ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029339
Parties:
| Complainant | Respondent |
Anonymised Parties | Employee | Employer |
Representatives | Thomas O'Connor: National Bus & Rail Union ,Paul Rowsome: National Bus and Rail Union | Brendan McCarthy
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Complaint:
Act | Complaint/Dispute 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-00039029-001 | 04/08/2020 |
Date of Adjudication Hearing: 24/03/2021
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 of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, 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 have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred one complaint:
The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 17 of the Act which obliges the employer to provide certain information in relation to working time. In particular Section 17 reads:-
17.--- (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee (subject to section (3)), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or as the case may be the day or days concerned, of that week.
This obligation shall extend to any additional hours that an employee might be required to work (per subsection (2)). And
(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Background:
The Complaint herein issued on the 4th of August 2020 and relates to an alleged contravention of Section 17 of the Organisation of Working Time Act 1997. This hearing was dealt with remotely in consequence of the covid pandemic. I am satisfied that the parties were happy to proceed on this basis and that no disadvantage arose by reason of the remote hearing. |
Summary of Complainant’s Case:
The Complainant submitted his workplace relations complaint form on the 4th of August 2020, which means I have jurisdiction to consider any contravention which may have occurred in the six month period prior to this date. The Complainant was represented by two persons from the National Bus and Rail Union. I was also provided with a comprehensive submission which was opened to me. This included some documentary evidence and relevant case law. I also heard from the Complainant directly, and his evidence was tested by the Respondent. |
Summary of Respondent’s Case:
The Respondent was represented by it’s own Senior Partner BMcC and he provided me with a submission from the Respondent. A MsNS also gave evidence on behalf of the Respondent company. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant gave oral evidence concerning his position. The Complainant commenced employment in and around August 2018. My understanding is that the Complainant issued this complaint (to the WRC) in the aftermath of receiving an unsatisfactory (to him) outcome of a Grievance process dealt with in the workplace. In his complaint form, the Complainant identifies a breach of the OWT Act having occurred on the 20th of May though the Complainant submission identifies the Grievance as having been lodged on the previous day, May 19th. In any event the issue appears to be a perceived failure on the part of the Employer to afford the Complainant his statutory right of 24 hour advance notice of the start (and finish) time of his duty. This obligation arises pursuant to Section 17 of the OWT Act mentioned above. This appears to happen when the Complainant is rostered for “Spare Duty” and possibly on bank Holidays when the start and finish times might not be fixed until closer to the date. It appears to be common case between the parties that driving rosters are prepared and published well in advance of the days and weeks they are to be implemented. These are initially published on a company App which is readily downloadable onto any employees phone. For reasons not clear to me, the Complainant has resisted downloading the App or using the facility contained therein. The Complainant says he should not be obliged to and that such an App would of necessity be referenced when he is away form the workplace and therefore eat into his leisure time. He argues that there is an onus on the employer to post the proposed rosters (including start and finish times) in a conspicuous location as per the obligation set out in sect 17(5). There is, he says, a workplace notice board where the rosters should be pinned up and any changes should be notified through the notice board. I think it is agreed that most of the time the Complainant is aware of what his roster is and that the issue only arises when a “spare day” (or possibly a Public Holiday) appears on his Roster. These are, he said, randomly assigned and the start and finish times only clarify in the immediate run up to the day itself. I understand that the “spare days” are allocated across all the drivers to deal with Roster changes arising as a result of holidays, absenteeism, force majeur situations etc. He says he cannot be expected to work the “spare days” assigned to him if he is not notified well in advance of the start and finish times. It seems that the he was notified less than 24 hours in advance in and around a date before the 19th or 20th of May 2020 which gave rise to a Grievance and ultimately to this allegation of a contravention of the OWT Act. It is worth noting at this juncture that the Complainant has never missed work or been late or failed to turn in pursuant to whatever roster is assigned to him. He is simply making the point that he should be notified of each days work at least 24 hours in advance and by way of publication in a conspicuous location. The Respondent is emphatic that the start and finish times of these so-called Spare days are published at least a week in advance of their occurring. Standard Rosters do appear to go up on the notice Board subject to amendment every two or three months. A more detailed and reactive Roster is published on the Company App which is readily accessible. The Company argues that posting the duties on the App is in keeping with the Statutory requirement of posting in a conspicuous location. This is legislation dating back to 1997 and has to be expected to evolve along with the changing times and universal mobile phone ownership. On balance I accept this argument and find that the regular publication of rosters on a phone App must be considered a conspicuous location in a modern setting and one which the complainant readily admits he is aware of. I further confirm that I do not agree that there would be no opportunity in the working day to consult such an App outside of driving duties and statutory rest breaks. The assertion lacks credibility. In the course of the in house Grievance, the Complainant was advised that if he did not want to consult the App then that would put the onus on him to ask a Supervisor what his start and finish times might be – presumably so his supervisor could consult the App? The Complainant argued that the opportunity for human error was worrisome to him if he had to go to the “hatch” and ask for the information. What if his Supervisor gave him the incorrect information and he had no way of proving this. This was, of course, a hypothetical scenario that had not yet occurred and could easily have been overcome with the supervisor putting his or her initials to a written note. In any event, much of the evidence I heard was straying into the realm of a dispute to be dealt with under the Industrial Relations legislation scenario
I understand that the Respondent company provides a public transport service pursuant to a contract held with the National Transport Authority. The Respondent emphasised that the NTA operates to the highest of legislative, safety and environmental standards and that the obligation is on the Respondent to adhere to the NTA rules which the Respondent does willingly. Ms NS was clear that the company provides all rosters well in advance and that “Spare Days” are well flagged and the start and finish times are detailed never less than one week before the day. To facilitate the Complainant (and possibly others) in the aftermath of the Complainant’s Grievance the Respondent has tried to put as much detail on the Board as possible though MsNS conceded that the best reference was the App which was used by 98% of the workforce. Anything else is a bespoke arrangement. I have noted that the Complainant gave evidence of a failure by the company to notify the Complainant of his start time on a Bank Holiday Monday by the previous Thursday. The Complainant had to communicate with the Respondent to find his start time and this happened in his free time over the weekend. This was the only specific account detailed in evidence and at that I do not even have the correct date for same. Other than that, the information was always available, but the Complainant objects to having to actively seek the information out, rather than the information being available on the board at all times. On balance, I find the Complainant’s complaint of a contravention of the specifics not to be well founded. There is a general grievance as to whether or not an employee should download an App but that has nothing to do with the Employer’s obligation to make start and finish times known at least 24 hours in advance of a working day. I am satisfied that the Employer satisfies this obligation.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00039029-001 The complaint herein is not well founded. |
Dated: July 26th 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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