Complainant

Respondent

Anonymised Parties

 Truck Driver

Logistics Company

Representatives

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032731-001

04/12/2019

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

CA-00032731-002

04/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032732-001

04/12/2019

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

CA-00032732-002

04/12/2019

The complainant was employed by the respondent as a truck driver from the 2nd January 2019 until the 18th October 2019 when his employment was terminated. He said that he was paid €650 and worked up to 50 hours per week. He is claiming an entitlement to notice under the Minimum Notice and Terms of Employment Act, 1973 and a breach of the Organisation of Working Time Act, 1997 in relation to the number of hours worked.

The Complainant said that he worked as a truck driver and on Friday the 18th of October 2019 after he finished work he was told by the Respondent that his contract of employment was being terminated.  He was told that there was no job for him and he was asked to return his fuel card. He is seeking payment for the notice period.

The Complainant states that he was required to work more than 50 hours per week. He had an agreement with the employer that any hours worked over 50 that he would get overtime in the form of an additional paid day off.  He said that the Respondent failed to pay him or grant the time off.

The Respondent did not attend the hearing on either date the case was listed. 

 CA-00032731-001   Minimum Notice & Terms of Employment Act, 1973

I note that the Complainant was dismissed without notice. I find that the Respondent contravened Section 4 of the Minimum Notice and Terms of Employment Act 1973 and that the Complainant is entitled to one week’s pay for the statutory notice period.

CA-00032731-002 Organisation of Working Time Act, 1997

The Complainant is claiming that the Respondent breached the Act and required him to work more than 50 hours per week.

The Organisation of Working Time Act 1997 provides

“Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

The Labour Court in the case of Svoboda v IBM Ireland DWT0818 stated in relation to the above cited section: 

“It is noteworthy that the section provides that an employer shall not “permit” an employee to work in excess of 48 hours per week. The obligation created by the Act is, therefore, directed at preventing an employee from working excessive hours and not merely at prohibiting an employer from instructing or requiring an employee to work more than the permitted hours. It further appears from the language of the Section that it imposes a form of strict liability (it does not provide that an employer may not knowingly permit). This construction of the Section is consistent with the object pursued by Directive 93/104/EC, which the Act transposed in to Irish law. That objective, as stated in Article 1 of the Directive, is to lay down minimum safety and health requirements for the protection of those at work.”

Therefore, there is a strict onus on an employer to ensure that the provisions of section 15 are complied with. I note that the complainant said that his contract provided that he worked 50 hours per week and his evidence is that he worked on average 52 hours per week. I am satisfied from the documentation produced by the Complainant that he worked more than 48 hours per week for the whole of the period he was employed.  I am satisfied that the Complainants was required to work hours more than 48 hours per week and this is a breach of Section 15 of the Act. I find therefore that the complaint is well founded.

Having regard to the seriousness of the breach of the Act, an award of compensation to the Complainant in the amount of €5,200 is just and equitable in the circumstances

CA-00032731-001

I find that the Respondent was in contravention of Section 4(2) of the Act by the failure to give notice.  I award the complainant compensation in the amount of €650.00 pursuant to Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

CA-00032731-002

I find that the complaint is well founded, and I award the Complainant compensation in the amount of €5,200 pursuant to Section 27(3) of the Organisation of Working Time Act, 1997 

 Minimum Notice & Terms of Employment Act, 1973 – Notice, Organisation of Working Time Act, 1997 - Section 15 working more than 48 hours per week