Complainant

Respondent

Parties

Mark  Greaney

Bus Eireann

Representatives

National Bus & Rail Union

 Head of Employee Relations

Act

Complaint Reference No.

Date of Receipt

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

CA-00044440-001

01/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044440-002

01/06/2021

The Complainant has been employed by Bus Éireann from April 2012 as a Bus Driver, operating from the Galway depot.  The Complainant works a city roster of 20 weeks duration and his start and finish times are generally known.

The Complainant has submitted a complaint of penalisation under the Organisation of Working Time Act, 1997 and a complaint under the Payment of Wages Act, 1991 alleging that he was not notified in advance of a deduction from his wages.

The Complainant submits as follows:

Bus Éireann, in conjunction with the National Transport Authority, decided to operate Sunday services over the 2020 Christmas period. Under existing agreements certain duties from the Monday to Friday rosters are paired up with their Sunday counterparts because there is a lesser requirement for drivers on a Sunday. Those drivers with no Sunday match are rostered SOPH (Service Off Public Holiday).  The Complainant’s normal roster would have seen his duty as being SOPH on the 28th December 2020.  The Complainant contends that the Respondent had made a decision not to operate the agreed system but to split every duty on the 28th December 2020 in two.  The Complainant contends that there was no meeting, notification or collective agreement in relation to this decision.

The Complainant spoke to the Services Manager at approximately 12 noon on 24th December 2020 to clarify his work situation on the 28th December 2020.  However, no duty notification or start and finish times for the 28th December 2020 was available on the 24th December 2020.  The Complainant contends that as he had no fixed start and finish times for the 28th December 2020, there was a statutory duty on the Respondent, pursuant to section 17(1) of the Organisation of Working Time Act, to notify the Complainant of his start and finish times at least 24 hours in advance.

The half duty that that the Complainant was required to work on the 28th December 2020 was due to commence at 14.44 hours on that day.  As the Complainant was off work on 25th,  26th and 27th December 2020, he contends that notification for this duty should have been posted by 14.44 hours on 24th December 2020 at the latest.  The only way the Complainant had of finding out what his start and finish time were for 28th December 2020 was to interrupt his time off with calls regarding work related matters or by logging onto a work App on his time off. 

Where changes were made to the Complainant’s duty for 28th December 2020, the Respondent was required under the Organisation of Working Time Act to provide 24 hours advance notice of the new start and finish times. It did not do so and the Complainant was penalised by the deduction of €165.20 from his wages. Furthermore, his record is now sullied with a "no show" or absent without leave recorded against him.

The Labour Court determination Stobart (Ireland) Driver Services Limited and Seven Workers  DWT 1437 is one of many determinations by the Labour Court concerning the provisions of Section 17 of the 1997 Organisation of Working Time Act, 1997.  In that determination, the Labour Court found that: “… the respondent is required to give the claimants 24 hours’ notice of their shift commencement times.”

The Complainant submits that he was unfairly penalised owing to the failure of the Respondent to apply the provisions of section 17 of the Organisation of Working Time Act.

The Respondent submits as follows:

On 23rd December 2020, the Services Manager, Galway, contacted the Complainant, in his capacity as NBRU representative in Galway, and his SIPTU counterpart, to confirm to both of them that, in relation to the Christmas operating arrangements, Monday 28th December 2020 was a normal working day, and not a public holiday.  The Services Manager advised both union representatives that a Sunday service would operate on 28thDecember 2020, meaning there would be a reduced level of service on that day.

As a result of union representations made at a central level to senior management of Bus Éireann, agreement had been reached to split a number of the Sunday duties in various locations, including Galway, on 28th December 2020.  The reason for this was that some Sunday duties are longer than the comparable weekday duty and, in order to facilitate drivers and ensure they did not have to work extended hours on the 28th December 2020, the unions were seeking to split the duties between 2 drivers.  The Services Manager advised both union representatives on 23rd December 2020 that the drivers, whose routes were not operating on 28th December 2020 because of the reduction in duties, would be required to come into work and work a split duty on that day.  This would mean each driver would work a reduced working day in return for a full day’s pay.

The Complainant advised the Services Manager that some drivers had already made plans for 28th December 2020 and the Services Manager told the Complainant that if any driver wanted to take that day off, they could apply for annual leave or a day off in lieu and this would be facilitated where possible.

Consequently, a number of drivers applied for annual leave, or a day off in lieu for 28th December 2020. As a result of the split shifts arrangement which applied on 28th December 2020 and the number of driving who wished to take annual leave on that day, the construction of the roster was complicated.  This was further compounded by the driving hours compliance requirements.  All of these factors resulted in a delay in the issuing of the roster for 28th December 2020.

The Services Manager was contacted by the Complainant again on 24th December 2020 and confirmed the local supervisors were still working to complete the roster because of the particular complexities involved.  The Services Manager also confirmed again to the Complainant that, because of the split shifts, the 21 drivers whose duties were not operating would be required to work these split shifts on 28th December 2020 unless they had applied for annual leave or a day in lieu on that day.  The Complainant was one of these 21 drivers.

Of the 21 drivers whose duties were not operating on 28th December 2020, 17 worked a split shift on 28th December 2020. 2 other drivers applied for annual leave and 1 other applied for a day off in lieu.  The Complainant did not apply for either annual leave or a day in lieu nor did he show for work on 28th December 2020.

The Complainant finished his shift at 21.34 on 24th December 2020, by which time the roster had been posted up in the depot and advertised on the company Workvivo App.  Over 2,400 of the 2,700 staff in Bus Eireann use the Workvivo App for multiple purposes, including to review their rosters.  The Complainant is active on Workvivo.

The roster on 24thDecember 2020, however, did not confirm the precise start and finish time for the Complainant on 28th December 2020 - the cell beside his name was blank.  This would have indicated to the Complainant that his duty on 28th December 2020 was still to be confirmed – it does not signify he has no duty; rather, it indicates there is no duty assigned yet.

The Complainant was then absent from work the following day, 25th December 2020 as no services operated on that day.  He was due into work at 16.10 on 26th December 2020 but, as his duty was not operating on the day, he remained at home, and was paid for the day.  Technically, this was a working day for the Complainant and, in the event of him being required to work for exceptional reasons, he could be contacted to come in; this is usually done on a seniority basis by the company if required.

The local supervisors published the revised roster on Workvivo at 14.56 on 26th December 2020 and also in the depot on 26th December 2020 at 16.00.  This allowed the Complainant to immediately access his confirmed duty for 28th December 20202, thus providing him with the requisite notification under section 17 of the Organisation of Working Time Act.  Indeed, if he was unsure about his roster on 28th December 2020, he had numerous means by which he could have confirmed his working arrangements for the day including contacting a supervisor or calling the Services Manager on the 26th December 2020.

The Complainant was on a rest day on 27th December 2020 and did not turn up for duty on 28th December 2020 as rostered.  He was marked down as a ‘no show’ for the day and was not paid as a result.

This matter was the subsequent focus of a grievance which the Complainant submitted under the Bus Eireann grievance procedures, which was not upheld.

It is the Respondent’s contention that confirming the start and finish time for duty on 28th December 2020 on the roster, which was published on the Workvivo App at 14:56 on 26th December 2020, and which was immediately available for the Complainant to view, clearly meets the requirement of section 17(1) and section 17(3) of the OWT Act.  Furthermore, it is the company’s contention that the posting of the roster on 26th December 2020 at 16.00 in the depot also meets the requirements of section 17(1) and section 17(3) – this is on the basis that the 26th December 2020 was technically a working day for the Complainant but he was paid to remain at home as his service was not running that day.  However, this was not a rest day.

The Complainant submitted a complaint to the WRC that he was penalised or threatened with penalisation for invoking his rights or giving notice of his intention of doing so under the Organisation of Working Time Act, 1997. 

At the adjudication hearing, the Complainant confirmed that the alleged penalisation occurred when  €165.20 was deducted from his wages in respect of the 28th December 2020. 

The Complainant is paid weekly.  The deduction of €165.20 in respect of the 28th December 2020 was made from his wages on the following Thursday, 31st January 2020.  The Complainant raised a grievance about the deduction from his wages on 9th February 2021.  In the grievance he referred to the Organisation of Working Time Act. 1997.  The Complainant submitted his complaint referral form to the WRC on 1st June 2021.

I find that since the alleged penalisation occurred prior to the Complainant invoking his rights or giving notice of his intention of doing so under the Organisation of Working Time Act, 1997, there is no causal connection between the alleged penalisation and the invoking of his rights by the Complainant.  I find, therefore, that this complaint is not well founded.

I declare that this complaint is not well founded.

The Complainant submits as follows:

The Respondent failed to give him the legally required notice of start and finish times for his roster on 28th December 2020.  The Complainant did not work on the 28th December 2020 because he did not receive any notice of his start and finish times.  The Respondent were required to furnish the Complainant at least one week prior to making of the deduction of €165.20, with particulars in writing of the alleged act or omission and the amount of the deduction. No prior notice of any kind was received.

At the adjudication hearing, the Complainant’s representative said the Complainant could not ignore a breach of the Organisation of Working Time Act and, therefore, could not come into work on the 28th December 2020.  He added that the Complainant feels that there should have been a disciplinary procedure before wages were deducted.

The Respondent submits as follows:

The Respondent contends there has been no deduction from the wages of the Complainant for the work he completed in December 2020, and, therefore, no breach of the Act has occurred.  The Complainant was paid his public holiday entitlement for 25th December 2020 and paid appropriately for 26th December 2020 which was technically a workday, and he had a rest day on 27th December 2020.  He was not paid for 28th  December 2020 because he did not turn up for work and had no entitlement, therefore, to wages for that day.

From the conversations which the Complainant had with the Services Manager on 23rd and 24th December 2020, he clearly understood he was required to work on 28th December 2020 and would be rostered to complete a split shift on that day.  His decision not to turn up for work on 28th December 2020, nor to make any efforts to clarify his roster arrangements between 24th and 27th December 2020, is entirely unreasonable.

The Complainant told the Services Manager that he had made plans for 28th December 2020 as had other drivers, and the Services Manager advised the Complainant that if any driver wanted the 28th December 2020 off, they could apply for annual   leave or a day in lieu.  The Complainant did not apply for either.

Of the 21 drivers, whose duties were not operating on 28th December 2020, 17 attended work to work the split shifts allocated to them, 2 others applied for annual leave and 1 other for a day in lieu.  The Complainant was the only driver who did not apply for leave and did not attend work.

The Complainant was provided with confirmation of his roster for 28th December 2020 at 14.56 on 26th December 2020, which was posted on the Workvivo App, to which he has immediate access.  It was also posted in the depot at 16.00 that day. The Complainant was technically at work on the 26th December 2020 and had numerous means by which he could confirm his roster for 28th December 2020. This meets the notification requirements under section 17 of the Organisation of Working Time Act and, accordingly, there is no breach of that Act.

As the Complainant did not turn up for work on 28th December 2020, and had not applied for annual leave, or a day off in lieu, he was not paid for that day, as he had not worked.  There is no breach of the Payment of Wages Act as a deduction has not been made from the Complainant’s pay; rather he was not entitled to be paid for hours he did not work. 

In his oral evidence, the Head of Employee Relations said that the Complainant could have worked under protest on the 28th and subsequently raised the matter as an IR issue.  He said that, although it is not in writing, it is custom and practice in the Respondent organisation that drivers who do not turn up for duty without prior authorisation, do not get paid.  The Head of Employee Relations also said that in his role as an NBRU representative, the Complainant would have represented other drivers who were not paid when they had unauthorised absences from work. 

This is a complaint under the Payment of Wages Act, 1991.  The crux of this complaint appears to be that the Complainant did not show for work on the 28th December 2020 because he believed that the Respondent was in breach of section 17 of the Organisation of Working Time Act, 1997.  

My remit in relation to this complaint is confined to investing whether or not a breach of the Payment of Wages Act occurred.  I will not be making any findings in relation to an alleged breach of section 17 of the Organisation of Working Time Act.  However, I will be referring to the provisions of that Act in the course of my investigation.

Section 27 of the Organisation of Working Time Act empowers an Adjudication Officer of the Workplace Relations Commission to make a decision in relation to an alleged contravention of the Act.  Section 28 of the Act provides that the decision of an Adjudication Officer may be appealed to the Labour Court.  The Act does not empower any other body or individual, including a complainant, to make a decision under the Act.  I find, therefore, that it was not open to the Complainant to decide that the Respondent had breached the provisions of the Organisation of Working Time Act and to act on that erroneous decision. 

The Complainant alleges that the Respondent made an unauthorised deduction from his wages in breach of section 5(2)(b)(iv) of the Payment of Wages Act, 1991 which provides that

“(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless–

…

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and …”

The Respondent has refuted the claim that a deduction was made from the Complainant’s wages and has argued that as the Complainant had an unauthorised absence from work on the 28th December 2020, in line with custom and practice, he had no entitlement to payment for that day.

Based on the totality of evidence adduced, I am of the view that the Complainant knew that he was rostered to work on the 28th December 2020.  He took it upon himself to find that the Respondent was in breach of section 17 of the Organisation of Working Time Act and did not turn up for work.  As explained above, this decision was not one that the Complainant had the authority to make. 

I find that as the Complainant did not work on the 28th December 2020, and was not authorised to be absent on that day, he was not entitled to be paid.  I find accordingly, that the Respondent did not deduct wages that were properly payable to the Complainant and, therefore, is not in breach of the provisions of section 5 of the Payment of Wages Act.

I decide that this complaint is not well founded.

Penalisation under the Organisation of Working Time Act.  No deduction under the Payment of Wages Act.