Complainant

Respondent

Anonymised Parties

A Courier Van Driver

A Logistics Company

Representatives

Conor O'Gorman IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019208-003

15/05/2018

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-00019208-005

15/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00019208-006

15/05/2018

The complainant submitted his complaints on the 15th of May 2017.   I proceeded to a hearing of these matters on 8th of October 2018.

The complainant commenced employment on 25th of October 2017 and did not receive a statement of his terms of employment or a contract until 27th March 2018.

The respondent took over the franchise via a TUPE in April 2018 and provided the complainant with a further contract on 27th of June 2018.

Complaint under the Terms of Employment (Information) Act.

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

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, ……

The complainant submitted a complaint under the Terms of Employment (Information) Act. The complainant submitted that he was not provided with any contract or statement of his terms of employment. The complainant told the hearing that his employment had passed to the current respondent following a TUPE. He told the hearing that he had been employed by the respondent’s predecessor Company B since the 25th of October 2017 and that he had not received any contract or statement of his Terms of Employment until 27th of March 2018.   The complainant told the hearing that he was previously employed in the same organisation by Mr. J in the period up to June 2017 and that he had left the employment due to excessive work hours and had returned in October 2017 after Company B had taken over.

Witness for the respondent and current owner Mr. X acknowledged that the complainant may not have received a contract following the commencement of his employment with the transferor and the respondent acknowledged that it was aware that any liability in this respect had passed to them in the course of the transfer of undertakings. The respondent stated that it was aware that the transferor, Company B, had stepped in and taken over from Mr. J in 2017 as it had become aware that Mr. J was not complying with legal obligations and obligations to his employees.   The respondent stated that this had been an interim step before the franchise was transferred to the current respondent under the TUPE.   The respondent told the hearing that they had taken over the franchise in April 2018 and that that the complainant had been provided with a further contract by them on 27th of June 2018.

The complainant agreed that this was the case and that he had received a contract on 27th of March 2018 from Company B, which he provided to the hearing.   I am satisfied that the complainant should have received a statement of his terms of employment from the transferor, Company B following the commencement of his employment on 25th of October 2017 and that he should have received this within two months of the commencement of his employment i.e. by end of December 2017.   The respondent has acknowledged responsibility for this breach as the transferee to whom all legal obligations were transferred. I note that the complainant was provided with a contract stating his terms of employment by the respondent on 27th of March 2018 and with a further contract on 27th of June 2018 following the transfer but I note that he should have received a contract or statement of his terms of employment by end of December 2017.  I am satisfied that this amounts to a breach of the Terms of Employment Information Act and given that the breach was rectified in March 2017 I consider an award of €400 to be appropriate in the circumstances.   I find this complaint to be well founded and I order the respondent to pay the complainant €400 in compensation.

I find this complaint to be well founded and I order the respondent to pay the complainant €400 in compensation.

The complainant submits that he was not provided with any information about Road Transport working hours regulations and that he was behind the wheel from around 9 a.m. till about 5-6 p. m without any break under constant time pressure.

The respondent submits that since the TUPE the complainant has been provided with work hours and breaks in accordance with the Organisation of Working Time Act and as set out in his contract of employment.

Regulation 18 of the EC Road Transport Regulations 2012 (S.I. 36/2012) provides that a complaint may be made that an employer has contravened Regulations, 5,8,10,11 or 12.   These Regulations apply to taco graphed vehicles which are over 3.5 tonnes in weight.  

The complainant in his complaint form submitted that he was not provided with information about the road transport regulations. He also submitted that he was behind the wheel from 9 am until about 5 or 6 pm without breaks and was constantly under time pressure.

The evidence adduced at the hearing clarified that the complainant drove a delivery van and not a truck in the course of his work.   The complainant did not carry out night work.   The respondent advised the hearing that the complainant starts work at its depot at 7.30 am and that his hours of work and breaks are governed by the Organisation of Working Time Act and that this is set out in his contract a copy of which was produced to the hearing.  The complainant stated that prior to the respondent taking over he started work at 7 am. The complainant provided a copy of his earliest contract when he was employed by Mr. J in the same organisation and this contract also states that the complainant’s hours of work and breaks are governed by the Organisation of Working Time Act and sets out his hours of work and break times.  It also emerged at the hearing that the complainant is not a truck driver of a taco graphed vehicle over the weight of 3.5 tonnes and that he drives a delivery van and not a truck.  

Having considered this complaint, I am satisfied that the EC Road Transport Regulations 2012 (S.I. 36/2012) do not apply to the Complainant and accordingly, I find that this complaint is not well founded.

I find that the complaint made pursuant to the EC Road Transport Regulations 2012 (S.I. 36/2012) is not well founded.

The complainant commenced employment with Company B on 25th of October 2017. He submits that a transfer in undertakings to the respondent took place on 14th of April 2018. He submits that he was not provided with any advance notice or consultation that his employment was being transferred to the respondent.

The respondent took over the franchise via a TUPE in April 2018 and a consultation process took place for more than 30 days prior to the TUPE. The complainant was provided with a contract by the respondent on 27th of March 2018 and the complainant’s terms and conditions transferred to the current owners. A further contract issued to the complainant on 27th of June 2018 following the transfer of undertakings.

Complaint under TUPE Regulations.

The complainant submitted a complaint under the TUPE Regulations. The complainant submitted that a Transfer of Undertakings took place on the 14th of April 2018.   The complainant submits that he was not consulted with or made aware that a transfer was taking place. He told the hearing that he had seen Mr. X of the respondent organisation around the building for a few weeks before the transfer took place but that no consultation took place.   The complainant told the hearing that he was only given brief information about the new owners.  He stated that he and other employees were told that the place was getting new owners and that they were going to take care of them.  

The respondent advised the hearing that the transfer was an unusual one in that Company B had stepped in any taken over the franchise in May 2017 in order to rescue it from Mr. J who had failed to honour his obligations under employment law as well as other legal obligations.   The complainant agreed that he had previously worked for Mr. J and had left the job due to being expected to work excessive hours by Mr. J.     The respondent added that Company B stepped in and took over the franchise from Mr. J in May 2017. The complainant stated that he had come back to the job in October 2017 after the company had been taken over by Company B. The complainant told the hearing that he had initially received a contract from Mr. J in 2017 but that he did not receive a contract from company B after he left for a few months and came back to the job in October 2017.    He stated that he received a contract setting out his terms and conditions from the Company B in March 2018 and a further contract from the current respondent in June 2018. The complainant at the hearing agreed that his conditions had improved since the respondent took over as his work hours had reduced following his request for same and he had a later start time. The respondent advised the hearing that they had a number of discussions with the complainant who advised them that he was working too many hours and that they had following these discussions taken on extra drivers in order to distribute work hours more evenly.   The respondent told the hearing that the complainant’s terms and conditions were preserved under the TUPE and also that they had sought to rectify mistakes and oversights made by the previous owners regarding the issuing of contracts and other HR functions which had been neglected by previous owners. The complainant did not dispute this and agreed that his conditions were more favourable under the new owners i.e. the current respondent.

As regards the consultation process the respondent stated that consultation did take place but added that it was an unusual situation in that Company B had rescued the franchise from Mr. J and that this had been an interim measure with the intention that someone else would step in and take over the franchise.   The complainant was not employed by the respondent at the time of the takeover by Company B from Mr. J as he had left for a few months and came back to work for Company B.   The respondent stated that the transfer to Company B had been an interim step before the franchise was transferred to the respondent under the TUPE.   The respondents told the hearing that they had taken over the franchise in April 2018 and that a consultation period of more than 30 days had taken place.   Mr. X witness for the respondent told the hearing that he had shadowed the head office manager of Company B for more than 30 days before they took over the franchise from company B and that he had at this point sought to rectify HR oversights and omissions made by Company B regarding its obligations under employment law.    I note that the complainant agrees that Mr. X was in attendance in the respondent premises for a number of weeks prior to the transfer. The complainant also advised the hearing that he was given information about the transfer and that he was advised that the new owners were going to look after them.   It is also clear from the evidence adduced that the complainant’s terms and conditions were protected under the TUPE and that his conditions improved following the transfer of ownership.

Accordingly, having considered all the evidence I am satisfied that this claim, is not well founded.

I am satisfied that this claim, is not well founded.