Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019192-001

15/05/2018

The complainant submitted a complaint under section 27 of the Organisation of Working Time Act, 1997 on 15th of May 2018 in respect of a claim that he was expected to work in excess of the maximum number of daily hours regularly driving in excess of 16 hours a day. I proceed to a hearing of this matter on 22nd of October 2018.

The complainant submits that

he was employed by the respondent from 03/03/2018 to 27/04/2018,

he was during his employment required to work more than the maximum permitted number of hours regularly driving 16+ hours on a Tuesday.

The respondent submits that

the complainant was employed with them from 03/03/2018 to 27/04/2018, he worked 4 days per week for three weeks,

the following is a list of the complainant’s hours worked in each of the three weeks, Week 1 35.98 hours, Week 2 46.98 hours & Week 3 39.07 hours,

the claimant’s hours did not exceed the 48 hours set out in the Organisation of Working Time Act.

The Organisation of Working Time Act sets out the maximum number of hours per week as 48 hours.

Under Section 15(1)(a) of the Organisation of Working Time Act, 1997, an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed (a) 4 months.

The complainant told the hearing that he had worked more than the maximum permitted number of hours on Tuesdays when his work required him to deliver products to Cork. The complainant stated that this was a particularly long journey and that he often got stuck in traffic doing this journey and so it would take him longer than usual to do all his deliveries on Tuesdays.

The complainant told the hearing that regularly drove for more than 16 hours on a Tuesday.

The respondent disputed this and while they acknowledged that the complainant did have his longest day on Tuesdays his work hours never exceeded 16 hours.  The rrespondent stated that the complainant worked for them for 4 days a week for a total of three weeks and that his weekly hours for the period were, 35.98 hours, 46.98 hours & 39.07 hours and had never exceeded the 48 hours provided for under the Organisation of Working Time Act. The respondent advised the hearing that the complainant in his complaint to the Commission had failed to nominate a reference period whereby the average number of hours worked per week could be calculated. The respondent further stated that for the three weeks of the complainant’s employment with them he had worked on average 40.66 hours per week which is less than the 48-hour maximum for any reference period.

The respondent provided details of the number of hours worked per day and week by the complainant. These details support the respondent’s assertion that the complainant did not ever work a 16-hour day. The number of hours worked per day varied on average from 7 to 11 hours depending on the number of stops and duration of time at stops.  The respondent in support of this produced daily report of the complainants driving hours taken from the working times logged by the vehicle tracking device fitted to the vehicle driven by the complainant. These records provide details of driving start and finish times and of stops in between and stop durations. The records provided support the respondents position.

The complainant agreed that the records are an accurate reflection of his driving time but stated that he often came into work early to load the van the respondent stated that the van was loaded by a forklift and that the complainant did not have to load the van. The complainant stated that he sometimes loaded the van by hand if the forklift operator wasn’t in as early as he was. The respondent stated that this was not requested or expected, and that the complainant should have waited for the forklift operator to arrive and load the van as it made more sense.   The complainant also stated that he sometimes loaded the van the day before travelling in order to save time the next morning. The respondent again stated that this was not requested or expected. The respondent also produced sign in and sign out sheets for the complainant which were produced by the respondent. The respondent sated that it had to fill in these daily time sheets for the complainant as he repeatedly refused to use the manual sign in and sign out sheets which the company asked him to sign on a daily basis. The respondent told the hearing that the times in the time sheets could be verified CCTV footage. These time sheets also support the respondent’s position in respect of the hours worked by the complainant.

Having considered the totality of the evidence adduced in relation to this matter I am satisfied that this complaint is not well founded and accordingly the complaint fails.

Having considered the totality of the evidence adduced in relation to this matter I am satisfied that this complaint is not well founded and accordingly the complaint fails.