Complainant

Respondent

Anonymised Parties

A Farm Labourer

An Equine Centre

Representatives

Complainant

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038840-010

21/07/2020

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-00038840-011

21/07/2020

The complainant alleges that he was not given a copy of his terms of employment and that he was regularly required to work more than 50 hours per week for the duration of his employment.

The complainant commenced work with the respondent on 1st May 2019 and finished in September 2020. The complainant alleges that he never received a copy of his terms of employment and that he worked an average of 53 hours per week. The employer has no record of the actual hours worked whereas the complainant kept a diary recording his hours.

The Complainant provided landscaping and gardening services for the respondent from February to April 2019. As of May 2019, he expressed interest in learning about stud farming and horse breeding. He had never worked on a stud farm or with horses in any capacity. It was agreed that he would commence employment on a trial basis. The complainant demonstrated that he was a hard-working, diligent, punctual, and polite person from his services as a landscape gardener. Thus, the complainant was offered a position as a stud farm employee subject to a three-month trial period.

The Complainant was informed verbally that his salary would be calculated at €12.90 per hour for an on average 46-hour week. Start time would be 7.00 or 7.30 am depending on workload, with a 20-minute paid tea break and one or 1.5 hours break for lunch. Afternoons would be from 14.00 to 17.00 or 17.30 depending on workload.

The Complainant could manage his time and workload to keep within the average of 46 hours per week. As is the requirement on all premises with horses, he would be required to work every second weekend.

It was agreed that the complainant would be paid monthly via bank transfer and he commenced employment on the 1st May 2019.

During the summer of 2019, the complainant informed the respondent that that his parents had put their house on the market and that they intended to move to Cork and he was now homeless as a result. The respondent offered him temporary access to the mobile home in the yard. The Claimant was not charged any rent, electricity or any other costs and had free access to shower and laundry in our own house.

While gaining more experience and a deeper understanding of the breeding industry, the complainant also developed a profound interest in grassland management. He was facilitated with an introduction to Ireland's foremost expert in grassland management for stud farms and received assistance to get him accepted as a student at a University.

The nationwide lockdown as a result of Covid-19 imposed at the end of March 2020 proved a challenging period for everybody. A part time employee could not attend work so the work on the farm was covered by a number of people including the complainant. As it was stud breeding season, it was a very busy but also an interesting time with all the mares giving birth. The complainant chose to attend most of the foaling.

Every evening at six pm the complainant joined the Respondents for a three-course meal after showering at their home. Some evenings he also chose to ride out before supper. He got overtime pay at the end of July for the Lockdown Period.

Towards the middle of May 2020, the Respondent noticed a change in the complainant’s demeanour and attitude. He was sullen some of the time and appeared unhappy. The complainant gave verbal notice on Monday, 22nd June 2020 for the end of September 2020. On the 12th July 2020, there was confrontation between the complainant and the owner. On the 20th July 2020, the complainant was very hostile and stated that he had made a WRC complaint. The following day he furnished a Medical Certificate which was renewed until his employment terminated as per his notice on 30th September 2020.

The respondent refers to the well-established precedent of the Labour Court and the EAT, and the High Court, that where any breach of the 1994 Act is technical or minor in nature that the dictates of fairness or equity could not justify an award of compensation to the claimant. The respondent submits that this position applies equally to the current proceedings.

Under the Working Time Regulations 1997 working time itself is defined as: “ any period during which the worker is working at his or her employer's disposal and carrying out his or her activities or duties in terms of that, or any period where he or she is receiving relevant training, and any additional period designated as working under a relevant agreement”,

In many cases “mobile workers” have no fixed place of work but travel around as directed by their employer and to meet the needs of the employer. The most the complainant has to travel is 2.1 miles and therefore, the Complainant is not a mobile worker.

Complaint CA-00038840-010 – Terms of employment

The respondent acknowledges that the complainant was not given a copy of his terms of employment as required by the Terms of Employment (Information) Act, 1994. The respondent has argued that this is a technical breach of the Act and should not justify compensation. However, at the core of the complaint in this instance is the weekly hours that the complainant was required to work. In the absence of written terms of employment it is understandable that he would be uncertain of his position regarding these working hours and breaks.   Clearly therefore, the absence of written terms of employment had a significant impact on him and could not be considered a trivial matter. The complaint is well founded.

Complaint CA-00038840-011

The Complainant indicated that he was making a complaint 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. I do not accept that he was a mobile worker for the purpose of the that legislation. However, the complainant, in his written complaint, referred to the hours he worked and therefore I am considering that complaint under the Organisation of Working Time Act 1997 and specifically in relation to Section 15 of that Act dealing with weekly maximum working hours. From the evidence provided by the complainant it is clear that he was on call as needed. The employer has no records to support the contention that the complainant worked 46 hours per week other than that is what he was paid for. I accept the evidence of the complainant that he worked in excess of 50 hours per week on an ongoing basis. The complaint is therefore well founded.

The complaint under section 7 of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant the sum of €1000 in compensation.

The complaint under section 27 of the Organisation of Working Time Act 1997 is well founded and I order the respondent to pay the complainant the sum of €5000 in compensation.

Terms of employment.   Weekly working hours