Complainant

Respondent

Anonymised Parties

A Coach Driver

A Bus Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00019519-001

28/05/2018

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-00019519-004

28/05/2018

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-00019519-005

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00019519-007

28/05/2018

Having completed a coach driver course from May to August 2017, the complainant said that he was delighted to get a job with the respondent coach company on the Dublin to Cork route.  He said that he has a small, start-up food company in Cork.  He started work with the respondent on September 12^th 2017, but he was given notice of the termination of his employment just 10 weeks later on November 23^rd 2017.  His employment ended on December 8^th.

In this set of complaints, the complainant alleges that his employer was in breach of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (Statutory Instrument 36 of 2012), (“the Working Time Regulations”).  He has submitted three claims under these Regulations:

1.  He claims that his employer failed to keep statutory records related to hours of work.

2.  He claims that he worked excessive hours.

3.  He claims that his employer failed to ensure that he got a rest break during the working day.

The complainant also alleges that he was dismissed unfairly.  As he had less than 12 months’ service with his former employer, he brings this complaint under Section 13 of the Industrial Relations Act 1969.

The complainant alleges that his employer deleted the tacograph records after an investigation on November 7^th into an accident that occurred on October 31^st 2017. 

In his complaint form submitted to the WRC on May 28^th 2018, the complainant said that the records from the digital tacograph are downloaded every three weeks.  As he started work with the respondent on September 12^th 2017, the complainant said that he was due to complete his first download on Tuesday, October 3^rd.  He said that he carried out this download.  He said that he did the second download on October 24^th and that no one contacted him to say that the download had not happened.  He claims that the fact that the records of his driving were not available after November 7^th indicates either that his employer is bad at keeping records or, that the records were deliberately deleted to conceal breaches in their driver safety records. 

The respondent’s submission outlined their obligations with regard to keeping records of the working hours of employees.  The manager who attended the hearing said that the company prepares a weekly roster for drivers, setting out their scheduled working hours.  Copies of the complainant’s rosters were submitted with the book of documents presented by the respondent. 

In addition to the weekly roster, drivers are required to complete and submit a weekly worksheet which shows their daily shift and hours worked.  This provides a cross-reference to the roster and ensure that drivers are paid for any additional hours or shifts that they work.

Copies of e mails sent to the complainant by the payroll office were submitted in evidence.  In these mails, the payroll officer explained clearly to the complainant how to complete a worksheet.

In addition to the roster and the worksheets, the company is required by law to maintain digital and analogue driving records of all its drivers.  This record shows the full driving record of a driver when he or she is operating a vehicle.  The service is provided by industry-recognised providers.  Newer vehicles have a digital tacograph and hours of driving are uploaded automatically.  Older vehicles have analogue equipment and this requires a driver to upload his tacograph records every 21 days.

Evidence was included in the respondent’s booklet of e-mails sent by a duty manager to the complainant as well as a number of other employees, to remind them to upload their tacographs.

I have listened to the complaint made by the complainant and I have examined the evidence presented by the respondent with regard to the maintenance of working hours records.  It is my view that the respondent has in place a robust system to record hours of work and the hours that each driver spends operating a vehicle. 

I have found no evidence to support the complainant’s allegation that the respondent has failed in its statutory requirement to maintain a record of the hours of work of their employees.  I decide therefore, that this complaint is not upheld.

On October 31^st 2017, the complainant had an accident while driving his bus.  At the time of the accident, he claims that he was in his 97^th hour of work in a 14 day period.  By the end of that day, he said that he worked for 103 hours and that this was 13 hours in excess of the permitted maximum 90 hours in the Working Time Regulations.

In their submission at the hearing of this complaint, the respondents said that the Working Time Regulations pertaining to mobile workers prohibit working in excess of an average of 48 hours a week.  The Regulations also specify that, in any one week a driver should not work in excess of 60 hours.  Average working hours are to be calculated over 17 weeks and breaks are not included in the calculation of working hours.

In his complaint under this heading, the complainant has referred to a two week period, rather than the reference period specified in the legislation of 17 weeks.  He has also not taken account of his breaks during the two weeks that he complains that he worked excessive hours.

Evidence was submitted at the hearing of the complainant’s rosters and payslips for the 10 weeks of his employment with the company.  The information provided shows that the complainant worked an average of 44.25 hours during the 10 weeks that he was employed by the respondent.  The working week in the company commences on Fridays and end on Thursdays.  The information provided at hearing the also shows that in the two weeks ending on November 2^nd, the complainant worked for 42.5 hours the first week and for 49 hours in the second week. 

I have examined the evidence presented at the hearing with regard to the hours of work that the complainant worked in the two weeks ending on November 2^nd 2017.  I find that he did not work in excess of 48 hours in either of these weeks and he did not exceed the average 48 hour maximum during the 10 weeks that he was employed by the respondent.

As I have found no evidence to substantiate the complainant’s allegation that he worked excessive hours, I decide that this complaint is not upheld.

The complainant said that on November 2^nd 2017, he drove from Cork to Dublin, a journey that took four and a half hours.  After a break of 25 minutes, he said that his manager instructed him to return to Cork, another four and a half hour journey.  He claims that his employer failed to ensure that he got his entitlement to a 30 minute break on this day.

At the hearing, the respondent’s manager said that Regulation 8 (1) of the Working Time Regulations provides that,

“No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.”

Regulation 8(2) address how breaks are to be permitted in circumstances of longer working hours: 

“Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.”

The manager conceded that, on the day in question, November 2^nd 2017, the fact that the complainant got a break of 25 minutes rather than the required 30 minutes, means that this Regulation has been breached.  He argued however, that the complainant did not claim that this was a regular breach.

Recognising that there has been no significant breach of Statutory Instrument 36 of 2012, the manager acknowledged that there was however, a breach of the European tacograph guidelines which provide for a 45 minute break after driving for four and a half hours.  When the complainant pointed this out to his duty manager, he was informed that he should take his legal breaks.

While I note that, on November 2^nd 2017, it appears that there was a breach of the Working Time Regulations in respect of the complainant’s daily rest break, it is my view that this breach could have been avoided by the complainant.  In his evidence at the hearing, the complainant said that when he was instructed by the duty manager to do an immediate return journey to Cork, he said that the manager said, “do your best.”  If he had simply waited five more minutes before commencing his return journey to Cork, a breach of the Regulations would not have occurred.  

I find that the respondent has made reasonable efforts and investment to ensure that employees take their breaks and I decide that this complaint is not upheld.

Chronology of Events

October 29^th 2017

On Sunday, October 29^th, the complainant said that he was rostered to work, although it was his day off.  He said that on that day, he was assigned to working on the Dublin quays, directing passengers to the correct buses for their routes.  He said he did a 10 hour shift on this day, which was difficult as the weather was bad and the city was busy due to the Dublin City Marathon.

October 31^st 2017

As he was driving from the Red Cow to Bachelor’s Walk in Dublin, the complainant said that, at 11.17am, the left wing mirror of the bus broke off when it tipped a parked truck in Inchicore.  When he phoned his manager, the complainant said that he was instructed to complete the journey to Bachelor’s Walk to offload the 54 passengers on the bus, and then to proceed to Burgh Quay to pick up passengers waiting for the bus to to Cork.  He said that his manager instructed him to make this journey as far as the bus depot at the Red Cow, “all of this with no wing mirror.”

When he arrived at Bachelor’s Walk, as the passengers were disembarking, the complainant said that he was greeted by a colleague driver waving at him to get out of the bus.  When he got off, he saw smoke coming from one of the rear wheels and his colleague told him to get the fire extinguisher.  He said that he phoned his manager at 11.33am to tell him that he couldn’t drive the bus any further.  He said that he removed the ticket machine and locked the bus and ran to the Burgh Quay stop.  There, a bus and driver were about to depart for Tralee and he advised the Cork passengers to board that bus.  He said that he got on the Tralee bus himself and took ticket money from the 16 passengers for Cork.  At the Red Cow, as the passengers got on the replacement bus, he handed over the ticket machine to the driver.

Investigation into the October 31^st Wing Mirror Incident

November 7^th 2017

An investigation took place into the wing mirror incident.  The meeting was attended by a driver tutor and a note-taker from the company.  The complainant said that he was told by the driver tutor that he would have to pay €680 for a replacement wing mirror.  He said that he refused because he claims that the accident happened when he was over the legal limit of working hours and that the accident occurred because he was exhausted.  He said that when the accident occurred, he was seven hours over the EU legal limit of 90 hours’ driving in 14 days.  At the meeting, he said that he complained to the driver tutor that on November 2^nd, he had driven for nine hours with just a 25 minute break and that he was being “pushed too hard.”

Dealing with the October 31^st incident, the complainant said that he didn’t stop the bus when the accident happened because he was in heavy traffic with 54 passengers in board.  He said that when he stopped at a traffic light, he phoned his manager, who, he said, instructed him to continue to Bachelor’s Walk and then on to Burgh Quay to pick up more passengers and then to the Red Cow.  Due to the smoke coming from the wheel, he didn’t follow this instruction and he took the passengers on the Tralee bus as far as the Red Cow.

November 9^th 2017

The complainant said that he got a text message from a manager to let him know that nine weeks of his tacograph records were missing from the company’s tacograph system.  He was asked to reload his tacographs later that evening.  He responded to the text message to say that he had already downloaded his tacograph as he understood that he was required to do this every 21 days.

November 14^th

The complainant received a text message from a member of the cash office staff querying a shortage of €10 from the cash he deposited from the ticket machine on October 23^rd.  As he had triple-checked the lodgement, the complainant said that there was something wrong about the finding that his lodgement was short €10.  He asked for a meeting to discuss the shortage.

November 16^th 2017

On this date, the complainant got a text message from a member of the HR department with the news that the cash office had discovered that four lodgements were missing; two from September 16^th and one each from October 19^th and November 2^nd.  He said that he had not stolen the money and he found it extraordinary that he had not been contacted about this missing money before November 16^th.

November 17^th 2017

The complainant was on his way to the company’s head office to lodge any outstanding monies in his possession.  He said that he was contacted by the financial controller who told him to come to the office, or that he would report the missing money to the Gardaí.  In what he described as “a volley of text message” to the financial controller asking why he had not been informed about money missing from September and October before November 16^th, he said that the financial controller replied, “you should have been.”

November 18^th 2017

The complainant said that he arrived for work at 5.30am.  He had been instructed by text message to lodge all outstanding money before he started work.  He handed over the lodgements and he was instructed by the duty manager that he was suspended.  He asked who had given this instruction, but the duty manager simply respondent that the decision had come “from upstairs.”  He said he was “incensed” that he had come into work and that he was suspended with no notice.  He was informed that one of the duty managers was leaving the company and he felt that this person had taken the money from the lodgement bags.  It appears from his own description of events that he was angry and losing control.  Three duty managers were present in the office and three others arrived from the mechanics department and they persuaded him to go home.  The complainant said that after he left, he sent a text message to the financial controller expressing his disgust at how he was treated by the company, by bringing him into work at 5.30am and sending him home.

November 20^th 2017

The complainant attended a meeting with the company’s operations director and a member of the HR department.  It appears that there is a process for handing in lodgement bags in a secure room monitored by CCTV cameras.  The complainant never lodged his cash bags in this room and, at the meeting, he said that this was the first time he heard about this secure room. 

He said that the operations director asked him if he knew who could have taken the money.  The complainant said that he had accused a man he knew and that his had caused serious trouble in the man’s family.  The complainant then suggested that the duty manager who he understood was leaving the company could be the culprit.  He said that the operations director “exploded” at this suggestion and he informed him that the duty manager in question was not leaving but was reducing his hours due to his personal circumstances.  Before the end of the meeting, the complainant said that the operations manager said that he believed that he hadn’t taken the money.  He also informed him that there would be a follow-up meeting the next day about the incident on October 31^st when the wing mirror came off the bus in Inchicore.

Later on November 20^th, the complainant said that he received a copy of the minutes of the first investigation meeting into the October 31^st incident.  He sent a text message to the note-taker to say that the minutes were not representative of what had occurred at the meeting on November 7^th and he cancelled the meeting scheduled for November 21^st so that he could amend the minutes.  He said that he made “significant changes to the November 7^th minutes,” adding a photograph that his employer alleges that he did not take.  He also said that the minutes failed to record the events at Bachelor’s Walk when the wheel of the bus went on fire.

November 23^rd 2017

The complainant attended a disciplinary meeting about the wing mirror incident.  The meeting was hosted by a duty manager, but the operations director also attended at the beginning and asked the complainant and the manager to agree the minutes of the meeting of November 5^th.  The operations director said that anything that happened after the wing mirror incident was irrelevant.

At the meeting, the duty manager denied that, on November 7^th, the complainant had showed him three photographs on his phone.  In any event, the manager said that the photos were not relevant because they were not taken at the scene of the accident.  Some amendments were made to the minutes of the November 7^th meeting and the minutes were typed up again for the complainant to sign.

Dismissal

Following this adjournment, the operations manager took over the disciplinary meeting.  He informed the complainant that he was being dismissed for the following reasons:

1.  On October 31^st, breaking the wing mirror on the bus;

2.  Not stopping to take a photograph of the scene of the accident;

3.  Not stopping and requesting a replacement bus and driver;

4.  Using his phone with the engine turned on.

At the meeting, the complainant remonstrated with the operations director, saying that he was instructed to drive on into town after the wing mirror fell off.  He also said that he had worked excessive hours.  He said that, at this meeting, the operations manager told him that he was responsible for monitoring his hours of work.  The operations director told the complainant that he would receive his outstanding wages the following day.

November 30^th 2017

The complainant still had tickets to the value of €490 in his possession when he was dismissed.  On November 30^th, he sent a text message to the duty manager to let him know that he would not return the tickets until he was paid his outstanding wages.

December 1^st 2017

The complainant went to the company’s head office and, when he received a cheque for his outstanding wages and holiday pay, he returned the tickets to the duty manager.

The respondent’s submission at the hearing set out the background to the termination of the complainant’s employment.

E mail evidence presented in the respondent’s book of documents shows that the complainant was asked on a number of occasions to uploads his tacograph records.  This was finally achieved on November 9^th when a manager performed the process for him.

On November 7^th, the complainant attended a meeting to discuss the wing mirror incident on October 31^st.  At the meeting, it became apparent that, while driving the bus, the complainant had contacted his manager by telephone to get instructions about what to do next.  He failed to follow the procedure for accidents which is set out in the employee handbook.

In October and November 2017, the complainant was contacted about the fact that his lodgement was short by €10 on one occasion and also, that four lodgements over two months totalling €710 had not been lodged.  The duty manager established that the complainant had lodged ticket money into his own bank account.  He said that he did this for security reasons. 

When he was challenged about missing money, the complainant suggested that a mechanic friend of his may have taken it.  It emerged on November 14^th that in excess of €2,000 in ticket money had not been lodged.  When he was contacted by the HR officer to attend a meeting on November 15^th, the complainant said that he couldn’t attend because he had been robbed.  He was then contacted by the financial controller and instructed to log the details of the two robberies with the Gardaí.  It then emerged that the complainant had been referring to only one robbery and that he would not be able to lodge the outstanding ticket money that day.

When he arrived at the company’s office on Saturday, November 18^th, the complainant was met by the duty manager who was instructed to collect the ticket money from him and to lodge it in the safe.  The duty manager advised the complainant that he was suspended.  Clearly annoyed about this, the complainant sent a number of text messages to the financial controller.  He was then advised to attend a meeting on Monday, November 20^th with the HR officer and the operations manager.  He cancelled this meeting and attended on November 23^rd.  At the meeting, the operations manager advised the complainant that he had not passed his probation and his employment was being terminated because of his failure to comply with company policies in relation to the accident on October 31^st, which included the use of his mobile phone while driving.

On November 24^th, the complainant received a letter from the operations manager in which the manager confirmed that his employment was terminated for the following reasons:

§    Failure to follow the company’s standard policies and procedures;

§    Illegally using a mobile phone while driving.

It is the respondent’s case that a breach of any company policy during the period of probation may result in immediate termination of employment without initiating the disciplinary procedure.  This is set out in the Employee Handbook which was submitted in evidence.  For the respondent, the manager who attended the hearing said that his view is that the company acted in accordance with its policies and procedures and that the complainant’s employment was terminated during his probation and that his dismissal was not unfair or unreasonable.

Having considered all of the information presented at the hearing of this complaint, and, having listened carefully to the evidence given by both sides at the hearing, it is apparent that the complainant was dismissed while he was on probation because he did not follow the company’s policies and procedures in respect of a number of serious issues.  These include the failure to properly upload tacograph information, the failure to properly lodge cash collected in ticket money and the failure to carry out proper procedures following an accident.

I have examined the very large volume of information submitted by both sides at the hearing of this complainant.  It is my view that the company has effective and robust procedures in place for dealing with the recording of hours of work, the lodgement of cash and about what to do in the event of an accident.  From my reading of the documents submitted and the communications between the complainant and various managers in the company, I find that, in relation to all of these matters, he was treated with respect and with fairness and tolerance.

I note that the respondent’s business of coach transport is highly regulated by EU and national legislation and policies are in place to ensure that work practices and hours of work are compliant with the relevant legislation.  I also note that audits are carried out by the Road Safety Authority for vehicle maintenance and tacograph compliance.

The respondent’s disciplinary procedure states that employees who have a short amount of service, “may not be in receipt of any warnings before dismissal.”  I am satisfied that the process followed by the respondent before the complainant was dismissed was fair.  He was requested to attend two investigation meetings, he was informed that he could be accompanied and he was given the opportunity to amend the minutes of the first meeting before he attended the second meeting.

The complainant was on probation and he had a responsible job involving driving the public between the cities of Dublin and Cork.  The respondent had a duty to assess his suitability for the role during his probation and, on November 23^rd 2017, the operations manager decided that he was not suitable.  While this is difficult message for the complainant, and I understand that he was disappointed and even offended by the decision, taking account of the events of the previous weeks, it is my view that it was not an unreasonable or unfair conclusion.

It is my view that the complainant’s dismissal was not unfair and I recommend that the respondent takes no further action in respect of this matter.

Dismissal, probation, working hours, breaks, employment records