parties

A Driver

A Quarry business

Representatives

Kate O'shea Kate O'Shea Solutions

Harrison O'Dwyer Harrison O'Dwyer 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-00026332-001

18/02/2019

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

CA-00026332-002

18/02/2019

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-00026332-003

18/02/2019

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-00026332-004

18/02/2019

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

CA-00026333-001

18/02/2019

This dispute involves a claim by the complainant against the respondent that he was subjected to a Constructive Unfair Dismissal. The complainant referred this complaint against the above respondent on the 18th of February 2019.     He has also submitted claims under section 7 of the Terms of Employment (Information) Act, 1994, Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 and under section 27 of the Organisation of Working Time Act, 1997.

The complainant has submitted that he was subjected to a constructive unfair dismissal by the respondent on the 23rd of January 2019.      I proceeded to a hearing of these complaints on the 11th of July 2019.   The cognisable period for this claim dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2019.

The complainant submits that

He was removed from his position as artic truck driver and instructed to drive a crane truck,

He agreed to drive the crane truck on a temporary basis as the usual driver was out on sick leave,

While driving the crane truck he has been consistently instructed by his Employer to break the law in relation to RSA regulations putting his licence at risk,

He lodged a grievance with his Employer approx. 15 months prior to this complaint and again 4 months prior to this complaint to the WRC, all of which have been ignored,

he requested on numerous occasions his contract of employment along with the company policies and procedures in order to have his grievance heard but unfortunately was unable to obtain same,

he repeatedly sought a return to his position of artic truck driver but was refused and told that the only position available to him was that of crane truck driver,

He attempted to return to work after a period of sick leave due to work related stress and abide by these regulations and was instructed by his Employer to again break the RSA regulations which he refused to do,

The respondent agreed in December 2018 to return him to the position of artic truck driver and to investigate his grievances, but the complainant had lost all trust and confidence in the respondent at that stage and he resigned his position on 23rd of January 2018.

The respondent submits that

The Complainants most recent term of employment with the respondent commenced on 21 July 2012,

By letter dated 8 November 2018, the Complainant advised he was on sick leave and did not return to work with the Respondent (other than on the 11th of December 2018),

The respondent does not in general pay sick pay but as a gesture of goodwill paid the complainant for his sick leave from 6th of November to 18th of January 2019,

The respondent engaged with the complainant and his representative in a bid to resolve the complainant’s issues,

The respondent by letter dated 20th of December 2018 agreed to the complainants request to return him to the position of artic truck driver and also offers to hear the complainant’s grievances,

The Complainant resigned from his position on 23 January 2019 with a date of cessation of 30 January 2019.

Constructive Dismissal

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

In addition,

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

The complainant at the hearing gave a lot of evidence in respect of alleged incidents which had taken place and treatment he had been subjected to by the respondent however I am mindful that the cognisable period for this claim dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2018.

The complainant told the hearing that he had resigned his employment with the respondent on 23rd of January 2019 after he being subjected to bullying and harassment by Mr. J of the respondent and having been forced on a number of occasions to drive a crane truck which was loaded to a level over the legal limit an issue which the complainant had on numerous occasions raised with the respondent as he was concerned about the safety risks of driving an overloaded truck.  

The complainant advised the hearing that he had been employed by the respondent as an artic truck driver since 2012.     The complainant stated that he had also worked for the respondent on two previous occasions and had never had any problems or issues at work until when he was suddenly taken off the artic truck and was instead instructed to drive the bigger crane truck.   The complainant stated that this truck was very often overloaded beyond the legally permitted weight by the respondent and that he was required to drive the overloaded truck.   The complainant stated that he had initially been asked to drive the crane truck for a short period as the usual driver was out sick and that he had agreed to do this, but he stated that that this then became his regular position.  

The complainant told the hearing that he had on one occasion been stopped on the road and inspected by the RSA and told that the tyres on the crane truck needed changing.   The complainant stated that he raised the issue of the tyres with the respondent on 13 occasions before the respondent did anything about it. The respondent told the hearing that that they checked the tyres and that they were within the legal limits, the respondent also added that if it was the case that the RSA had formed the opinion that the tyres were not roadworthy they would have stopped the complainant there and then and he would not have been allowed to drive the truck any further.   The complainant stated that he was worried that if he was stopped again it would mean getting points on his licence.    In addition, the complainant stated that the respondent had a few years previously in March 2015 issued a warning to all staff stating that anyone with 6 points on their licence would not be allowed to drive for them.

The complainant told the hearing that he had regularly complained to the respondent about being required to drive the crane truck when it was loaded to levels over the legal limits, but he stated that the respondent was not sympathetic and had in fact mocked him for complaining.   The complainants stated that the respondent had referred to him as a “f***ing donkey” and had refused to listen to his concerns regarding driving the overloaded truck.   The complainant stated that he had on one occasion on 10th of December 2018 attached a trailer to the truck in order that he could safely carry the load requested but he stated that Mr. J had then instructed him to remove the trailer and to carry the entire load on the crane truck.   The complainant stated that following this he had not driven the truck at all that day and so he returned home.     The complainant stated that he had no problems or issues with the respondent prior to his being assigned to drive the crane truck, he clarified that RSA guidelines regarding weights only arose in the context of driving the crane truck.

The complainant told the hearing that he was often reprimanded by the respondent for spending too much time cleaning the crane truck and/or for bringing it to be greased. He stated that he was also reprimanded for spending too much time on building sites helping to unload the blocks for customers.   He stated that he had on one occasion obeyed the respondent’s instruction not to spend time on customer sites and the next day he was instructed to go back to the site in question as the load of blocks he had delivered had been left in the wrong place and the customer had complained to the respondent about this.   The complainant told the hearing that he felt that no matter what he did it wasn’t right.   The complainant stated that he had on the 2nd of November 2018 received a warning letter from the respondent regarding his productivity and attitude and instructing him that he needed to change his tune.

The complainant stated that he received this letter shortly after he had taken a day’s annual leave from work as he had to go for tests due to headaches he had been getting from the stress.    This also referred to the complainant’s behaviour having affected other staff members.

The respondent at the hearing stated that he was unaware that the complainant had at the time been in hospital for tests so was unable to take account of this. The respondent Mr T at the hearing also stated that he had issued the warning letter due to the way the complainant had dealt with another employee Ms. H.   Mr. T stated that Ms. H had been crying and upset after being verbally abused by the complainant. Mr. T stated that he had to do something about this and so he had issued the letter of warning. Mr. T added that the complainant was always complaining about where he was being sent to carry out deliveries.

The complainant told the hearing that he was bullied and micromanaged by Mr. J and that he had tried to resolve issues informally by speaking with the respondent before formally requesting a copy of his terms and conditions of employment along with policy documents in November 2017 and again in November 2018.     The response from the respondent to this request was given by Mr. D director/accountant who said, “we will look into it continue your duties as before”.

The complainant advised the hearing that he had gone on sick leave from work due to work related stress on 6th of November 2018 until his resignation on the 23rd of January 2019.  

The complainant told the hearing that he had submitted a letter of complaint to the respondent on 6th of November 2018 having submitted an earlier complaint in November 2017 in respect of verbal abuse from Mr. J.   He had also in the letter of November 2017 requested a copy of his terms and conditions of employment. The complainant in his letter of November 2018 referred to the warning letter of 2nd of November and also to the fact that he was suffering from headaches due to stress. This letter also stated that he would welcome an opportunity to discuss these issues.   The complainant advised the hearing that he received no response to this letter, and he had engaged a solicitor who wrote to the respondent on his behalf on 26th of November 2018. This letter referred to grievances raised by the complainant and again requested a copy of his Terms of employment and the grievance procedure.   The respondent replied to this on the 3rd of December 2018 but did not enclose the requested documentation which the respondent’s rep requested again by letter dated 7th of December 2018.

The complainant advised the hearing that he returned to work on the 10th of December 2018 but that he was on his return requested to carry a delivery which was overweight. The complainant stated that he loaded the delivery on to the truck and attached a trailer in order to carry the full load but that he was instructed by Mr. J that he was not to leave the yard with the trailer attached as the load was to be carried on the truck. The complainant stated that he could not in those circumstances carry out the delivery.     Following this the complainant’s representative again wrote to the respondent seeking a meeting to resolve the complainant’s issues prior to submitting a complaint to the WRC. A meeting took place between the parties on the 18th of December and the complainant received a letter from the respondent on the 20th of December 2018 agreeing to return the complainant to the position of artic truck driver which he had requested and agreeing to address grievances raised by the complainant.   A further meeting took place between the respondent and the complainant’s representative on the 18th of January 2019 where the respondent produced some of the requested documentation but which the complainant submits was far from what was required.    The respondent told the hearing that it had requested the complainant’s representative to provide comments on the contract but that none were provided.     The complainant resigned his position on the 23rd of January stating that he had lost confidence in the respondent.

The complainant stated that he had asked for a copy of his contract in order that he might be able to lodge a grievance and address the bullying which he was being subjected to by his manager Mr. J but did not receive any contract until November 2018. The non-receipt of a contract is the subject of a separate complaint under CA-00026332-002.

The complainant told the hearing that he was provided with some documentation by the respondent in January 2019 some 15 months after he had first requested it.   The complainant submits that the respondent had committed to providing these documents on 20th of December 2018 but that they were not provided until 14th of January 2019 after the complainant had again asked for them.

The respondent told the hearing that the complainant had resigned his position at a time when his issues had been resolved by the respondent after he had been offered the position he requested and after an undertaking had been given that the respondent would investigate his grievances.

Both parties agreed that the complainant was issued with a letter from the respondent on the 20th of December 2018 in which the respondent agreed to return the complainant to the position of artic truck driver which he had requested and in which the respondent also agreed to address grievances raised by the complainant.

The respondent added that there was no incident after that agreement which could have prompted the complainant’s resignation at that point in time as he wasn’t even in the workplace at the time as he was out on sick leave.

The respondent at the hearing also denied that he complainant had been bullied and stated that the nature of the work is that it takes place on noisy busy sites where there could be a lot of shouting and banter as it is a loud yard and a place where employees worked to tight timeframes. The respondent also added that the complainant ‘gave as good as he got’ and stated that the complainant “would not take bullying from anyone”.   The respondent Mr. T also added that there was a lot of arguing between the complainant and Mr. J and he added that the complainant complained about having to drive the crane truck and about the places he had to go.   Mr. T stated that the complainant always wanted things on his own terms and was very argumentative.   Mr. J added that the complainant was a hard man to deal with.

The respondent stated that the complainant had engaged a solicitor in November 2018 and that the respondent had met with the complainant s solicitor or two occasions in a bid to resolve issues. The respondent told the hearing that it had met with the complainant’s representative on 18th of December 2018 in an attempt to resolve the complainant’s grievances. The respondent submits that the complainant’s representative at this point demanded a severance package to the full value of a number of claims to be made by the complainant.

The respondent stated that it had on 20th of December 2018 written to the complainant’s representative agreeing to provide a contract of employment and agreeing to the complainants request to drive an artic truck from 14th of January 2019 and offering to address all outstanding grievances and offering the complainant the services of the company doctor together with paid sick leave.   The respondent advised the hearing that it had as a gesture of goodwill also agreed to pay the complainant sick pay from 6th of November 2018 to 14th of January 2019 in spite of the fact that it does not pay employees during sick leave but decided to pay it to the complainant. The complainant’s representative had responded to this letter acknowledging the respondent’s efforts and stating that the complainant would draft a formal grievance once a copy of the grievance procedure was received and suggested the engagement of a third-party mediator to hear the complainant’s grievance.   Further correspondence took place between the parties and another meeting took place on 18th of January 2019 where the respondent presented a copy of the complainant’s contract. The respondent stated that the complainant’s representative at this meeting stated that it was “too little too late”.

The respondent stated that the complainant resigned on 23rd of January 2019 and the respondent on the 24th of January offered to meet the complainant and his representative in a further attempt to resolve his grievances.

The respondent submits that it was not reasonable of the complainant to resign given that a resolution had now been reached.

In considering the reasonableness test I note the case the case of Healy v Credit Card Systems Ireland Limited UD1448/2003 in relation to the Burden of Proof.  Having regard to this the complainant must prove that as well as the actions of the employer being unreasonable, the actions of the complainant in resigning must also be reasonable.  The respondent in that case stated that the actions of the complainant in resigning after her claimed contractual entitlements had been provided to her was not reasonable.

The complainant at the hearing acknowledged that the respondent had prior to the date of his resignation agreed to restore him to the position of artic driver, but he stated that he did not believe that the respondent would honour this agreement.     The complainant added that he had heard from another employee that the respondent was intending to move him to the position of Track machine operator.  The complainant stated that he had heard this from a reliable source from within the respondent company.   The complainant also stated that another colleague Mr. C had also flippantly made reference to the Track machine stating that the complainant “would be fine on a track machine as long as he’s not on a crane truck”.  Mr C advised the hearing that the first mention he heard of any reference to the complainant being put on a track machine was from the complainant’s representative who Mr. C states mentioned this either in conversation with him or in a letter.   The respondent at the hearing stated that there was never a question of the complainant being put on a track machine and that they could have assured him of this if he had raised it with them instead of submitting his resignation.  

The respondent at the hearing stated that the complainants’ issues had been resolved by the time he decided to resign. The complainant s response to this was that the issues had been resolved “on paper” but he added that he had lost faith in the company when he heard a rumour that their intention was to put him on a track machine instead of an artic.   It appears that the complainant after hearing this decided to resign his employment.  

Having given this matter a great deal of consideration and while noting that the complainant in this case did appear to have genuine grievances and cause for concern however I also note that he resigned his employment at a point in time where a resolution was in sight and where the respondent had agreed to grant him the position which he had been requesting and had also agreed to address his grievances.   The complainant at the hearing stated that he did not believe that the respondent would honour these undertakings and in support of this assertion he referred to a comment made by a colleague that he was going to be out working on a Track machine.   The complainant took this to mean that the respondent had intended to assign him to the Track machine and not to the artic truck as promised.   It seems from the correspondence between the parties that the complainant was happy to return to work on the promise of being returned to artic truck driving but once he learned of this comment he resigned.     The complainant did not raise this issue with the respondent and did not give the respondent any opportunity to clarify this before resigning his employment.

In all of the circumstances of this complaint, I am satisfied that the complainant has not established that the respondents behaviour was such that it amounted to a significant breach going to the root of the contract of employment, or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat himself as discharged from any other performance.     I am also satisfied that the complainant has failed to establish that the respondents conduct was so unreasonable that he was justified in leaving his employment.   In addition, I find that the complainant did not act reasonably in resigning his employment at a point in time where the respondent employer had agreed to his request to be restored to his position of artic truck driver and had also agreed to investigate the grievances raised by the complainant.    

Accordingly, I conclude that the complainant has failed to discharge the burden of proof and that his claim for alleged Constructive Unfair Dismissal cannot succeed and therefore is not well founded.

I conclude that the complainant has failed to discharge the burden of proof and that this claim for alleged Constructive Unfair Dismissal is not well founded.

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

CA-00026332-002

18/02/2019

The complainant stated that he did not receive a written statement of his terms and conditions of his employment while in the employment of the respondent.

He was employed by the respondent since 2012   and only received a copy of his contract in December 2018.

The respondent accepts that the complainant only received a copy of his written contract in December 2018 but submits that he complainant had been employed with the respondent on and off since the late 1980’s early 1990’s and that his terms had always been the same.

The Applicable Law

Section 3 of the Terms of Employment, (Information) Act, 1994 states as follows:

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,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee ’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’s average hourly rate of pay for any pay reference period as provided in that section,

(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.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

S.I. 49 of 1998, Terms of Employment (Additional Information) Order 1998, provides, at Regulation 3(1) as follows: -

3. (1) In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.

Section 7 of the Terms of Employment, (Information) Act, 1994 states as follows:

7(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under Section 17 of the Unfair Dismissals Act 1977 .

The respondent advised the hearing that he complainant had been provided with a contract of employment in December 2018.   The complainant agreed that this was the case but stated that he had commenced his most recent term of employment with the respondent in November 2012 and had only received this contract in December 2018 after repeatedly requesting a copy of his terms and conditions of employment.     The complainant also advised the hearing that he was not aware of the method for lodging a grievance or complaint as he had never been provided with a grievance procedure.

The complainant added that the contract provided fell well short of what was required by law. The respondent concedes that the complainant only received a copy of his contract in December 2018 but submits that he complainant had been employed with the respondent on and off since the late 80’s early 90’s and that his terms had always been the same.

There was no evidence adduced to suggest that the complainant had been provided with a contract within two months of the commencement of his employment and in fact both parties agree that the written contract was in only provided in December 2018.   Accordingly, I am satisfied from the evidence adduced that the complainant did not receive a copy of his contract as required by the legislation.

Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €2,000 in compensation.

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-00026332-003

18/02/2019

This claim relates to an alleged failure by the company to keep records of break times.

The respondent submits that

the complainant was at all times afforded his breaks,

The complainant was responsible for completing his timesheet and tachograph records. It is custom and practice that all employees take a 15-minute morning tea break.   The complainant took a 30-minute unpaid lunch break in the afternoon. Regulation 14 of SI 36/2012 also places an obligation on the employee to furnish records to the employer. The respondent submits that the complainant never raised any issue in respect of breaks in his grievance.

The cognisable period for this claim dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2019.     The complainant submits that he did not get his break entitlements and that he was often too busy to take his breaks due to the pressure he was under to make block deliveries.  

The respondent advised the hearing that the complainant was at all times afforded his breaks. The respondent stated that the complainant was responsible for completing his own timesheets and tachograph records.  The respondent submits that is custom and practice that all employees take a 15-minute morning tea break in the morning. The respondent also advised the hearing that the complainant took a 30-minute unpaid lunch break in the afternoon. The respondent provided a sample of one of the complainant’s timesheets as evidence of this.   The respondent also submits that Regulation 14 of SI 36/2012 also places an obligation on the employee to furnish records to the employer. The respondent submits that the complainant never raised any issue in respect of breaks in his grievance.   The complainant in response to this advised the hearing that he had never received a grievance procedure until December 2018 and so he was unaware of the procedure for lodging a grievance or a complaint.     The respondent also submitted the vehicle tracking system records for the reference period from 18th of August 2018 to 18 February 2019.

Having examined the records provided and having considered the totality of the evidence adduced in relation to this matter I am not satisfied that the respondent in this case has complied with its obligations in respect of ensuring that the complainant received his break entitlements and in respect of the recording of those breaks.   Accordingly, I conclude on the balance of probabilities that this complaint is well founded.

I find that the respondent has not made reasonable efforts and investment to ensure that employees take their breaks and I decide that this complaint is upheld.   I conclude that this claim is well founded, and I award the complainant €2,000 in this regard.

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-00026332-004

18/02/2019

The complainant submits that

He worked in excess of 48 hours per week.

The respondent submits that

It accepts that the respondent has an obligation to keep records of the working hours of employees, however Regulation 14 of SI 36/2012 also places an obligation on the employee to furnish records to the employer.

The complainant was in control of his hours of work as he was responsible for submitting tachograph records and worksheets. The respondent also submits the vehicle tracking system records for the reference period from 18th of August 2018 to 18 February 2019.

The cognisable period for this claim dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2019.

The complainant advised the hearing that he worked in excess of 48 hours per week.  

The complainant has submitted a record of hours worked during a 17-week reference period for the purpose of this complaint beginning on the 13th of July 2018 however the cognisable period for the purpose of this complaint dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2019. The complainant was on sick leave from 6th of November 2018.

The respondent advised the hearing that the complainant was in control of his hours of work as he was responsible for submitting tachograph records and worksheets.    The respondent also submitted the vehicle tracking system records for the reference period from 18th of August 2018 to 18 February 2019.

Having examined the work records provided and having regard to the totality of the evidence adduced I am satisfied on the balance of probabilities that the complainant did work in excess of a 48-hour week in the relevant reference period and accordingly I conclude that this claim is well founded.

I conclude that this claim is well founded and I find an award of €3,000 to be appropriate compensation for this breach.

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

CA-00026333-001

18/02/2019

The complainant was paid for 80 hours annual leave on the 21st of December 2018 without his prior knowledge or approval.

The respondent submits that the complainant was paid his accumulated annual leave of 80 hours on the 21st of December 2018 in accordance with the Company’s year-end of 30th of November 2018.   He was also paid for his sick leave and for accumulated annual leave during this period on the 18th of January 2018.

The cognisable period for this claim dates from the 19th of August 2018 and ends on the date of submission of the claim to the WRC on 18 February 2019.

The complainant in his claim form claimed that he did not receive his paid holiday annual leave entitlement.   Both parties agreed that the complainant in this case was paid for his accrued untaken annual leave of 80 hours on 21st of December 2018 and that he received sick pay in respect of 10 weeks sick leave dating from 6th of November 2018 up to the 11th of January 2018, this was paid on the 18th of January 2019.   The respondent advised the hearing that the payment of 18th of January also included annual leave accrued up to that date.  This was not disputed by the complainant.   The respondent produced documentary evidence in support of these assertions.     The records and payslips presented also indicate that the complainant had also taken been paid for 11 annual leave days between 9th of March 2018 and 6th of November 2018. The respondent went on to state that the complainant in addition to this was also paid for his sick leave and for accumulated annual leave during the sick leave period on the 18th of January 2018.   The complainant at the hearing did not advance any claim that his annual leave calculation or payment had been incorrect, nor did he make any assertion that he was owed Annual leave or any payment in lieu of annual leave.  

The complainant in this case has also submitted that his employer consistently paid him annual leave without his request. The complainant also submits that he was unable to avail of annual leave due to business levels and that subsequently this annual leave was lost.

The complainant at the hearing of the claim stated that he was paid 80 hours annual leave on the 21st of December 2018 without his prior knowledge or approval. The respondent at the hearing did not dispute this and agreed that this payment was made. The respondent stated that this was paid in respect of the complainants accumulated annual leave in accordance with the Company’s year-end of 30th of November 2018.  

The complainant at the time of receipt of the annual leave payment was absent from work on sick leave. The complainant in this case remained absent on sick leave before resigning his employment on the 23rd of January 2018.

The Organisation of working time act provides that an employee can be paid in lieu of annual leave at the termination of his employment, however Article 7 of the Directive 93/104 IEC on The Organisation of Working Time "concerning certain aspects of the organisation of working time" expressly prohibits the payment of an allowance in lieu of annual leave except where the employment relationship has ended.   The complainant in this has submitted that he received payment in lieu of his annual leave entitlement on 21st of December 2018.     The complainant at this point in time had not submitted his resignation and so provisions relating to payment in lieu of annual leave on cessation of employment do not apply here.    In considering this matter I note that Article 7 of 93/104 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative.     In Von Colson & Kaman v Land Nordrhein - Westfalen [1984J ECR1891 the CJEU made it clear that where such a right is infringed the judicial redress provided should not only compensate adequately for economic loss sustained but must provide a real deterrent against future infractions. The Labour Court has also affirmed that annual leave is for rest and recreation purposes and the value of it cannot be inbuilt to wages. In this regard the Court in the case of Cementation Skanska v Carroll, DWT 38/2003, found where, considering the requirements of the Working Time Directive, an award for compensation for loss of annual leave “need not be limited to the value of lost holidays.” In that case, the Court recognised that, where the right to annual leave is infringed, the redress “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.”

Accordingly having regard to the totality of evidence adduced in relation to this matter I am satisfied on the balance of probabilities that the complainants right to take annual leave as set out in Section 19(3) was infringed by paying him in lieu of that leave and accordingly I declare this claim to be well founded.  

I am satisfied on the balance of probabilities that this claim is well founded and I award the complainant €1,500 as compensation for this breach of the Organisation of Working Time Act in respect of the complainant’s right to take holidays.