Complainant

Respondent

Anonymised Parties

Van Sales Business Developer

Distribution Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00030224-001

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission SI No. 494 of 2004 and Clauses 6 of the EC (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of 200

CA-00030224-002

13/08/2019

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

CA-00030224-003

13/08/2019

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

CA-00030224-004

13/08/2019

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

CA-00030224-005

13/08/2019

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-00030224-006

13/08/2019

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

CA-00030224-007

13/08/2019

The Complainant worked for the Respondent as a driver and business developer from February 2019 until his resignation in June 2019. He is claiming he was not allowed proper breaks, that he was not informed of starting and finishing times and that he did not receive his written terms and conditions of employment. The Respondent denies the access to breaks and working time complaints but concedes that the Complainant did not receive a written statement of his terms and conditions of employment. The Complainant’s salary was €653.19 gross, net €619.90 net per week.

The Complainant states that the Respondent had no consideration of proper breaks. This was reflected in the manner that routes for the distribution of ice cream products were designed. He also claims that he was not informed of his start and finishing times. He accepts that he kept no records nor had any evidence of the specific working time and dates upon which his complaint was made, other than the assertions that he was making. He also submits that he was treated unfairly by the Respondent and this was the subject of a claim before another forum. He states that his working time claims was ‘not his main beef’ against the Respondent. The Complainant also asserts that he never received a written contract of employment nor written terms under the Terms of Employment (Information), Act 1994.

The Respondent submits that the Complainant commenced work as a casual articulated truck driver and that he received a full induction course including notification of the regulations concerning mobile workers. The Respondent further submits that the Complainant had numerous jobs in the sector and would be familiar with the rules and regulations governing mobile transport. Copies of the regulations and the relevant RSA publications are on site. In February 2019 the Complainant was successful in applying for the role of Business Developer. The Respondent submits that the Complainant agreed at his interview that his start and finish times were flexible over which he (the Complainant) had full control.

On the complaint relating to lack of work breaks whilst on the road, the Respondent submits documentary evidence purporting to show breaks between 1300 and 1400 in a working day, in the Complainant’s records. The Respondent concedes that these were automatically generated but were open to amendment by an employee using a mobile phone application to show the actual break taken on a given day. The Respondent further submits that at no point during the Complainant’s employment did he report that he failed to take this mandatory break. If he had done so, the records would have been amended accordingly.

On the claim that the Complainant was not informed of his starting and finishing times under working time legislation, the Respondent submits that as a salaried employee the Complainant had full control over his starting and finishing times. This was discussed at the Complainant’s interview and accepted by him as part of his contract of employment.

The Respondent submits that owing to an administrative error the Complainant did not receive a written copy of his contract nor of his terms and conditions of employment. The Respondent further submits that no loss or detriment, due to this oversight, was suffered by the Complainant and cited Irish Water v. Patrick Hall TED161 (Decision of the Labour Court 8th January 2016) to this effect.

CA-00030224-001 – Breaks from Work:

The European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 deals with breaks from work at Regulation 8:

8. Breaks from work

(1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

(4) Each break may be made up of separate periods of not less than 15 minutes each.

(5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

Other than broad assertions, the Complainant accepts that he did not present any specific evidence of dates of when he did not receive his mandatory breaks at the hearing. He was a seasoned road transport worker and I cannot accept that he would not be aware, under the Road Traffic Regulations and working time requirements, of the obligations pertaining to such breaks. The Respondent produced documentary evidence of records of automatic clock in and clock off times as well as break times. The Complainant argues rightly that these were automatically generated and did not reflect the reality on the ground, but the Respondent submits that these can be amended if informed by the Complainant that he did not take a break. The Complainant produced no evidence to indicate that he took steps to inform the Respondent specifically about breaks not taken, either through an online application, or by any other means. He accepts he took no verifiable action during the currency of his employment to assert the rights he claims were denied, through the grievance procedure or otherwise.

I conclude that the complaint is not well founded due to a lack of evidence and therefore fails.  

CA-00030224-003: No information in relation to starting and finishing times.

Section 17 of the Organisation of Working Time Act, 1997 provides:

17. Provision of information in relation to working time:

(1)    If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week…

The Complainant did not receive a copy of his contract of employment, but he does not disagree with the assertion by the Respondent that he was told at the interview of having flexible starting and finishing times at his own choice, in his salaried role as Business Developer. He accepted that this was how he operated in this role. I find that the Complainant had a contractual obligation, though not in writing, but nevertheless implied by his own conduct, in the operation of flexible starting and finishing times. Therefore, this complaint does not fall under section 17(1) of the Act as the Complainant understood the contractual basis of his starting and finishing time and therefore he is not eligible to avail of this section of the Act.

I conclude that the complaint is not well founded and therefore fails.

CA-00030224-003: Complaint of not receiving a statement in writing of full terms and conditions after two months, under the Terms of Employment (Information) Acts, 1994, as amended.

CA-00030224-007: Complaint of not receiving core terms after 5 days, under the Terms of Employment (Information) Acts, 1994, as amended.

There are two complaints here under section 3 of the Terms of Employment (Information) Acts, 1994, as amended.

Section 3 of the Act specifies the details that must be included in the written statement of terms and conditions that an employer is obliged to issue to each employee within two months of the employee commencing employment with that employer.

Section 3(1) provides as follows:

 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 23 of 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.

1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014;

(c) 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;

(d) 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;

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week.

This section, as amended by ss.3 and 7 of the Employment (Miscellaneous Provisions) Act 2018, specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subs.(1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than two months after the date of commencement of employment.

Subsection (4) of the same section 3 places a further specific obligation on the employer in relation to the statement required under subsection (1) as follows:

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

Section 7(2) of the Act provides as follows in relation to redress: -

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, 6 or 6C 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, …

…(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (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 Complainant submits two claims under the above legislation (1) that he did not receive a written statement of his terms and conditions after two months in employment, as outlined at section 3(1) of the Act above and (2) that he did not receive a statement of his core terms as outlined in section 3(1A) above.

The Respondent has conceded that the Complainant did not receive any written contract nor indeed written terms as specified by the Act. The Respondent submits that there was no prejudice suffered by the Complainant and that I should apply the logic as adopted by the Labour Court in Irish Water v. Patrick Hall TED161. The Labour Court decision in Irish Water can be distinguished from this instant case, in that Irish Water pertains to minor technical detail in statements of Terms and Conditions that were already received, whereas in this case no statement was proffered at any stage. The Court’s decision in Maano Foods (Dungarvan) Limited Trading as Domino’s Pizza v Marcin Zygala TED1914(Decision of the Labour Court dated 22nd July 2019) is more relevant in this case, where it states:

“It is well-established in the Determinations of this Court that it is not necessary for a Complainant under the Act to demonstrate that he or she suffered a detriment arising from employer’s non-compliance with the Act in order to secure compensation.”

In considering a compensatory award in this case it must emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. I accept the evidence of the Respondent in this case, in that it endeavoured at all times to comply with road traffic and working time legislation. No cogent evidence was given otherwise, but I find it unacceptable in such a regulatory environment, that the Complainant was not given his terms and conditions of employment in the manner that complies with the Act. Therefore, I find that the complaints are well founded and that compensation of one week’s wages on each count is merited.

CA-00030224-004: The Complaint is well founded, and I order the Respondent to pay the Complainant €653.00

CA-00030224-007: The Complaint is well founded, and I order the Respondent to pay the Complainant €653.00

CA-00030224-001: Complaint pursuant to Regulations 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012: Breaks at Work.

I find that the complaint is not well founded and therefore fails.

CA-00030224-002: Complaint withdrawn by the Complainant.

CA-0030224-003: Complaint pursuant to section 17 of the Organisation of Working Time Act, 1997: Information on starting and finishing times.

I find that the complaint is not well founded and therefore fails.

CA-0030224-004: complaint pursuant to section 3(1) of the Terms of Employment (Information) Act, 1994 as amended: Non-receipt of written terms and conditions within 2 months of commencement of employment.

I find that the complaint is well founded, and I award the Complainant €653.00 in compensation.

CA-0030224-005: Complaint withdrawn by Complainant.

CA-0030224-006: Complaint withdrawn by Complainant.

CA-0030224-007: Complaint pursuant to section 3(1A) of the Terms of Employment: non-receipt of core terms of employment within 5 days of commencement of employment.

I find that the complaint is well founded, and I award the Complainant €653.00 in compensation.

Mobile Workers, Breaks at Work, Terms of Employment,