ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00017398

Parties:

	Complainant	Respondent
Anonymised Parties	A Driver	A Transport Company

Representatives

Complaint(s):

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-00022495-005	08/10/2018
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-00022495-007	08/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00022495-008	08/10/2018
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-00022495-009	08/10/2018
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-00022495-010	08/10/2018
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-00022495-011	08/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00022495-012	08/10/2018

Date of Adjudication Hearing: 10/01/2019

Workplace Relations Commission Adjudication Officer: Orla Jones

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The complainant submitted complaints to the WRC on the 8th of October 2018 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, under section 27 of the Organisation of Working Time Act, 1997 and under section 13 of the Industrial Relations Act, 1969. The complaints were submitted on 8th of October 2018 therefore the cognisable period for the complaints runs from 9th of April 2018 to 8th of October 2018.

The complainant following the hearing submitted information stating that a number of his complaints referred to breaches of contract. I am satisfied that the complaints referred to the WRC were referred under the legislation outlined above.

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-00022495-005

08/10/2018

Summary of Complainant’s Case:

The complainant submits that he does not get breaks and that he works up to 77 hours per week with breaks of between 2 and 8 hours.

Summary of Respondent’s Case:

This complaint is not covered by the 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 as the complainant drives a van which is less than 3.5 tonne and is not a taco graphed vehicle.

Findings and Conclusions:

The complainant has taken complaints under the 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 and under section 27 of the Organisation of Working Time Act, 1997. It emerged at the hearing that the complainant was engaged to drive a van weighing less than 3.5 tonne and that he was not driving a taco graphed vehicle.

I am satisfied from the evidence adduced that the complainant is not covered by 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 and accordingly I find that this complaint is not well-founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint is not well-founded.

CA-00022495-007

08/10/2018

Summary of Complainant’s Case:

The complainant submits that he is required to work more than the maximum number of hours.

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint is not well-founded.

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

CA-00022495-008

08/10/2018

Summary of Complainant’s Case:

The complainant submits that he is not notified of his starting and finishing times in advance. He has also submitted that he works up to 77 hours per week with breaks of between 2 and 8 hours and that he does not get his proper rest breaks.

Summary of Respondent’s Case:

The respondent submits that the complainant works part-time and always get his breaks. The respondent added that the work is ad hoc and that they phone the complainant at short notice when they need him to work. The respondent’s submission includes fleet planning tools and timesheets which indicate that rest breaks were provided in accordance with the Organisation of Working Time Act.

The complainant receives rest breaks when travelling on the ferry. He is provided with a cabin to sleep in and with meal vouchers in order that he can have his meals on the ferry. The complainant is not required to work while on the ferry and this cannot be considered as working time. The complainant has been absent from work on certified sick leave since March 2018.

Findings and Conclusions:

Section 27 (4) of the Organisation of Working Time Act, 1997, states as follows: “an Adjudication Officer shall not entertain a complaint under this section if it is presented to the Workplace Relations Commission after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”.

Section 41(6) of the Workplace Relations Act, 2015, state as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Subsection (8), as referred to above, states as follows:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complaints were submitted on 8th of October 2018 therefore the cognisable 6-month period for the complaints runs from 9th of April 2018 to 8th of October 2018. The respondent advised the hearing that that the complainant is still employed by them but that he has been absent from work on certified sick leave since March 2018. The respondent provided records of the complainants driving hours which indicate that the last date he worked for the respondent was on the 31st of March 2018.

The complainant following the hearing clarified that he had been on certified sick leave since 19th of April 2018. The respondent accepted this.

The cognisable period for this complaint in respect of hours worked and failure to provide breaks runs from the 9th of April 2018 to the 8th of October 2018. It is clear from the evidence adduced that the complainant did not carry out any work for the respondent during that time period and therefore his complaint is outside of the six-month time period prescribed under the Acts.

The complainant was given an opportunity to request an extension of the time limit from six months and to provide reasonable cause for the delay in submitting his complaint. The complainant in providing reasonable cause for an extension of the six month time limit stated that he had tried to go through mediation with the respondent before submitting his complaint to the WRC but that the mediation had not taken place as the complainant was on sick leave at the time and the respondent had requested that he obtain a letter from his doctor to say that he was well enough to participate in the mediation process. The respondent stated that the complainant had made complaints in respect of his request for one man driving jobs and also in respect of issues regarding the respondent continuing to offer him two-man jobs. The complainant told the hearing that part of his issue with two man jobs related to the fact that he was provided with a cabin to sleep in on the ferry but that he was sometimes required to share a cabin with another of the respondents drivers when travelling on the ferry he stated that he cannot be expected to share a cabin with someone he doesn’t know due to his mental health issues. The complainant had also made allegations of bullying against his manager. The respondent stated that they had offered the complainant mediation in a bid to resolve these issues but that the complainant did not take them up on the offer of mediation. The complainant advised the hearing that he was out on sick leave at the time in September 2018 and that the respondent had requested that he obtain a letter from his doctor to say that he was well enough to participate in the mediation process. The complainant refused to provide such certification and the mediation did not proceed. The complainant told the hearing that due to his mental health issues he was not 100% fit at the time. It emerged that this mediation was first offered by the respondent in May 2018 and that the complainant agreed to mediation in September 2018 but refused to provide a note from his doctor to state that he was fit to engage in the mediation process.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The complainant in this case went on sick leave in April 2018 and submitted his complaint to the WRC in October 2018, his stated reason for the delay is that he was trying to go through the mediation process with the respondent which was first offered in May 2018 and which he agreed to in principle in September 2018. The subject of this complaint is an allegation of a failure to provide him with proper rest breaks this relates to the period prior to April 2018 when the complainant went on sick leave. Having regard to all of the circumstances of this case I cannot accept that reasonable cause has been demonstrated to the effect that I could apply the provisions of Subsection 8.

In relation to the Complainant’s complaint under this Act, I find that the complaint was submitted out of time and, as a consequence, I have no jurisdiction to hear the complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint was submitted out of time and, as a consequence, I have no jurisdiction to hear the complaint.

CA-00022495-009

08/10/2018

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint is not well-founded.

CA-00022495-010

08/10/2018

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint is not well-founded.

CA-00022495-011

08/10/2018

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that this complaint is not well-founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022495-012

08/10/2018

Summary of Complainant’s Case:

The complainant advised the hearing that he last worked for the respondent on 31st of March 2018 having been out on certified sick leave since the 19th of April 2018. The complainant submits that prior to his going on sick leave he had submitted a complaint of bullying and harassment to the respondent and that the matters the subject of this bullying complaint had not yet been resolved. The complainant also submits that he was victimised for raising grievances.

Summary of Respondent’s Case:

The respondent submits that the complainant has been on sick leave since April 2018. The respondent submits that the complainant was offered mediation with an external practitioner and the opportunity to lodge a formal grievance each time he made a complaint about a colleague. The complainant has since that time been on certified sick leave and did not engage with any offer or reconciliation made by the company.

Findings and Conclusions:

The complainant told the hearing that he had not carried out any driving jobs for the respondent since March 2018 partly due to the fact that the respondent could not provide him with one man driving jobs which he had sought. He stated that he had advised the respondent that he could no longer do two man driving job as mental health issues meant that he was not in a position to share a driving job with another person accompanying him in the van. The complainant stated that he had also been on sick leave and had been submitting medical certificates in respect of this sick leave since April 2018. The complainant went on to state that he did not receive proper breaks when travelling with the van on the ferry in the course of his employment with the respondent. The respondent stated that the complainant receives rest breaks when travelling on the ferry and that he can sleep for a number of hours and is provided with a cabin on the ferry for this reason. He is provided with a cabin to sleep in and with meal vouchers in order that he can have his meals on the ferry.

The complainant conceded that he is provided with a cabin to sleep in and meal vouchers while he is on the ferry but he told the hearing that he is sometimes required to share cabin with another of the respondents drivers when travelling on the ferry and stated that he cannot be expected to share a cabin with someone he doesn’t know. The complainant told the hearing that he raised this with the respondent and that the respondent refused to provide him with a cabin of his own on the journey. The complainant stated that he cannot share with someone else as he suffers from a mental health issues. The complainant stated that in these circumstances he must upgrade himself to a one-person cabin and that he has to pay for this upgrade himself.

The complainant stated that he advised the respondent that he cannot carry out two-man jobs as mental health issues mean that he is not in a position to share a driving job with another person accompanying him in the van or sharing living quarters with another person where such is required for long journeys.

The complainant stated that the two-man jobs also required him to travel in a van with a colleague with whom he had previously had a dispute.

The respondent advised the hearing that it sought to accommodate the complainants request for one man driving jobs but stated that the majority of the jobs received by them involve two man driving jobs where one person drives while the other rests and then takes over. The respondent stated that it offered the complainant any one man driving jobs it had as and when they arose but stated that these types of jobs do not come up very often. The respondent stated that the complainant had made complaints about these issues and about the behaviour of another colleague and the respondent had offered him mediation in a bid to resolve his issues, but the complainant did not take them up on the offer of mediation. The complainant advised the hearing that he was out on sick leave at the time.

The respondent stated that they had offered the complainant mediation in a bid to resolve these issues but that the complainant did not take them up on the offer of mediation. The complainant advised the hearing that he was out on sick leave at the time in September 2018 and that the respondent had requested that he obtain a letter from his doctor to say that he was well enough to participate in the mediation process. The complainant refused to provide such certification and the mediation did not proceed. The complainant told the hearing that due to his mental health issues he was not 100% fit at the time.

Having considered all of the circumstances of this dispute and having regard to the fact that mediation was agreeable to both parties back in September 2018 but did not take place due to the complainant not being fit enough to participate I recommend that the respondent engage an independent mediation practitioner and that both parties engage in a mediation process to try to seek a resolution to these issues and that this mediation be arranged as soon as possible once the complainant is medically fit to engage in the mediation process.

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the parties engage in a mediation process to seek to resolve these issues.

Dated: 22nd May 2019

Workplace Relations Commission Adjudication Officer: Orla Jones

Key Words: