ADJUDICATION OFFICER DECISION AND RECOMMENDATION
Adjudication Reference: ADJ-00028569
Parties:
| Complainant | Respondent |
Anonymised Parties | Bus Driver | Bus Company |
Representatives | Thomas O'Connor National Bus & Rail Union | Senior Manager (Employee Relations) (Services Manager – North West) (Head of Employee Relations)
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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-00036947-001 | 10/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036947-002 | 10/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00036947-003 | 10/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00036947-004 | 10/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036947-005 | 10/06/2020 |
Date of Adjudication Hearing: 21/04/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint or complaints of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Instrument as may also be applicable under the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I (an Adjudicator so appointed) have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing. The Complaint herein was notified to the WRC by way of a Manual Complaint Form (received on the 10th of June 2020) which was prepared by the Complainant’s Union Representative.
In particular, the Complainant herein has referred the following complaints:
Complaint no. 1 –
Seeking adjudication pursuant to 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 of a contravention of Regulation 10 therein and concerning the issue of Night work.
It is noted that Regulation 10 (1) of SI 36/2012 reads:
“Subject to any derogations… the working time of a person performing mobile road transport activities, who performs nightwork in any period of 24 hours, shall not exceed 10 hours during that period”
Complaint no. 2 –
The Complainant herein has submitted a complaint under Section 27 of the Safety Health and Welfare at Work Act 2005 which protects employees form being penalised for having acted in compliance with the SHW Act, performed any duty under the SHW Act, made a complaint under the SHW Act or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005.
“penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)
Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –
Declare the complaint was well founded.
Require the Employer to take a specific course of Action.
Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.
The initial burden of proof is on the complainant to establish the existence a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause.
Complaint no. 3 –
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.
Complaint no. 4 –
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pays to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Complaint no. 5 –
The Complaint under the Organisation of Working Time Act 1997 was withdrawn.
Background:
I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard, I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. The Complainant herein submitted a Manual Complaint Form through his Union representative on the 10th of June 2020. This Complaint Form was not particularly detailed but subsequent written submission and oral evidence ultimately provided the specifics The Complainant is looking for adjudication on the issue of whether the Respondent can withhold pay in circumstances where the Complainant has raised an issue concerning safety and health and in breach of a European Directive.
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Summary of Complainant’s Case:
The Complainant was represented by his Union representative. I was provided with a comprehensive submission with appendices which was opened to me in the course of the hearing. I heard from the Complainant directly. |
Summary of Respondent’s Case:
The Respondent was represented by Senior Management. I was provided with a comprehensive submission regarding the Respondent’s position. This submission was opened to me and I additionally heard some oral evidence. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant is a bus driver employed by the Respondent company since 2013. As part of its service, the Respondent company operates a number of night-time express inter-city routes across the country. The Complainant employee has been rostered to drive these routes. There are up to 24 drivers operating out of the depot wherein the Complainant is posted. The night-time rosters are spread out amongst all the drivers on a pre-set three-week roster. In and around October 2019 the Complainant (along with two of his colleagues) raised a concern through his union representative regarding the rosters. Arising out of the subsequent engagement between the parties, the Complainant along with the same two colleagues submitted a manual complaint form (June 2020) to be considered by the WRC, in circumstances where they felt a genuine issue had been raised and the Employer had failed to adequately address that same issue. In the course of the hearing, it became clear to me that the primary issue related to the fact that the way that the rosters were organised compelled the Complainant (he said) to work in excess of 10 hours (including night-time hours) in a 24-hour period in contravention of Regulation 10 (1) of SI 36/2012 which reads:
“Subject to any derogations… the working time of a person performing mobile road transport activities, who performs nightwork in any period of 24 hours, shall not exceed 10 hours during that period”
The Complainant’s case is that there are 7 acknowledged 24-hourperiods in the week and that these run from midnight to midnight and that a mobile worker such as the complainant cannot lawfully be expected to drive more than ten hours in each such 24-hour period where night work is being performed. The Complainant derives this understanding from the Directive 2002/15/EC governing persons involved in road transport wherein it states at Section 3(g) “Week shall mean the period between 00.00 hours on Monday and 24.00 hours on Sunday.” The Complainant’s position is that a driver who has conducted night-time work cannot start work again until 24 hours has passed between the two start times of the first duty and the next duty. Put at its simplest, this would mean that if (after a day of rest) a Driver starts work at 4pm on day 1 and works for 10 hours until 2am then he/she should not be asked to work again until 4pm the next day, day 2. Such an employee could therefore only be working for 10 hours in the 24-hour period of day 2- 2 hours from midnight to 2am and 8 hours from 4pm to midnight. The Respondent on the other hand, maintains that a 24-hour period is not locked in from midnight to midnight and that the calculated 10 hours of work can be calculated over any 24-hour period so long as an employee does not work for more than 10 hours in any 24-hour period (and assuming Statutory breaks etc are all factored in). The Respondent argues that the Employee in the example given above and who finished work at 2am might in theory be called into work at midday and asked to work a 10-hour shift. The Respondent has argued that it is entitled to calculate a 24-hour period from the cessation of the last shift. The Respondent’s 24 hour opening therefore runs from 2am to 2am in this example. So long as the Complainant is only being asked to work 10 hours over the next 24 hours the Respondent does not fall foul of the Regulation 10 (1) of SI 36/2012. It should be noted that the issue of daily rest periods did not form part of the argument before me. I am assuming compliance as nothing to the contrary has been suggested. All the evidence turned on the question of the obligation to ensure a night-time driver worked no more than 10 hours in any period of 24 hours. The parties brought me through the various rosters applicable to the workplace. I accept that rosters of this nature are hard to prepare and implement. The return journey time has been calculated and is generally an unvarying part of the equation. I accept that on a bad night the round trip can take up to the 10 hours. I also accept that there is demand for this service and it has to be performed. For a myriad of different reasons passengers want to get to the capital city and the Respondent is obliged to provide the service a couple of times a night. I also accept that it is difficult for drivers. The driver is on his or her own. There is no relief in terms of a back-up driver. The entire round trip is performed by one individual. There is a moral as well as a legal expectation that the Driver should not be exhausted, or over-worked, or driving hours such as might cause his or her judgement to be impaired. These were issues of concern to the Complainant and when raised with the Employer, the Complainant asserts that his safety, health and welfare at work and the safety health and welfare of the end users was at stake. The Complainants representative brought my attention to a number of duty rotations (in weeks one and three) which breached their application of the 24-hour rule where the 24 hours ran from midnight to midnight. These are set out in the representative submissions and I do not propose re-stating them. Suffice to say that where one shift ends after midnight and another starts later that same day the complainant was, indeed, driving more than ten hours in that midnight-to-midnight period (circa 12 hours). The Respondent asked me to consider the same allocation of duty by reference to the end of each shift and the rosters allow for just shy of 10 hours in a given 24-hour period. In particular, I do note that the week 3 pattern is so tight that it does not really appear to allow for passengers getting on and off and the delay resulting therefrom. The Respondent has asked me to note that intensive shift patters are very often book-ended by rest days and that this is also factored in for the purpose of preparing Rosters. In any event, the Complainant and his two colleagues were not happy to perform the rosters on the basis of their perception that they were being asked to work for in excess of 10 hours in a midnight to midnight stretch of time. In consequence, once a month from December 2019 to the start of the Covid lockdown in the Spring of 2020 (April) the Complainant would not operate the rosters at issue and in consequence of this decision he was not paid for the rostered duty. The Complainant stated in evidence that this amounted to a loss of circa €189.00 per roster. When normal services resumed in and around October 2020 the Complainant continued to refuse to operate the offending rosters. The Complainant says that he had notified the depot inspector of the purported illegality. The Complainant has asked that I deem this non-payment as a deduction contrary to the Payment of Wages Act as well as a penalisation for making a complaint under the Safety Health and Welfare at work Act. I note that the Complainant continues to be in the employment of the Respondent company and has continued to operate all the other duties assigned on the timetable. At the time of the hearing the Complainant had missed some 11 rotations. The Respondent witness Mr KmcS indicated that he had taken legal advice when confronted with this issue and was happy to share the opinion he received, and which he says confirmed the Respondent’s previously held view that it was appropriate that the 24-hour period could be calculated from the end of a previous shift. He said that there was no way he would operate illegal rosters. Of his 24 drivers only the Complainant and his two colleagues were refusing to operate these few rotations. He said that the depot management team would have to find someone to replace the Complainant each time the Complainant refused to drive the shift rostered to him. The replacement driver was paid, and it did not make sense that the complainant would also expect to be paid. Mr. KMcS did not accept that there had been a deduction or penalisation in circumstances where the Complainant had simply refused to carry out the shift assigned. The Complainant could not expect to be remunerated for work not performed. On balance, I am of the view that SI 36/2012 does not provide for a prescriptive definition “of any period of 24 hours” as referred to inRegulation 10 (1) of SI 36/2012. I certainly can see no justification for asserting that the only interpretation is finding that there are 7 well-defined 24-hour periods in the working week starting at midnight on a Monday and falling in with the traditional days of the week. Such an assertion could never stand up to scrutiny where we know that working patterns and driving patterns operate at all times of the day and night. For many workplaces the traditional 9 to 6 patterns of working in a 24-hour period has long since ceased to exist. In general terms, I am inclined to accept that the Employer operates close to the margins but does not knowingly breach the 10-hour rules and has cited unexpected events such as roadworks or bad weather as possibly causing inadvertent breaches. |I accept that the Employer operates within the law and takes the responsibility for putting fresh, experienced and reliable drivers behind the wheels of the buses very seriously. I accept that the Employer made its logic known to the Complainant and his colleagues although there is some disagreement about whether or not the Employer was prepared to allow Union Representation at a meeting called between employer and employee to discuss the issues. The Employer witness said this was because there was no disciplinary aspect to any such meeting and the Employer is entitled to have a meeting with the Employee to explain the Employer’s viewpoint without a third-party representative. The Respondent wanted it noted that it is full compliance with its legal obligations in terms of compliance audits conducted by the RSA and that there is open dialogue with employees and their Unions to address issues as they arise and that the Respondent is always open to adjusting rosters if they can, and if it makes sense, and is in ease of their workforce I will acknowledge that I have had the benefit of reading the legal opinion obtained by the Respondent and released in part to the Complainant in course of their ongoing discussions and that that opinion has been helpful to me. I accept that in the circumstances outlined, the Respondent company was not obliged to remunerate the Complainant for a shift of work he was refusing to perform and which the Employer was having to pay another driver to complete on the Complainant’s behalf. The Respondent witness believed that the action of the complainant and his two colleagues has had significant reputational impact on the Respondent – though this was not elaborated upon. Regarding the issue of penalisation, I do not accept that the complainant has been penalised for making a complaint under the Safety Health and Welfare at Work Act. The penalisation complaint was not teased out in a particularly detailed way, but I am satisfied that the refusal to pay the Complainant for the non-performed rostered duty was not an action taken by the Respondent in some sort of retaliatory move against the complainant for having raised Safety issues. I am also satisfied that the said non-payment was not a deduction for the purpose of the payment of wages act. Non-payment arose in circumstances where the Complainant refused to perform a task that he was contractually obliged to perform I am satisfied that the issues that have arisen between the parties herein were dealt with by the Employer in a fair and satisfactory manner. The Complainant was given a reasonable and legally sound explanation for how and why the rosters were drawn up the way they were. The Complainant refused toa accept the explanation provided, refused to work the roster and put himself at a financial loss. |
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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
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-00036947-001 – This complaint was not well founded. There has been no contravention of Regulation 10 (1) of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00036947-002 – This complaint was withdrawn Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00036947-003 – This Complainant is not well founded. The perceived detriment (non-payment of monies) does not amount to a penalisation for having made a complaint under the Safety, Health and Welfare at Work Act. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00036947-004 - Having considered the merits of the dispute, I am making no recommendation.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00036947-005 - This Complaint is not well founded. There has been no unlawful deduction.
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Dated: 13-07-2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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