RTD191

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Séamus Bennett will be referred to as “the Complainant” and Simplytrak (Ireland) Limited will be referred to as “the Respondent”.

The Complainant submitted his claim under the Regulations to the Workplace Relations Commission on 13^thJanuary 2017.

Background

The Complainant was employed by the Respondent from 12^thJuly 2014 until 24^thNovember 2016 as a Driver to drive a car transporter truck in Scotland and Northern England. He travelled each week from his home in Kilkenny to Edinburgh, Scotland or Newcastle, England. This journey required leaving home in the early hours on Monday mornings, driving by car to Dublin Airport, a flight to either Edinburgh or Newcastle and then a lift or taxi drive to the depot to pick up his truck. He would arrive back in Kilkenny on Friday night/Saturday morning. The Complainant claimed that, as his working hours were not calculated from the time he left home but were recorded from the time he commenced driving the truck, the Respondent was in breach of Regulation 5 of the Regulations.

Summary of the Complainant’s Case

Ms Ann Conan, Citizen’s Information Advice Centre, on behalf of the Complainant, submitted that excluding travel time from Kilkenny to the UK by road and air was a violation of the EU Directive. Therefore, she submitted that the Respondent was in contravention of Regulation 5 of the Regulations by requiring the Complainant to work in excess of 60 hours in some weeks and working in excess of 48 hours per week on average.

Ms Conan relied upon the decision of the Court of Justice of the European Union (CJEU) in the case of C-266/14Federaci�n de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL and Tyco Integrated Fire & Security Corporation Servicios SAto contend that the Complainant’stime spent travelling to work should be considered as working time for the purposes of the Regulations.

Summary of the Respondent’s Position

Ms Dorothy Donovan, B.L., on behalf of the Respondent, denied the allegation that the Respondent was in contravention of the Regulations. She stated that neither the EU Directive, the Regulations nor the Organisation of Working Time Act 1997 define working time for mobile workers to included travel from home to base. She submitted that the circumstances in theTycocase were very different to those in the instant case, as the Complainant’s work base was in the UK, unlike the circumstances inTycowhere the claimants had no fixed or habitual place of work.

Summary of Evidence of Mr T.J. Crosbie, Managing Director

Mr T. J. Crosbie, Managing Director of the Respondent, stated that the Respondent has no employees in Ireland and that all its operations are based in the UK. He said that the Complainant has a history of employment with his father’s transport business which was based in Ireland. Mr Crosbie said that the Complainant was the most experienced car transporter he knew and when he came to him looking for work, he explained to him that all the Respondent’s work was in the UK and offered him a driving position on that basis.

Mr Crosbie said that the Complainant was informed that his base was at Livingston, Edinburgh, Scotland and that he may be assigned to other locations from time to time. He said that for the vast majority of his employment the Complainant was assigned to Livingston and on one occasion he was required to go to the Respondent’s Newcastle depot. He said that the Traffic Office was located in Livingston which was where the Complainant received all his work instructions from. The witness said that the Complainant’s flights were paid by the Respondent as a benefit to the Complainant.

While Mr Crosbie denied that the Complainant was required to go to Newcastle on a regular basis to pick up his truck, he did accept that it had a depot at Newcastle where it had a contract with Asda to park its trucks in a designated parking area there.

Mr Crosbie stated that the Respondent strictly adheres to its obligations under the Regulations. He produced for the Court a signed declaration by the Complainant of evidence that the Complainant had completed training onEU Working Time and Drivers Hours Rulesand included his signed agreement to comply with such rules. The witness told the Court that each driver has his own Digicard which records all time spent driving trucks. This information is downloaded in the Respondent’s office and analysed by its Compliance Officer. It is then sent toDescartesfor confirmation of its compliance with the Regulations. Mr Crosbie said that it fully complies with DVSA obligations where the information gathered may be cross-examined. He said that there is very stringent observance of driving hours in the UK and there are severe penalties for any company found not to be fully in compliance. He said that besides the Digicard information, each truck is fitted with a satellite tracking device which informs the Respondent of the Driver’s location and driving at any time.

The witness was asked if the Complainant’s records were ever found to be in breach of the Regulations. He said that that had never happened.

Summary of the Complainant’s Evidence

The Complainant told the Court that it was Mr Crosbie who contacted him about a job. He said that when he commenced employment with the Respondent in July 2014 he knew that the job entailed driving a car transporter truck in the UK. He said that initially his base was at Livingston, Scotland then it changed to Newcastle, England. He said that there was no office at Newcastle and he was required to pick up his truck from the assigned parking area at Asda in Newcastle.

He told the Court that he steadfastly observed his driving hours and his Digicard was always in compliance with the Regulations. However, he said that in addition to his travelling time from Ireland to the UK, he was expected to drive the truck up to 60 hours per week, with an average of 48 hours per week, and he considered that this was in breach of the Respondent’s legal obligations. He said that he occasionally received a text message from the office when he was travelling from home to the UK but accepted that this was not a regular occurrence.

The Complainant stated that he never received a copy of his contract of employment and maintained that as his base was flexible he should therefore be regarded as working when he was travelling from home to the UK, as per theTycocase.

The Law Applicable

Regulation 5(1) of the Regulations provides: -

• 5. (1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed—
  
  • (a) a working time of more than 60 hours in a week,
    (b) an average weekly working time of 48 hours in any reference period.

The CJEU ruling in theTycocase was in relation to Technicians based in regional offices around Spain who installed security systems in homes and commercial properties. Time spent travelling from the regional office to the first customer and from the last customer back to the regional office was considered working time. Tyco closed all the regional offices in 2011 and the Technicians began to operate from home. The employees in question travelled varying distances daily from their homes to the places where they were to carry out work. The employer did not treat the first or last journey of the day as working time and considered the working day started when they reached their first client and ended with their final appointment. However, the CJEU held that time spent travelling to and from work was working time for the purposes of the EU Directive.

Having considered the submissions made by both parties and the evidence proffered, the Court is of the view that the position of the Complainant in this case is not comparable with the circumstances in Tyco. The Complainant is not working from home, his job was based in the UK and he was required to commence his working time from the UK and not from home.

The Court is satisfied that only the hours which the Complainant spent from the time he reached his base in the UK, and not the travelling time to get there, could be regarded as working time.

Determination

The Court is satisfied that the Respondent did not contravene Regulation 5 of the Regulations. Accordingly, the Court is satisfied that the Complainant’s complaint is not well-founded. Therefore, the Respondent’s appeal is allowed.

The Decision of the Adjudication Officer is set aside and substituted with this Determination.

The Court so Determines.



Signed on behalf of the Labour Court



Caroline Jenkinson
12th March 2019______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.