ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020971

Parties:

	Complainant	Respondent
Anonymised Parties	A Truck Driver	A Transport Company

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-00027532-001	05/04/2019
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-00027532-002	05/04/2019
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-00027532-003	05/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027532-004	05/04/2019

Date of Adjudication Hearing: 03/09/2019 and 03/02/2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant lodged a number of complaints against his former employer concerning the working of the greater number of average hours allowed per week, keeping of records, night hours, breaks and the non-provision of a written contract.

Summary of Complainant’s Case:

The Complainant was employed from July 1st 2013 to February 1st 2019 as a Driver. He lodged a number of complaints with the WRC against his former employer on April 5th 2019.

The Complainant drove a goods vehicle between Limerick and Dublin. He would commence work between 6pm and 6.30 pm but some times earlier, 5 days a week, Monday to Friday.

He would assist with loading goods and departure time depended on when the truck was loaded often between 8pm and 11pm. Driving time was 2.40 hours. He would then assist with the unloading/loading in Dublin and this might take two hours or so. He would then drive back to Limerick and maybe stop for diesel on the way. He would arrive back anytime between 4am and 6.30 am.

The Complainants nett pay was 600.78 Euros per week.

The Complainant alleged that the Respondent breached the Organisation of Working Time (2012 Regulations) European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The Complainant alleged the Respondent was in breach of Section 10 (Night Work) where the maximum number of night hours a Mobile Worker can work in 24 hours is 10 during that period (Section 10.1).The Complainant alleged he normally worked 10 hours a day and this involved driving a goods vehicle between Midnight and 4am. (CA-00027532-002)

The Complainant alleged that the Respondent breached the Organisation of Working Time (2012 Regulations) European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The Complainant alleged the Respondent was in breach of Section 8 (Breaks from work) where a Mobile Worker is required to have a break after 6 hours work (Section 8.1), or if the hours of work are between 6 and 9 hours (Section 8.2) a Mobile Worker must get a 30 minute break interrupting that time or if they work greater than 9 hours they must get a 45 minute break. The Complainant alleged he almost never had a break. (CA-00027532-003)

The Complainant was never supplied with written terms and conditions of employment in breach of Section 3.1 of the Terms of Employment (Information) Act 1994 (CA-00027532-004).

The Complainant seeks compensation for the breaches.

Summary of Respondent’s Case:

The Respondent accepted that they did not provide a written statement of terms and conditions of employment but stated that the Complainant was not disadvantaged in any way by this omission.

The Respondent was not notified of the reference period until the first Hearing and therefore could not provide the records sought by the Complainants Solicitor.

The Respondent denied that the Complainant worked in excess of 48 hours per week in the reference period based on the records of work for the Complainant.

The Respondent denied that they were in breach of Section 8.1 (Breaks) in the reference period based on the records of breaks for the Complainant.

The Respondent denied that they were in breach of Section 10 (Maximum Number of night hours in a 24 hour period) in the reference period based on the records of night hours worked for the Complainant.

The Respondent denied that they were in breach of Section 12 (Kepping Records) and produced the records for the reference period for the Complainant at the second Hearing.

The Respondent submitted an email from the Company where the Complainant would deliver goods stating that the Complainant could not have used mobile equipment on their site as only their staff are allowed use such equipment and they must complete FLT training on their site and be licensed to use the equipment and they have no one from the Respondent company who had engaged in this training or was licenced to use the mobile equipment on their site. The Respondent therefore refuted the Complainants claim that he was loading and unloading deliveries when he arrived at the client premises and this was not part of his duties if he did so.

Decision:

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

Section 3.1 of the Terms of Employment (Information ) Act 1994 states that

“An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”.

The Respondent admitted they were in breach of the Terms of Employment (Information) Act 1994. I find the Complainants claim well founded and award him 2,400 Euros for the breach of Section 3.1. of the Terms of Employment (Information) Act 1994. (Reference Number CA-00027532-004).

With regard to the complaints under the Organisation of Working Time Act the Complainant elected to have the four month reference period for his claims, as required, as from September 1st 2018 to January 1st 2019. The Respondent produced records at the second Hearing for the months of Driver Activity from September 3rd 2018 to November 9th 2018 and these records were accepted by all parties as reflective of the total reference period. The records were not summarised in detail prior to or at the Hearing. Therefore, the detailed analysis took place by the Adjudicator after the Hearing, which was not ideal in terms of evaluating the information on the day of the Hearing with the parties present.

The Complainant alleged that the Respondent was in breach of Section 12 (d) of the Organisation of Working Time (2012 Regulations) European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 by not keeping records of his transport hours. At the Hearing the Respondent produced the records for the (accepted) reference period decided by the Complainant to justify his claim. The Complainant worked five days a week. With regard to the claim that the Complainant worked more than 48 hours on average every week in the reference period an examination of the records for the reference period showed that the Complainant worked a total of 38 days and in only two of those days did the average daily working hours exceed 9.6 hours (by approximately an hour each day) with 36 days being well below 9.6 hours per day so therefore the average weekly working hours per week could not mathematically have exceeded 48 in the reference period. I find that claim refence number CA-00027532-001 is therefore not well founded on both issues.

With regard to the alleged breach of Section 10 (Night Work) where the maximum number of night hours a Mobile Worker can work in 24 hours is 10 during that period (Section 10.1). The Complainant alleged he normally worked 10 hours a day and this involved driving a goods vehicle between Midnight and 4am. On examination of the records for the reference period, on only two occasions the number of hours exceed 10 hours ( September 19th 2018 and October 2nd 2018 ) when hours classified as “night hours” (between midnight and 4am) in the Regulations in a 24 hour period were worked. In one case the breach was for an hour and the other 39 minutes. I find that claim reference number CA-00027532-002 therefore is well founded. However, as the breach is a minor one in the scale of the total work hours and was a non recurring breach of the Regulation, the compensation awarded must reflect the breach and I award the Complainant 200 Euros Compensation.

With regard to the alleged breach of Section 8.2 if the hours of work are between 6 and 9 hours a Mobile Worker must get a 30 minute break interrupting that time. The Complainant alleged he almost never had a break during the reference period. On examination of the records the Complainants records showed a break on every day and generally between 1 and 2 hours duration and the breaks were never less than 45 minutes as required under the maximum working hours conditions under Regulation 8. I find claim refence number CA-00027532-003) is therefore not well founded.

Dated: 1st April 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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