Complainant

Respondent

Anonymised Parties

HGV Driver

Transport Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00024489-001

31/12/2018

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-00024489-002

31/12/2018

The Complainant was employed as a HGV Driver from 8th June 2015 to 8th September 2018. He was paid €650.00 per week. He has claimed that he was constructively dismissed and the Respondent has breached the regulations contained in SI 36/2012. He is seeking compensation.

The Complainant stated that on 20th August 2018 he received a letter from the Respondent informing him that the tacograph was not properly supported and they will not give him a truck until he operates it as they wish him to do. He was then forced to terminate his employment because they, for a very long time are not complying with the working time directive of maximum 48 hours per week. They are forcing him to break the law. They don’t respect the 48 hour maximum and they don’t pay overtime. He has become very stressed from all of this. Nobody is on his side and the employees are in non-observance of working time. The Respondent and their incompetent collaborators have found the key to success at the expense of safety of drivers and indirectly the general public. The Respondent has erroneously determined what working time is. They have tried to persuade him to choose the setting POA on the tacograph . He has a certificate of professional competence. He stated that the improper use of the tacopgraph is a very serious violation of the directive No 165/2014. He was therefore forced to terminate his employment because he did not want to take responsibility for possible consequences of non-compliance with the relevant procedures. He is seeking compensation.

The Respondent stated that as matter of preliminary importance the Complainant has failed to take the necessary internal steps to put forward his position and so his claim should fail. In his claim he references the matters that caused him to resign his position but he has not made any reference to steps taken to resolve these matters. The Respondent has a detailed grievance procedure and he has not used it. The Road Safety Authority has an online complaints procedure and he could have used that either but he didn’t. He could have lodged a complaint to the WRC under the Organisation of Working Time and he didn’t have to resign.

He was employed as a driver of HGVs and it requires the full use of the tacograph. His work mainly involves the delivery of chemicals nationwide. All his duties are covered by the normal RSA/tacograph rules. The issue in dispute is the categorisation of activities as recorded by him. There is no dispute with his Driving Time and Other Work categorisation. The other categorisation POA (period of availability) is the sole area of dispute. Despite numerous instructions to log POA he refused to do so and recorded the time as Other Work. This is a very serious misrepresentation of as Other Work is working time whereas POA is not. The incorrect recording of time means that he has showed up as working in excess of 48 hours when his actual working time was well under 48 hours. His wages were unaffected by this as he is paid for all time while at work, irrespective of what categorisation it is under. The Respondent uses an independent professional to monitor the use of tacographs in this company. There are multiple infringements on the Complainant’s records. These records are also monitored by the Respondent’s Quality Environment and Safety Manager.   These would not be infringements if he had correctly categorised the working time. He originally signed that it had been explained to him. But from mid-2018 he refused to sign this. Despite having been spoken to on numerous times he continued to categorise hours incorrectly. He was the only driver out of 40 in the company doing this. Both the RSA and the professional external organisation confirmed that they were using the correct interpretation of the tacograph rules. His continuing refusal to correctly record his hours could not be tolerated. On 20th August 2018 the Respondent wrote to the Complainant and translated it for him and advised that he would not be rostered until he was willing to comply with the Company’s position on tacograph rules.   They could not allow him falsely record serious breaches of regulations. He then resigned his position.

It is their position that he repeatedly ignored company’s instructions to correctly record his hours of work, He failed to utilise the internal grievance procedure. He failed to use the RSA complaint procedure. He failed to use the WRC procedure. There is no basis for this complaint. Applying the contract test there has been no breach of his contract and applying the reasonableness test there was no unreasonable behaviour by the Respondent. Case law was cited in support.

This complaint is rejected.

I find that the Complainant has failed to understand and accept the meaning of the categorisation POA.

I note that in SI 136/2012 Regulation 6 states Periods of availability, break times and rest times shall not be included in the calculation of working time.

I find that this is the law.

So, I find that the Complainant has misunderstood its definition and refused to accept the correct interpretation of the law.

I find that the interpretation was explained to him on numerous occasions but he continued to ignore managements’ instructions. This is a very serious breach of conduct.

I find that he was the only Driver out of a workforce of 40 to refuse to record hours correctly.

I find that he had this matter explained to him on numerous occasions.

I find that on the 20thAugust 2018 the company correctly in my opinion, warned him in writing and removed him from driving until such a time that he adhered to company instructions to operate the tacograph correctly.

I find that he resigned his position giving two weeks’ notice and was out sick for that period.

I find that he failed to utilise any avenues to pursue and exhaust his grievances.

Definition of constructive dismissal

Sec 1(b) of the Unfair Dismissals Act “the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in   which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

I find that in a constructive dismissal claim the burden of proof shifts to the Complainant. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign.

The Complainant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct to make them resign.

In Dr Mary Redmond in “Dismissal Law in Ireland P340 states, “There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway v Ulster Bank Ltd In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaint.”

In Berber v Dunnes Stotres 2009 ELR 61 Finnegan J stated: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it”.

In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Labour Court UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.

So it is clear from the above stated cases that the onus is clearly on the Complainant to raise and exhaust the internal grievance procedure and to demonstrate that the conduct of the Respondent was such that the Complainant had no option but to resign his position and that this was the only reasonable option available.

In this case I find that the Complainant has failed completely to raise and exhaust the grievance procedure.

I find that he has not shown that the conduct of the Respondent was such that he had no option but to resign.

I find that the Respondent’s conduct was not improper in any way.

In fact, I find that the Respondent has shown considerable patience with him.

I also find that it was wholly unreasonable for the Complainant to resign his position.

I find that the Complainant has not met any of the required thresholds to substantiate a claim for constructive dismissal.

He stated that at very early stage of his employment he was working in excess of 60 hours per week. He raised this with the Respondent on several, occasions but nothing changed. Working these excessive hours eventually forced him to resign his position. He regularly worked from 4.00 to 7.00 am to 21.00 hours each day. Some days lasted 15 hours. 48 hours were exceeded on a regular basis. He believes that he has worked 620 hours overtime and not paid overtime in the last two years. He stated that hours of work are from start to finish. The Respondent has breached the directive on working hours. He is seeking ciompensation.

They stated that his work mainly involves the delivery of chemicals nationwide. All his duties are covered by the normal RSA/tacograph rules. The issue in dispute is the categorisation of activities as recorded by him. There is no dispute with his Driving Time and Other Work categorisation. The other categorisation POA (period of availability) is the sole area of dispute. Despite numerous instructions to log POA he refused to do so and recorded the time as Other Work. This is a very serious misrepresentation of as Other Work is working time whereas POA is not. The incorrect recording of time means that he has showed up as working in excess of 48 hours when his actual working time was well under 48 hours. The Statutory 1nstrument 36/2012 Regulation 6 states “Periods of availability, break times and rest times shall not be included in the calculation of working time”. The Complainant has incorrectly categorised his hours of work resulting in him believing that he has working hours in excess of 60 hours per week.

This is not the case. The Respondent has applied the Statutory Instrument correctly and his actual hours of work are well below 48 hours per week. It should also be noted that he is paid for all the time that he is at work however the hours under POA do not count as working hours as per the law under SI 36/2012.

He has no responsibility to supervise unloading of chemicals. This is done by specialised people in a strictly controlled site. All other employees accept and operate POA correctly. The RSA has verified that the Respondent is interpreting it correctly. The Complainant has been paid for all time at work and his working hours are well below 48 hours per week. This complaint is rejected.

I find that this dispute centres on the interpretation of the tacograph categorisations.

I note that there are no disputes regarding Driving and Other Work categorisations.

I note that the Complainant has refused to categorise POA and this results in him believing that he worked in excess of 60 hours per week.

I find that the Respondent has instructed him on the correct way to categorise work.

I find that the RSA and an independent professional monitoring of tacographs company have both affirmed that the Respondent is interpreting and implementing the rules correctly.

I note that in the Statutory Instrument 36/2012, Regulation 6 states: Periods of availability, break times and rest times shall not be included in the calculation of working time.

I find that this is the Statutory Instrument that the Complainant is relying upon to ground his claim for working excessive hours, yet I find that he does not accept Regulation 6 set out above, which is rather inconsistent approach to be taking.

I am satisfied from the evidence presented by the Respondent and a plain reading of Regulation 6 is that periods of availability (POA) do not count as working hours.

Therefore, I find that the Complainant has miscalculated his hours of work and he has not worked hours in excess of 48 hours per week. I note from the records supplied by the Respondent that his net hours are significantly less than 48 hours per week.

I find that the Complainant is paid for all time from start to finish but the time spent in POA periods of availability is not designated working hours by law.

I find that the Respondent has not breached SI 36/2012.

Excessive working hours