Complainant

Respondent

Anonymised Parties

HGV Driver

Road Transport Company

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-00016564-001

02/01/2018

The complainant is employed as a HGV driver by the respondent commencing employment in September 2014. The employment is on a full-time basis with fortnightly pay of €888.00. The complaint is in relation to alleged penalisation of the complainant arising from his initiation of complaints to the WRC in relation to his hours of work and other matters under the Organisation of Working Time Act.

The complainant made a series of complaints to the WRC regarding a number of issues in respect of working hours.

The complainant’s hours were reduced after making the complaints.

The complainant was subjected to excessive monitoring by management.

Reduced hours resulted in reduced pay.

The complainant did not raise issues through the grievance procedure.

The complainant had deliberately completed working time forms incorrectly with break times filled in as working time.

The complainant’s hours were reduced to the maximum of 48 hours per week.

On 2 March 2017 the complainant received a letter from management to the effect that he had filled in daily timesheets incorrectly and had overstated his working hours. The letter went on to state that a decision had been made to apply a reduction to the hours claimed and the complainant was advised to contact the office in regard to these matters. On 9 March the complainant lodged a grievance against the manager who deducted the hours and cited other issues that had arisen regarding working hours. The following day the complainant received an instruction to attend an investigation meeting about how he completed the form and his conformity to EU driving regulations. The investigation was escalated to a disciplinary process which resulted in the complainant being disciplined. The complainant’s grievances were investigated and an outcome in writing was issued on 21 April. The complainant appealed this sanction internally but was unsuccessful. The complainant was unhappy with the disciplinary sanction and the grievance outcome and referred a number of complaints to the WRC commencing in June 2017.

The complainant stated that since that time his hours of work have been reduced and consequently he has suffered a reduction in pay. The complainant further stated that his daily / weekly hours have changed and that he has not been rostered to work on some days that he is available to work.   The complainant says that he believes the person who is responsible for planning rosters is hostile to him.   The complainant is of the opinion that the object of these actions is to make his position in the company impossible to the extent that he can no longer stay in employment.

The respondent stated that the complainant had incorrectly filled in forms in which he had designated all time including breaks as working time. This action was extremely serious as it left the respondent open to criminal prosecution. The respondent also stated that the complainant had raised the issue of working excessive hours and that the respondent was ensuring that he worked the maximum hours permitted under legislation.

Section 26 of the Organisation of Working Time Act, 1997, states:

(1)    An employer shall not penalise an employee for having in good faith opposed by lawful means an act that is unlawful under this Act or the Activities of Doctors in Training Regulations.

As noted above the complainant lodged complaints with the WRC in regard to a number of issues and these included some complaints under the above Act. This of course is a lawful means of pursuing an issue that an employee believes entails a breach of the Act. To sustain a claim for penalisation it is essential that the detriment complained of be causally connected with the action of lodging these complaints with the WRC. In other words, it must be proven that but for the complaints being lodged the detriment would not have occurred. The question must also arise as to whether the actions of the employer amounted to penalisation. There was no evidence offered that the reduction in hours were in breach of the complainant’s contract. The issues of perceived excessive monitoring and hostility from persons in charge of rosters are subjective. There was no evidence that the alleged monitoring had led to any disciplinary action being taken against the complainant. Having regard to all the evidence before me I do not believe that the complainant has established that he suffered a detriment as a result of the fact that he lodged complaints with the WRC.

For the reasons stated above I find this complaint not to be well founded. The complaint fails accordingly.