FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : O'LEARY INTERNATIONAL UNLIMITED COMPANY T/A O'LEARY TRANSPORT (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) - AND - LIVIU SANDEL ZLOTEA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No ADJ-00012517.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 26 April 2019 in accordance with Section 28 (1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on 6 September 2019. The following is the Determination of the Court:-
DETERMINATION:
Background to the Appeal
This is an appeal by Mr Liviu Sandel Zlotea (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00012517, dated 19 March 2019) under the Organisation of Working Time Act 1997 (‘the Act’). Notice of Appeal was received by the Court on 26 April 2019. The Court heard the appeal in Dublin on 6 September 2019.
The Complainant commenced employment with O’Leary International Unlimited Company (‘the Respondent’) as an HGV Driver on 3 September 2014.
Claim of Penalisation
This is a complaint of penalisation contrary to section 26 of the Act. The Complainant referred a number of complaints under the Act to the Workplace Relations Commission on 2 June 2017 (See the Court’s determination, WTC/19/31). On 27 September 2017, a Director of the Respondent wrote to the Complainant advising him that the Respondent had commenced a review of the Complainant’s timesheets and directing the Complainant not to work in excess of forty-eight hours per week. The Complainant submits that the Respondent’s direction in this regard constitutes penalisation within the meaning of section 26. The Respondent submits that in directing the Complainant not to exceed forty-eight hours’ working time per week it was merely complying with S.I. No. 36 of 2012. This being the case – the Respondent further submits – the Complainant has not satisfied the ‘but for’ test for penalisation established by this Court inO’Neill v Toni & Guy Blackrock Limited[2010] 21 E.L.R. 1.
The Adjudication Officer held that the complaint of penalisation was not well-founded. Having considered the Parties’ detailed submissions on the appeal, the Court determines that the Respondent had bona fide concerns about the accuracy of the timesheets filed by the Complainant in the period immediately prior to September 2017. The purpose of the letter sent by the Respondent to the Complainant on 27 September 2017 was to put the Complainant on notice of the Respondent’s concerns and to ensure that there would be no breach of S.I. No. 36 of 2012 pending a review of the Complainant’s timesheets. Accordingly, the Court affirms the Adjudication Officer’s decision and finds that the matters complained of do not constitute penalisation.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
FMc______________________
25th November 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.