Complainant

Respondent

Anonymised Parties

A Truck Driver

A Transport Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00022631-001

16/10/2018

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

CA-00022631-002

16/10/2018

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

CA-00022631-003

16/10/2018

The Complainant claims that he commenced his employment with Company ABC as a driver in or around 5th August 2016. He claims that a transfer of undertakings took place on 5th February 2018 and as a result he began working for the Respondent on that date. The Complainant claims that he ceased his employment on 24th April 2018.

On 16th October 2018 the Complainant referred his complaints to the WRC claiming that he had to leave his job due to the conduct of the Respondent, that he did not get his weekly rest periods and that the Respondent has not paid him or paid him less than the amount due.

The Adjudication hearing took place on the 11th December 2018. Additional submissions were received from the parties on 12th and 19th of December 2018.

The Respondent submitted as a preliminary matter that the Complainant does not have the necessary locus standi to pursue a claim under the Act, as he is precluded by virtue of Section 2(1)(a).

The Respondent argues that the Complainant commenced his employment with the Respondent on 12th February 2018 and terminated his employment by mutual agreement on 24th April 2018. Therefore, the Complainant does not have the service to qualify for taking claims under the Unfair Dismissals Act.

The Respondent rejects the assertion that a transfer had taken place within the meaning of the Regulations.

The Respondent submits that the Complainant commenced employment with the Respondent on 12th February 2018 as a truck driver. The Respondent submits that prior to this the Complainant had worked with Company ABC. The Respondent submits that this business is still undergoing the process of closure, with the business owner taking up a manager role within the Respondent. The Respondent submits that all 66 employees of ABC were made redundant and those entitled to a redundancy payment received this. The Respondent exhibited a copy of communication issued by the appointed Liquidator to the Complainant dated 5th March 2018 in that regard.

The Respondent submits that the drivers of ABC were informed that there were opportunities within the Respondent’s company that they could express an interest in. The Respondent claims that the Complainant did this and assumed a role as a driver.

The Respondent submits that there was no transfer of assets or employees and the ABC depot was closed.

Mr D (formerly of ABC) attended the hearing and confirmed that he had secured employment with the Respondent. He also stated that the Liquidator dealt with the redundancies and other entitlements of all employees of ABC. He noted that he helped some 20 employees of ABC to secure employment with the Respondent (10-11 have left since). He stressed that the employees of ABC moved to 5-6 different companies. Mr D clarified also that the trucks went back to the leasing company and assets are being sold off and no assets were transferred to the Respondent.

The Complainant claims that there was a transfer of undertakings between the company ABC and the Respondent on 2nd February 2018 and he started working with the Respondent on 5th February 2018.

The Complainant submits that there are two requirements which must be met, firstly there must be a change in the identity of the natural or legal person operating the economic entity and secondly, the economic entity itself must retain its identity. Counsel for the Complainant cited Daddy’s Dance Hall A/S [1988] I.R.L.R 315. Further, the Complainant submits that there is no need for there to be a direct contractual relationship between the transferrer and the transferee (Redmond Stichting v Bartol [1992] I.R.L.R. 336). Further, the Complainant relies on O’Toole v MMO2 Ltd. (UD326/2002) that moving an employee from one associated company to another will not necessarily amount to a transfer. The Complainant submits that ABC and the Respondent were not associated companies.

The Complainant argues that the employees of ABC were transferred to the Respondent on 2nd February 2018 by way of a meeting on the same date. The Complainant maintains that he and majority of the employees of ABC transferred to the Respondent. The Complainant submits that he was told by Mr D that he should attend a meeting with the Respondent in its office. The Complainant claims that he did attend said meeting with the Respondent, Mr D and several other drivers where he was informed that the Respondent would be taking on the Complainant, and other drivers, as employees. The Complainant claims that he started working for the Respondent on 5th February 2018. The Complainant submits that he was available for work but as a result of the Respondent not providing the Complainant with a truck he was unable to work. The Complainant submits that he was first given a truck to drive by the Respondent on 12th February 2018,

The Complainant also cited the case Spejkers [1986] 2 CMLR where the ECJ held that all factual circumstances of the transaction must be taken into consideration.

The Complainant submits that the Respondent provides a haulage service and after 2nd February 2018 the majority of ABC’s customers became customers of the Respondent. The Complainant claims that he carried out identical duties for ABC and the Respondent and the interruption in activities was minimal due to the unavailability of a truck which would be provided by the Respondent.

In all the above circumstances the Complainant maintains that there was a transfer of undertakings.

The Complainant argues that in the High Court case of Mythen v The Employment Appeals Tribunal [1990] E.L.R. 1 it was held that the Complainant can fix the liability with either the transferrer or the transferee. The Complainant also cited Section 4 of the Regulations. The Complainant maintains that the Respondent is liable for the claims as set out against ABC and the transfer of the Complainant’s rights is automatic.

The preliminary issue to be decided is whether or not the transfer of the Complainant’s employment from ABC to the Respondent was such as to be covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The law in this area is covered by the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, S.I. No.131/2003 and the relevant provisions of Directive 77/187/EEC together with the case law arising.

The relevant sections of S.I.131/2003 are as follows:

Regulation 3 (1)“These Regulations shall apply to any transfer of undertaking, business, or part of an undertaking or business from one employ as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2)Subject to this Regulation, in these Regulations-“ transfer” means the transfer of an economic entity which retains its identity;“economic entity” means an organised grouping of resources which has the objective of pursuing    an economic activity whether or not that activity is for profit or whether it is central or ancillary to  another economic or administrative entity.

(3) These Regulations apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.”  

Regulation 4 “(1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force of another collective agreement.”

Regulation 8 “(1) The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of-(a)   The date or proposed date of the transfer(b)   The reasons for the transfer(c)    The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and(d)   Any measures envisaged in relation to the employees.”

Paragraph (6) deals with the situation where there are no employee’s representatives and states that the above information must be given in writing to each employee not later than 30 days before the transfer.

The Regulations essentially provide protections for workers in the event of a legal transfer taking place as between one employer and another employer. Those protections extend to the contract of employment and against dismissal where the transfer is, of itself, the reason for the dismissal.

In this case the Complainant worked as a truck driver for ABC. It was disputed whether a meeting took place on 2nd February 2018 at which Mr. D of ABC informed the Complainant that he was transferring his business to the Respondent. However, the evidence before me shows that the Company ABC was experiencing financial difficulty and was facing liquidation. As a consequence, a liquidator was appointed, and a creditors meeting took place on 20th February 2018. The appointed Liquidator subsequently wrote to all employees of ABC and processed some 60 claims in respect of their entitlements and referred them to the Insolvency Payments Section of the Department of Employment Affairs and Social Protection. A copy of correspondence dated 5th March 2018 addressed to the Complainant was exhibited at the hearing. The Liquidator requested that the Complainant confirms the employment details and provides any missing details in order for the Liquidator to complete the appropriate forms. Further correspondence from the Liquidator to the Complainant’s solicitor dated 9th July 2018 was submitted post-hearing. The Liquidator confirmed that he had processed “circa 60 claims for unpaid wages and employee entitlements and that I would process his claim in the same manner once he replied with his entitlements.” The Liquidator noted that he met with the Complainant and had an IP1 claim form (Insolvency Payment Scheme) with him at the meeting, but the Complainant requested that he dealt with his solicitor. He also noted that the delay in processing the Complainant’s form appears to be with himself or his representative. The Liquidator attached the form to his letter and requested the Complainant to review and sign same.

I note that the Liquidator sought information from the Respondent in respect of the nature of relationship with Mr. D and the company ABC subsequent to the date of the liquidation. He forwarded the Respondent’s reply to his query to the Complainant’s solicitor. The Respondent in its reply dated 20th March 2018 confirmed that there have been no contracts, assets or materials transferred to the Respondent from ABC. The Respondent noted that a number of customers of ABC who were concerned about their ongoing service approached the Respondent to provide a transport service without offering a contract.

Mr D also confirmed at the hearing that there was no property, tangible assets or employees transfer in this case.

In Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice Case C-13/95 the European Court of Justice drew a distinction between businesses that are asset-reliant, on the one hand, and those that are labour-intensive, on the other.

In Liskojärvi v Oy Liikenne AB [2001] the Directive was held not to apply as undertaking (bus operator) was asset reliant and assets had not been transferred.

In Farrell v United Cargo Services & CityWest Transport Ltd. UD96/2004 the Employment Appeals Tribunal applied the reasoning of the ECJ and held there had not been a transfer of undertakings in the circumstances.

On the basis of the foregoing analysis of the case law and having regard to all of the submissions made by the parties to the instant case I conclude that a transfer of undertakings within the meaning of the Regulations did not occur.

In relation to the Respondent’s assertion that the Complainant does not have the necessary locus standi I find as follow.

Section 2(1)(a) of the Unfair Dismissals Act stipulates that

“2. Exclusions

(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him,…”

On the basis of my finding that no transfer of undertaking occurred I find that the Complainant does not have the required service to pursue his claim under the Act.

The Complainant does not have the required service to pursue his claim under the Act. I declare this complaint not well-founded.

The Complainant submits that Friday evenings, Saturdays and Sundays were his rest periods, but he was constantly contacted by the Respondent during those periods by phone / text messages.

The Complainant submits that the Respondent failed to provide him with proper rest periods most evenings. The Complainant was disturbed most nights with text messages explaining the next day route. The Complainant argues that he was disturbed twice one night (8th March 2018) at 9:45pm and 10:15 pm when the Respondent contacted him asking to reduce his driving hours to facilitate the company. At the hearing, the Complainant stated that he was asked to reduce his rest to 9 hours. The Complainant stated that there was another incident of that nature but could not recall the details.

The Complainant submits that he was contacted on 11th February, 4th March, 11th March, 18th March in relation to schedule for next day, on 7th and 8th April (non-attendance due to a funeral), 14th and 15th of April 2018.

The Complainant submits that on 7th April 2018 (Saturday) he informed the Respondent by text message as was the practice, of a bereavement in his family and therefore his unavailability for the forthcoming Monday, 9th April 2018. The Complainant submits that on 8th April the Respondent contacted him while he was attending the funeral to request the truck the Complainant had previously driven. The Complainant alleges that the Respondent insisted that he removed his personal belongings from the truck so it could be collected. The Complainant claims that he was required to leave the funeral, travel to the location where the truck was stored to prepare it for the Respondent. The Complainant argues that the Respondent continued to contact him throughout the day despite the Complainant informing the Respondent of the bereavement and these days being his rest periods.

The Complainant exhibited copies of phone communication on 7th April 2018 when he informs the Respondent of the bereavement to which he receives a response “No problem. Sorry to hear that. Where are the keys of the truck?” There also appears to be a phone call from the Respondent on 8th April. The Complainant also exhibited copy of text messages of 12 and 14th April where on 12th April he sent a query “What’s the story for next week is there a truck coming down for me” to which the Respondent replied “Howya Ypur starting from[location] in the morning @9am I think”.

The Complainant stated that he asked Mr S of the Respondent not to contact him on the weekends, but he confirmed that he never made a formal complaint.

The Respondent submits that the Complainant, in the short time he worked with the Respondent, worked Monday to Friday. The rest period was therefore Friday evening, all day Saturday and all day Sunday. The Complainant did not work these days at any point and there was no breach under the Act. In support, the Respondent exhibited copies of tachographs.

The Respondent acknowledges that text messages were issued over the weekend. The Respondent submits that it is a standard practice to send a notification to drivers to inform of the collection point, route etc. for the next week. The Respondent submits that there was no communication back and forth. Rather, a notification was sent, which did not require a reply and could be accessed on Monday morning.

This complaint was referred under Section 27 of the Organisation of Working Time Act, 1997, in relation to an alleged breach of that Act in terms of weekly rest periods, which is comprised in Section 13 of the Act.

The sector of activity in which the Respondent is engaged is governed by Directive 2002/15/EC and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012 concerning the organisation of working time of persons performing road transport activities.

In Tansey Transport Limited v Marek Rog DWT15104 the Labour Court held:

“In Determination DWT1398, Lucey Transport Limited and Marius Serenas this Court extensively considered the applicability to mobile workers of provisions of the Act that overlap with provisions of the Regulations. Having considered the applicable legal principles the Court concluded in that case as follows: -

It seems to the Court that there are clear difficulties with the provisions of the Act and those of the Regulations in their current form standing side by side and a Rights Commissioner, and this Court on appeal, having concurrent jurisdiction to entertain a complaint arising from the same set of facts under both the Act and the Regulations. Such a result could not have been intended. Moreover, a consideration of considerable relevance in the Goode Concrete case was that the Regulations then in force operated in the field of criminal law only whereas the Act provided for civil redress in disputes between individual workers and their employer. That is no longer the case. In these circumstances, there is force in the argument that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC, (as is clear from Recital 2 in the preamble to Directive 2002/15/EC) any conflict or inconsistency between the Act, which gives effect to the latter, and the Regulations, which give effect to the former, should be resolved in favour of the Regulations.

The Court then continued: -

It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.

It is noted that the Minister for Jobs, Enterprise and Innovation has now made Regulations pursuant to his powers under sections 3(3), 7 and 25 of the Act entitled Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 (S.I. 342 of 2015).”

Section 3 of S.I. 342 of 2015, Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 states:

“Sections 11,12,13,15 and 16 of the Act do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC.”

The Labour Court has held that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. The Regulations, rather than the Act, should be relied upon in pursuing complaints concerning any infringements of the rights of such workers concerning their working time. (DWT1398).

In DWT 1577 Stan O’Reilly T/A C&D Recycling v Aigars Plauka the Court held:

“In its decision in Lucey Transport Limited and Maruis Serenas DWT1398, this Court clearly indicated that where there was conflict between the Act and the Regulations, then the Regulations took precedence. Where there was no conflict between the Regulations and the Act, the Act continued to have effect. Consequently, only those provision of the Act that do not relate to working time, including rest and intervals at work, are applicable to workers whose employment comes within the ambit of the aforesaid Regulations. Therefore, the Court decides that the Complainant’s complaints under Sections 11, 12 and 15 are inappropriate to be adjudicated upon under the 1997 Act…”

I acknowledge that the WRC complaint form is not a statutory form and it is allowed for persons to add comments on the form if they feel a requirement to elaborate on details submitted. However, my difficulty is that one of the main purposes of the Statutory Instrument was to specifically exclude the application of certain sections of the Act to transport workers.  I am cognisant of the fact that the Complainant was legally represented at all stages and had the benefit of professional advice.

Having considered the matter, I am satisfied that the entitlement of mobile workers to weekly rest periods are governed by the Regulations and not by the Act.   Accordingly, I lack jurisdiction to hear the claim under Section 27 of the Act.

I find that I have no jurisdiction to hear the claim under the Organisation of Working Time Act.

The Complainant submits that he is due significant overtime. The Complainant argues that he always recorded his overtime on the time sheets which were submitted to the Respondent and he has tachograph evidence. The Complainant claims that he asked for his overtime to be sorted on a number of occasions.

The Complainant also claims that he received no wages for the week of 5th February to 12th February 2018 and for his last week of employment.

At the hearing, the Complainant claimed that ABC which was transferred into the Respondent’s company failed to pay him the following:

€800 for the week 16th-20th January 2018, €800 for the week 23rd-27th January 2018, €320 for 31st January and 1st February 2018.

The Complainant also submits that ABC, which transferred into the Respondent’s company failed to pay him sums due to him in the form of overtime. The Complainant submits that he was contracted to work 45 hours a week but in reality worked 65 hours. The Complainant argues that the difference in pay was €355.40 per week for 24 months totalling €36,961.60 on overtime.

The Complainant also claims that the Respondent failed to pay him the following:

€741 for the week 5th - 9th February 2018 €741 for the week 10th - 16th April 2018 €700 – one weeks’ pay in lieu of notice €1,744 in respect of overtime €148 – one day’s wages

The Complainant submits that by letter dated 20th April 2018, the HR Manager of the Respondent outlined the outstanding amount the Respondents says are due to the Complainant.

The Complainant provided copies of documents titled “Weekly Driver sheet” containing his manual notes of start/finish times, routes etc.

The Respondent submits that there was an issue around the final payment not being made. This has been rectified by cheque. The Respondent submits that this was because the cheque was left with an employee to issue but they have since left the business. This was, therefore, a simple error and had since been corrected.

The Respondent also submits that it does not pay overtime. The Respondent argues that there is a salary paid with no overtime for hours worked over contract and no monies are owed.

The Respondent exhibited calculations of the average hours worked by the Complainant showing that he would have worked 39.95 hours a week on average.

The Respondent exhibited also details of tachographs for the period from 12th February 2018 to 7th April 2018.

The Complainant in the WRC referral form alleged that he was not paid for the overtime he had worked and that he did not receive his wages for week 5th -12th February 2018 and the payment for his last week. At the hearing, Counsel presented a list of alleged non-payments in relation to both ABC and the Respondent.

In view of my finding that no transfer of undertakings occurred within the meaning of the Regulations I dismiss the Complainant’s claim of any alleged non-payments in respect of ABC. These would have been dealt with by the Liquidator had the Complainant engaged with him.

Having reviewed the evidence before me I find that the Complainant was paid €500 gross a week plus expenses and not €741 as claimed by the Complainant.

In respect of the Complainant’s assertion that he is due €741 for week 5th - 9th February 2018 I find that the Complainant confirmed that he did not perform any work for the Respondent until 12th February 2018. I find his assertion that he was available for work from the 5th February 2018 but as a result of the Respondent not providing him with a truck he was unable to work not plausible. In that regard, I prefer the evidence of the Respondent that the Complainant was not available to travel to Dublin to pick up the truck until 12th February 2018 and he did not start his employment with the Respondent until that date.

I find that on 16th April 2018 the Complainant resigned his position and gave the Respondent one week’s notice. The Respondent confirmed by return email that the Complainant’s outstanding monies include: payment for week ending 20th April 2018: €500, payment for 23rd and 24th April 2018: €200, holidays acquired: €200 (2 days)

Payslip dated 20th April 2018 shows the sum of €700 and two days of annual leave. I note that there was some oversight in issuing the cheque. However, it was confirmed at the hearing that the cheque was re-issued and sent to the Complainant via registered post of 6th December 2018. I note that the Complainant stated that he did not cash the cheque.

In respect of the Complainant’s claim that he is owed overtime payment I find that the Respondent’s record of hours worked by the Complainant appear to be accurate. The Complainant’s manual record does not correspond with the tachograph. Moreover, it does not include any breaks, which are not reckonable as working time as is clear from Regulation 6 of the Regulations. Having considered the evidence made available to me I find that the Respondent’s records are credible and reflect the actual working hours of the Complainant. The said records show that the Complainant worked on average 39.95 hours a week.

Taking all of the foregoing into consideration I find that the complaint is not well-founded.

Organisation of Working Time Act, mobile workers, transfer of undertakings

Complainant

Respondent

Parties

Philip Dooley

STL Logistics

Complainant

Respondent

Anonymised Parties

A Truck Driver

A Transport Company

Representatives

Eleanor Power, B.L. instructed by Sean Ormonde & Co. Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00022631-001

16/10/2018

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

CA-00022631-002

16/10/2018

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

CA-00022631-003

16/10/2018

The Complainant claims that he commenced his employment with Company ABC as a driver in or around 5th August 2016. He claims that a transfer of undertakings took place on 5th February 2018 and as a result he began working for the Respondent on that date. The Complainant claims that he ceased his employment on 24th April 2018.

On 16th October 2018 the Complainant referred his complaints to the WRC claiming that he had to leave his job due to the conduct of the Respondent, that he did not get his weekly rest periods and that the Respondent has not paid him or paid him less than the amount due.

The Adjudication hearing took place on the 11th December 2018. Additional submissions were received from the parties on 12th and 19th of December 2018.

The Respondent submitted as a preliminary matter that the Complainant does not have the necessary locus standi to pursue a claim under the Act, as he is precluded by virtue of Section 2(1)(a).

The Respondent argues that the Complainant commenced his employment with the Respondent on 12th February 2018 and terminated his employment by mutual agreement on 24th April 2018. Therefore, the Complainant does not have the service to qualify for taking claims under the Unfair Dismissals Act.

The Respondent rejects the assertion that a transfer had taken place within the meaning of the Regulations.

The Respondent submits that the Complainant commenced employment with the Respondent on 12th February 2018 as a truck driver. The Respondent submits that prior to this the Complainant had worked with Company ABC. The Respondent submits that this business is still undergoing the process of closure, with the business owner taking up a manager role within the Respondent. The Respondent submits that all 66 employees of ABC were made redundant and those entitled to a redundancy payment received this. The Respondent exhibited a copy of communication issued by the appointed Liquidator to the Complainant dated 5th March 2018 in that regard.

The Respondent submits that the drivers of ABC were informed that there were opportunities within the Respondent’s company that they could express an interest in. The Respondent claims that the Complainant did this and assumed a role as a driver.

The Respondent submits that there was no transfer of assets or employees and the ABC depot was closed.

Mr D (formerly of ABC) attended the hearing and confirmed that he had secured employment with the Respondent. He also stated that the Liquidator dealt with the redundancies and other entitlements of all employees of ABC. He noted that he helped some 20 employees of ABC to secure employment with the Respondent (10-11 have left since). He stressed that the employees of ABC moved to 5-6 different companies. Mr D clarified also that the trucks went back to the leasing company and assets are being sold off and no assets were transferred to the Respondent.

The Complainant claims that there was a transfer of undertakings between the company ABC and the Respondent on 2nd February 2018 and he started working with the Respondent on 5th February 2018.

The Complainant submits that there are two requirements which must be met, firstly there must be a change in the identity of the natural or legal person operating the economic entity and secondly, the economic entity itself must retain its identity. Counsel for the Complainant cited Daddy’s Dance Hall A/S [1988] I.R.L.R 315. Further, the Complainant submits that there is no need for there to be a direct contractual relationship between the transferrer and the transferee (Redmond Stichting v Bartol [1992] I.R.L.R. 336). Further, the Complainant relies on O’Toole v MMO2 Ltd. (UD326/2002) that moving an employee from one associated company to another will not necessarily amount to a transfer. The Complainant submits that ABC and the Respondent were not associated companies.

The Complainant argues that the employees of ABC were transferred to the Respondent on 2nd February 2018 by way of a meeting on the same date. The Complainant maintains that he and majority of the employees of ABC transferred to the Respondent. The Complainant submits that he was told by Mr D that he should attend a meeting with the Respondent in its office. The Complainant claims that he did attend said meeting with the Respondent, Mr D and several other drivers where he was informed that the Respondent would be taking on the Complainant, and other drivers, as employees. The Complainant claims that he started working for the Respondent on 5th February 2018. The Complainant submits that he was available for work but as a result of the Respondent not providing the Complainant with a truck he was unable to work. The Complainant submits that he was first given a truck to drive by the Respondent on 12th February 2018,

The Complainant also cited the case Spejkers [1986] 2 CMLR where the ECJ held that all factual circumstances of the transaction must be taken into consideration.

The Complainant submits that the Respondent provides a haulage service and after 2nd February 2018 the majority of ABC’s customers became customers of the Respondent. The Complainant claims that he carried out identical duties for ABC and the Respondent and the interruption in activities was minimal due to the unavailability of a truck which would be provided by the Respondent.

In all the above circumstances the Complainant maintains that there was a transfer of undertakings.

The Complainant argues that in the High Court case of Mythen v The Employment Appeals Tribunal [1990] E.L.R. 1 it was held that the Complainant can fix the liability with either the transferrer or the transferee. The Complainant also cited Section 4 of the Regulations. The Complainant maintains that the Respondent is liable for the claims as set out against ABC and the transfer of the Complainant’s rights is automatic.

The preliminary issue to be decided is whether or not the transfer of the Complainant’s employment from ABC to the Respondent was such as to be covered by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The law in this area is covered by the European Communities (Protection of Employees on Transfer of Undertaking) Regulations 2003, S.I. No.131/2003 and the relevant provisions of Directive 77/187/EEC together with the case law arising.

The relevant sections of S.I.131/2003 are as follows:

Regulation 3 (1)“These Regulations shall apply to any transfer of undertaking, business, or part of an undertaking or business from one employ as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

(2)Subject to this Regulation, in these Regulations-“ transfer” means the transfer of an economic entity which retains its identity;“economic entity” means an organised grouping of resources which has the objective of pursuing    an economic activity whether or not that activity is for profit or whether it is central or ancillary to  another economic or administrative entity.

(3) These Regulations apply to public and private undertakings engaged in economic activities whether or not they are operating for gain.”  

Regulation 4 “(1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force of another collective agreement.”

Regulation 8 “(1) The transferor and transferee concerned in a transfer shall inform their respective employees’ representatives affected by the transfer of-(a)   The date or proposed date of the transfer(b)   The reasons for the transfer(c)    The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and(d)   Any measures envisaged in relation to the employees.”

Paragraph (6) deals with the situation where there are no employee’s representatives and states that the above information must be given in writing to each employee not later than 30 days before the transfer.

The Regulations essentially provide protections for workers in the event of a legal transfer taking place as between one employer and another employer. Those protections extend to the contract of employment and against dismissal where the transfer is, of itself, the reason for the dismissal.

In this case the Complainant worked as a truck driver for ABC. It was disputed whether a meeting took place on 2nd February 2018 at which Mr. D of ABC informed the Complainant that he was transferring his business to the Respondent. However, the evidence before me shows that the Company ABC was experiencing financial difficulty and was facing liquidation. As a consequence, a liquidator was appointed, and a creditors meeting took place on 20th February 2018. The appointed Liquidator subsequently wrote to all employees of ABC and processed some 60 claims in respect of their entitlements and referred them to the Insolvency Payments Section of the Department of Employment Affairs and Social Protection. A copy of correspondence dated 5th March 2018 addressed to the Complainant was exhibited at the hearing. The Liquidator requested that the Complainant confirms the employment details and provides any missing details in order for the Liquidator to complete the appropriate forms. Further correspondence from the Liquidator to the Complainant’s solicitor dated 9th July 2018 was submitted post-hearing. The Liquidator confirmed that he had processed “circa 60 claims for unpaid wages and employee entitlements and that I would process his claim in the same manner once he replied with his entitlements.” The Liquidator noted that he met with the Complainant and had an IP1 claim form (Insolvency Payment Scheme) with him at the meeting, but the Complainant requested that he dealt with his solicitor. He also noted that the delay in processing the Complainant’s form appears to be with himself or his representative. The Liquidator attached the form to his letter and requested the Complainant to review and sign same.

I note that the Liquidator sought information from the Respondent in respect of the nature of relationship with Mr. D and the company ABC subsequent to the date of the liquidation. He forwarded the Respondent’s reply to his query to the Complainant’s solicitor. The Respondent in its reply dated 20th March 2018 confirmed that there have been no contracts, assets or materials transferred to the Respondent from ABC. The Respondent noted that a number of customers of ABC who were concerned about their ongoing service approached the Respondent to provide a transport service without offering a contract.

Mr D also confirmed at the hearing that there was no property, tangible assets or employees transfer in this case.

In Suzen v Zehnacker Gebaudereinigung GmbH Krankenhausservice Case C-13/95 the European Court of Justice drew a distinction between businesses that are asset-reliant, on the one hand, and those that are labour-intensive, on the other.

In Liskojärvi v Oy Liikenne AB [2001] the Directive was held not to apply as undertaking (bus operator) was asset reliant and assets had not been transferred.

In Farrell v United Cargo Services & CityWest Transport Ltd. UD96/2004 the Employment Appeals Tribunal applied the reasoning of the ECJ and held there had not been a transfer of undertakings in the circumstances.

On the basis of the foregoing analysis of the case law and having regard to all of the submissions made by the parties to the instant case I conclude that a transfer of undertakings within the meaning of the Regulations did not occur.

In relation to the Respondent’s assertion that the Complainant does not have the necessary locus standi I find as follow.

Section 2(1)(a) of the Unfair Dismissals Act stipulates that

“2. Exclusions

(1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him,…”

On the basis of my finding that no transfer of undertaking occurred I find that the Complainant does not have the required service to pursue his claim under the Act.

The Complainant does not have the required service to pursue his claim under the Act. I declare this complaint not well-founded.

The Complainant submits that Friday evenings, Saturdays and Sundays were his rest periods, but he was constantly contacted by the Respondent during those periods by phone / text messages.

The Complainant submits that the Respondent failed to provide him with proper rest periods most evenings. The Complainant was disturbed most nights with text messages explaining the next day route. The Complainant argues that he was disturbed twice one night (8th March 2018) at 9:45pm and 10:15 pm when the Respondent contacted him asking to reduce his driving hours to facilitate the company. At the hearing, the Complainant stated that he was asked to reduce his rest to 9 hours. The Complainant stated that there was another incident of that nature but could not recall the details.

The Complainant submits that he was contacted on 11th February, 4th March, 11th March, 18th March in relation to schedule for next day, on 7th and 8th April (non-attendance due to a funeral), 14th and 15th of April 2018.

The Complainant submits that on 7th April 2018 (Saturday) he informed the Respondent by text message as was the practice, of a bereavement in his family and therefore his unavailability for the forthcoming Monday, 9th April 2018. The Complainant submits that on 8th April the Respondent contacted him while he was attending the funeral to request the truck the Complainant had previously driven. The Complainant alleges that the Respondent insisted that he removed his personal belongings from the truck so it could be collected. The Complainant claims that he was required to leave the funeral, travel to the location where the truck was stored to prepare it for the Respondent. The Complainant argues that the Respondent continued to contact him throughout the day despite the Complainant informing the Respondent of the bereavement and these days being his rest periods.

The Complainant exhibited copies of phone communication on 7th April 2018 when he informs the Respondent of the bereavement to which he receives a response “No problem. Sorry to hear that. Where are the keys of the truck?” There also appears to be a phone call from the Respondent on 8th April. The Complainant also exhibited copy of text messages of 12 and 14th April where on 12th April he sent a query “What’s the story for next week is there a truck coming down for me” to which the Respondent replied “Howya Ypur starting from[location] in the morning @9am I think”.

The Complainant stated that he asked Mr S of the Respondent not to contact him on the weekends, but he confirmed that he never made a formal complaint.

The Respondent submits that the Complainant, in the short time he worked with the Respondent, worked Monday to Friday. The rest period was therefore Friday evening, all day Saturday and all day Sunday. The Complainant did not work these days at any point and there was no breach under the Act. In support, the Respondent exhibited copies of tachographs.

The Respondent acknowledges that text messages were issued over the weekend. The Respondent submits that it is a standard practice to send a notification to drivers to inform of the collection point, route etc. for the next week. The Respondent submits that there was no communication back and forth. Rather, a notification was sent, which did not require a reply and could be accessed on Monday morning.

This complaint was referred under Section 27 of the Organisation of Working Time Act, 1997, in relation to an alleged breach of that Act in terms of weekly rest periods, which is comprised in Section 13 of the Act.

The sector of activity in which the Respondent is engaged is governed by Directive 2002/15/EC and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012 concerning the organisation of working time of persons performing road transport activities.

In Tansey Transport Limited v Marek Rog DWT15104 the Labour Court held:

“In Determination DWT1398, Lucey Transport Limited and Marius Serenas this Court extensively considered the applicability to mobile workers of provisions of the Act that overlap with provisions of the Regulations. Having considered the applicable legal principles the Court concluded in that case as follows: -

It seems to the Court that there are clear difficulties with the provisions of the Act and those of the Regulations in their current form standing side by side and a Rights Commissioner, and this Court on appeal, having concurrent jurisdiction to entertain a complaint arising from the same set of facts under both the Act and the Regulations. Such a result could not have been intended. Moreover, a consideration of considerable relevance in the Goode Concrete case was that the Regulations then in force operated in the field of criminal law only whereas the Act provided for civil redress in disputes between individual workers and their employer. That is no longer the case. In these circumstances, there is force in the argument that since Directive 2002/15/EC takes precedence over Directive 2003/88/EC, (as is clear from Recital 2 in the preamble to Directive 2002/15/EC) any conflict or inconsistency between the Act, which gives effect to the latter, and the Regulations, which give effect to the former, should be resolved in favour of the Regulations.

The Court then continued: -

It seems that any ambiguity concerning the applicability of the Act to workers engaged in activity now covered by S.I. 36/2012 could easily be resolved by the making of regulations pursuant to s.3(3) of the Act exempting such workers from the relevant provision of the Act. Regrettably, no such regulations have been made. Nevertheless, the Court has come to the conclusion that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. Moreover, when read as whole, it could not be said that the Regulations now provide a lesser level of protection to workers to whom they relate than that provided by the Act. It follows that the Regulations, rather than the Act, should now be relied upon in pursuing complaints concerning any infringement of the rights of such workers concerning their working time.

It is noted that the Minister for Jobs, Enterprise and Innovation has now made Regulations pursuant to his powers under sections 3(3), 7 and 25 of the Act entitled Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 (S.I. 342 of 2015).”

Section 3 of S.I. 342 of 2015, Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 states:

“Sections 11,12,13,15 and 16 of the Act do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC.”

The Labour Court has held that following the promulgation of S.I. 36/2012, the provisions of those Regulations set down the applicable law concerning the regulation of working time of those to whom they relate. The Regulations, rather than the Act, should be relied upon in pursuing complaints concerning any infringements of the rights of such workers concerning their working time. (DWT1398).

In DWT 1577 Stan O’Reilly T/A C&D Recycling v Aigars Plauka the Court held:

“In its decision in Lucey Transport Limited and Maruis Serenas DWT1398, this Court clearly indicated that where there was conflict between the Act and the Regulations, then the Regulations took precedence. Where there was no conflict between the Regulations and the Act, the Act continued to have effect. Consequently, only those provision of the Act that do not relate to working time, including rest and intervals at work, are applicable to workers whose employment comes within the ambit of the aforesaid Regulations. Therefore, the Court decides that the Complainant’s complaints under Sections 11, 12 and 15 are inappropriate to be adjudicated upon under the 1997 Act…”

I acknowledge that the WRC complaint form is not a statutory form and it is allowed for persons to add comments on the form if they feel a requirement to elaborate on details submitted. However, my difficulty is that one of the main purposes of the Statutory Instrument was to specifically exclude the application of certain sections of the Act to transport workers.  I am cognisant of the fact that the Complainant was legally represented at all stages and had the benefit of professional advice.

Having considered the matter, I am satisfied that the entitlement of mobile workers to weekly rest periods are governed by the Regulations and not by the Act.   Accordingly, I lack jurisdiction to hear the claim under Section 27 of the Act.

I find that I have no jurisdiction to hear the claim under the Organisation of Working Time Act.

The Complainant submits that he is due significant overtime. The Complainant argues that he always recorded his overtime on the time sheets which were submitted to the Respondent and he has tachograph evidence. The Complainant claims that he asked for his overtime to be sorted on a number of occasions.

The Complainant also claims that he received no wages for the week of 5th February to 12th February 2018 and for his last week of employment.

At the hearing, the Complainant claimed that ABC which was transferred into the Respondent’s company failed to pay him the following:

€800 for the week 16th-20th January 2018, €800 for the week 23rd-27th January 2018, €320 for 31st January and 1st February 2018.

The Complainant also submits that ABC, which transferred into the Respondent’s company failed to pay him sums due to him in the form of overtime. The Complainant submits that he was contracted to work 45 hours a week but in reality worked 65 hours. The Complainant argues that the difference in pay was €355.40 per week for 24 months totalling €36,961.60 on overtime.

The Complainant also claims that the Respondent failed to pay him the following:

€741 for the week 5th - 9th February 2018 €741 for the week 10th - 16th April 2018 €700 – one weeks’ pay in lieu of notice €1,744 in respect of overtime €148 – one day’s wages

The Complainant submits that by letter dated 20th April 2018, the HR Manager of the Respondent outlined the outstanding amount the Respondents says are due to the Complainant.

The Complainant provided copies of documents titled “Weekly Driver sheet” containing his manual notes of start/finish times, routes etc.

The Respondent submits that there was an issue around the final payment not being made. This has been rectified by cheque. The Respondent submits that this was because the cheque was left with an employee to issue but they have since left the business. This was, therefore, a simple error and had since been corrected.

The Respondent also submits that it does not pay overtime. The Respondent argues that there is a salary paid with no overtime for hours worked over contract and no monies are owed.

The Respondent exhibited calculations of the average hours worked by the Complainant showing that he would have worked 39.95 hours a week on average.

The Respondent exhibited also details of tachographs for the period from 12th February 2018 to 7th April 2018.

The Complainant in the WRC referral form alleged that he was not paid for the overtime he had worked and that he did not receive his wages for week 5th -12th February 2018 and the payment for his last week. At the hearing, Counsel presented a list of alleged non-payments in relation to both ABC and the Respondent.

In view of my finding that no transfer of undertakings occurred within the meaning of the Regulations I dismiss the Complainant’s claim of any alleged non-payments in respect of ABC. These would have been dealt with by the Liquidator had the Complainant engaged with him.

Having reviewed the evidence before me I find that the Complainant was paid €500 gross a week plus expenses and not €741 as claimed by the Complainant.

In respect of the Complainant’s assertion that he is due €741 for week 5th - 9th February 2018 I find that the Complainant confirmed that he did not perform any work for the Respondent until 12th February 2018. I find his assertion that he was available for work from the 5th February 2018 but as a result of the Respondent not providing him with a truck he was unable to work not plausible. In that regard, I prefer the evidence of the Respondent that the Complainant was not available to travel to Dublin to pick up the truck until 12th February 2018 and he did not start his employment with the Respondent until that date.

I find that on 16th April 2018 the Complainant resigned his position and gave the Respondent one week’s notice. The Respondent confirmed by return email that the Complainant’s outstanding monies include: payment for week ending 20th April 2018: €500, payment for 23rd and 24th April 2018: €200, holidays acquired: €200 (2 days)

Payslip dated 20th April 2018 shows the sum of €700 and two days of annual leave. I note that there was some oversight in issuing the cheque. However, it was confirmed at the hearing that the cheque was re-issued and sent to the Complainant via registered post of 6th December 2018. I note that the Complainant stated that he did not cash the cheque.

In respect of the Complainant’s claim that he is owed overtime payment I find that the Respondent’s record of hours worked by the Complainant appear to be accurate. The Complainant’s manual record does not correspond with the tachograph. Moreover, it does not include any breaks, which are not reckonable as working time as is clear from Regulation 6 of the Regulations. Having considered the evidence made available to me I find that the Respondent’s records are credible and reflect the actual working hours of the Complainant. The said records show that the Complainant worked on average 39.95 hours a week.

Taking all of the foregoing into consideration I find that the complaint is not well-founded.

Organisation of Working Time Act, mobile workers, transfer of undertakings