ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00018862
Complaints:
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-00024408-001 | 17/12/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00024408-002 | 17/12/2018 |
Date of Adjudication Hearing: 14/03/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Summary of Complainant’s Case:
The complainant worked night shifts and says he worked in excess of ten hour shifts on approximately thirty-five occasions between June 17th, 2018 and September 30th, 2018. Detailed examples were given in evidence. He also complains that he was told that his annual leave entitlement would be reduced from twenty to sixteen days on the basis that he had been allocated too much leave due to a miscalculation of his entitlement. Hic contract entitles him to twenty days annual leave. |
Summary of Respondent’s Case:
Regarding the complaint of excessive night hours, the respondent investigated the occasions on which it is alleged that this happened. Tachograph records and shift duty records were examined. As far as can be established there were only three occasions when the complainant drove in excess of ten hours. On the first of these, on June 19th, 2018, the complainant exceeded the ten hours by three minutes, on a second date, June 26th (not on the complainant ‘s list) it was four minutes, and on the third, August 8th it was thirty-two minutes. It was also noted that the complainant had not used ‘Periods of Availability’ (POA) where an employee is available for work but not actually required to work, for example time spent waiting for work to be allocated after arriving at a depot. There were also several occasions when the complainant drove below the ten hours and examples were given. The tachograph data are processed by an external provider and a system of alerts for exceeding the ten hours is built in. it is important to distinguish between driving time (which the tachograph records) and working time. Although an employee is paid for all working time he may not be driving for that time. Also, the data relied on by the complainant related to gross time and took no account of breaks. The issue regarding the complainant’s annual leave was understood by the respondent to have been dealt with in talks between the parties at the level of the workplace on November 26th, 2018. Evidence was presented of a letter on the same date confirming the agreement. |
Findings and Conclusions:
It is important to note the differences in calculation of working hours and total driving time, and the contribution of the Periods of Availability and rest periods to the overall calculation. On balance, I find the respondent’s evidence of the complainant’s actual working hours to be more reliable and persuasive. The tachograph data are provided by an external company and it seems breaks were not fully factored in by the complainant. On the basis of its investigation the respondent accepts that the ten-hour limit was breached on three occasions; twice very marginally and on the third occasion by some thirty-two minutes. The complaint under the Industrial Relations Act related to annual leave and the complainant confirmed at the hearing that agreement had been reached on this issue at local level. This was also the subject of a letter to the complainant on November 28th, 2018 in which the agreement was recorded. It is important to stress that the WRC will not, as a general principle, exercise jurisdiction in relation to industrial relations matters which have not been fully processed at the level of the workplace. The Labour Court has made it clear (in INT 1014) that ‘The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.’ In light of this line of thinking, it will come as no surprise therefore that, where a matter has actually been settled, the WRC will offer no ‘second bite at the cherry’ to a complainant (or respondent) who has had second thoughts about a matter which has already been settled. To do so, and it is not difficult to surmise that this is precisely the basis of the Labour Court’s position, would be to totally undermine workplace dispute resolution. A critical aspect of referrals under the Industrial Relations Act must be respect for industrial relations processes. Only when these have been exhausted should the services of adjudication be invoked. In addition, the complainant is bound by an agreement into which he freely entered. Accordingly, that matter can get no further hearing at this level. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00024408-001 and award the complainant €250. I do not uphold complaint CA-00024408-002 and it is dismissed. |
Dated: 01/04/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Working hours, Exhaustion of local procedures. |