ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027519

Parties:

	Complainant	Respondent
Anonymised Parties	A Truck Driver	A Logistics Company

Representatives

Richard Grogan & Associates

Warren Parkes

Complaints:

Act	Complaint 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-00035280-001	16/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035280-002	16/03/2020
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-00035280-003	16/03/2020
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-00035280-004	16/03/2020
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-00035280-005	16/03/2020
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-00035280-006	16/03/2020
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-00035280-007	16/03/2020
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-00035280-008	16/03/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035280-009	09/04/2020

Date of Adjudication Hearing: 05/11/2020

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me by means of a Remote hearing and to present to me any evidence relevant to the complaints.

Background:

The Complainant, a Truck Driver, lodged 8 complaints regarding terms of employment and working time on 16 March 2020. Some three weeks later, he supplemented these complaints with a further complaint of penalisation in accordance with the Organisation of Working Time Act, 1997. All claims were amalgamated under a unitary Adjudication file and the contents of this file were shared with the respondent, a Logistics company.

The Complainant was legally represented, and a written submission was filed in advance of the remote hearing.

The Respondent, also represented legally, took issue with the paucity of associated with the claim.

The Complainant submitted that they had been denied information from the respondent which impeded the population of detail on the complaint form.

To assist in my Inquiry, I made a formal request of the parties for the following documents at the end of the hearing.

1. Staff Handbook

2.Complainant’s emails which raised issues and went unanswered.

3 Invitation to August 8 Meeting / Minutes

4 The Complainant representative agreed to particularise the claims under Working Time and to enumerate the cognisable period in the 5 complaints.

I received a supplementary submission from the complainant’s representative which was copied to the respondent. On January 14, the respondent was invited to make a submission in response and undertook to do so. I note from the electronic file that the respondent reply was received in January and was uploaded in March 2021. The Complainant did not furnish a response to this document.

I have not received the requested on the claims under Organisation of Working Time Act.

I have now closed my inquiry and have moved to decision in the case. I apologise to the parties for the delay in this decision.

It is important for me to reflect that I have considered information submitted post hearing which was solely related to my request for documents outlined above.

The parties were not requested to make further submissions on the claim for penalisation, as a full opportunity was provided to address this claim at hearing.

Summary of Complainant’s Case:

The Complainant has been a Truck Driver at the Respondent Logistics business since April 2016. He continues in this employment at an average of 55 hours per week in return for gross pay of €570.00 per week.

The Complainant’s post hearing submission restated what was previously set out on the pre-hearing written submission. The Complainant’s representative reaffirmed that requests for records had not been met by the respondent. She clarified that the time reference in claims under working time were 6 months prior to submission of the claim.

CA-00035280-001 Terms of Employment Information Act, 1994

The Complainant’s representative outlined that the Statement of Terms and Conditions of Employment dated 26 May 2016 did not comply with Section 3 of the Terms of Employment (Information) Act 1994.

1. The contract made specific reference to the Organisation of Working time (Exemption of Transport activities) Regulations, 1998 and Tachograph Regulation (EC) No S61/2006 yet has not attached these Regulations or advised the complainant where he might find a copy.

2. The contract did not make provision for the terms of Section 3(g)(ga).

3. The contract is silent on the topic of pensions and deviated from the statutory leave year of April 1to March 31 annually.

The Complainant’s representative outlined that the contract of employment submitted had not been signed by either party. Efforts to receive information through a Data Access request had gone unanswered.

The Complainant relied on Beechfield Private Home Care ltd and Megan Kelly Hayes TED 1919

The complainant confirmed that he had not discussed these omissions in the early days of his employment. He confirmed that he had started to raise issues in March 2020 and undertook to submit the email to that effect.

The Complainant submitted a copy of an email dated January 22, 2020, which referred to an earlier meeting of September 3,2019 on being asked to work more than contracted hours.

CA-00035280-002 Section 17, Organisation of Working Time Act, 1997

The complaint lodged on 16 March 2020 was not particularised apart from a brief reference to section 17.

The complaint detail was expanded on by way of written submission in advance of the hearing. The complainant contends that he is not receiving adequate rest breaks, which is a contravention of Section 8(1) of SI.36/2012 The contract did not set out start/finish times outside of a mention of “up to 48 hours “per week.

The Complainant submitted that the contract came in within the remit of Section 1 of the Regulations and should be provided with 24 hrs notice of working time. Transport ltd v Serenas DWT 141/2013.

The Complainant submitted that notification of start and finish times were provided by email on the night before the journey for the past couple of years.

The Complainant’s representative subsequently exhibited a document referred to as: “Start time being the time the card was put into the tachograph and finish being the time it was taken “Feb3-28, 2020 and 1-27 July 2020.

CA-00035280-003 Section 12, SI 36/2012, Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he did not receive breaks at work. By way of written submission, this was clarified as “the complainant contends that he is not receiving his adequate rest breaks “

The Complainant’s representative submitted that the complainant’s capacity to particularise the claim had been hampered by the respondent’s refusal to issue records in line with Regulation 12.

The Complainant submitted that he worked spans of duty of 10-13 hours without a break and that the burden rested on the employer to produce records in response to the claim.

The claim was not particularised. The complainant submitted that he had raised his concerns to the Compliance Manager on two occasions at the start of the year, without response.

During cross examination, the complainant clarified that he had raised the issue on 22 January 2020, without receiving a response.

He did not respond to the respondent’s question surrounding the Tachograph flagging when a break should occur.

The complainant had expected to receive a response from his data access request from 18 March to assist in populating the complaint. He was unable to pinpoint dates for the contended breaches of the Legislation.

CA-00035280-004, Maximum Hours, Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he was required to work more than the maximum permitted number of hours. He cited 48 hrs as his hours of work for the work reference period. The reference period referred to January 2020 -February 2020 where he stated that he worked 51-60 hrs and was not paid for hours worked over 48 hours per week.

The Complainant submitted that he had raised the issue several times.

During cross examination, the complainant answered the respondent’s representative questions on recognising the classification of “availability “under the Regulations and that his mode switch ought to be marked at “other work” The Complainant agreed that he had not selected this option as he had not been instructed in this procedure. He stated that he did press the “mode switch”

The Complainant confirmed that this was a long-standing breach over a 3-year period and caused him to work 51-60 hours every week, where overtime was unpaid.

CA-00035280-005, Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he was required to work more than the maximum permitted number of hours. He cited 48 hrs as his hours of work for the work reference period. The reference period referred to December 2019- January 2020, where he stated that he worked 51-60 hrs.

CA-00035280-006. Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he was required to work more than the maximum permitted number of hours. He cited 48 hrs as his hours of work for the work reference period. The reference period referred to November 2019- December 2019, where he stated that he worked 51-60 hrs.

CA-000035280-007 Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he was required to work more than the maximum permitted number of hours. He cited 48 hrs as his hours of work for the work reference period. The reference period referred to October 2019- November 2019, where he stated that he worked 51-60 hrs.

CA-00035280-008 Regulation 18 EC Regulation, 2012, SI 36/2012

The Complainant submitted that he had not been notified of the working hours regulations applying to the road transport sector.

CA-00035280-009 Penalisation, Organisation of Working Time Act, 1997

The Complainant submitted a claim for penalisation 3 weeks following the above complaints. He submitted that he had attended a meeting where he faced queries on working time followed by an application of a verbal warning. He attributed these actions to his having raised issues about his working time.

Complainant Evidence:

On April 8, 2020, the complainant was contacted by Bookings to attend a meeting set for the next day. The Complainant queried the purpose of the meeting and Mr A told him that it was to be a “General Meeting on odds and ends “to clear up a few matters.

The next day, the complainant met with Mr A, and Mr B and asked to account for an alleged 15-20 minutes ascribed to a late delivery. The Complainant was shocked as he had not been addressed on such matters previously. He felt intimidated and thought that it was “possibly “due to lodging a case before the WRC.

He was informed that the Truck was not making money. The Complainant knew this was not his responsibility and countered this assertion. He received a verbal warning, which was not committed to writing.

In cross examination, the complainant reaffirmed that he had not been called to a meeting with Management previously during his employment and then qualified this by mentioning an earlier meeting on starting hours.

The Complainant accepted that he had been 20 minutes late and this had been his first disciplinary sanction

The Complainant confirmed that he had engaged in 3 meetings with his employer during 2020.

Summary of Respondent’s Case:

The Respondent operates a Logistics Company. The respondent representative presented orally but was unable to secure a visual connection.

CA-00035280-001 Terms of Employment Information Act, 1994

The Respondent submitted that the Complainant was an experienced HGV driver. The Staff Handbook, EU Regulations and details of Statutory Instrument SI 36/2012 were available to the Complainant in the Respondent Office, which the complainant attended daily.

The Respondent representative confirmed that details of the leave year were omitted from the contract, which was not an unusual omission and made no difference in practical terms and at most amounted to a technical breach. He confirmed that details of Pension were incorporated in section 12.1 of the staff handbook.

The Complainant had not raised any of these issues within the workplace.

CA-00035280-002 Section 17, Organisation of Working Time Act, 1997

The Respondent witness, Mr B, submitted that the complainant had informed that company a year previously that he was unable to start work before 7.30 am. The Business had 100 workers and a Roster was not in operation.

The Respondent took issue with the complainant’s submission. During cross examination, the respondent contended that the complainant had amended his start time to 7.30 am and he held the data to print out and submit.

In response to the complainant’s post hearing tachograph log, the Respondent submitted that the “mode switch “designates activity undertaken.

The Tachograph records generated by the Driver are the only source of driver information available. The respondent submitted that these records form the respondent records. The Complainant had confirmed that he had not operated the mode switch correctly.

The Respondent could not be held responsible for his omission in that regard.

CA-00035280-003 Regulation 12 EC Regulation, 2012, SI 36/2012

The Respondent disputed the claim. In cross examination, the complainant confirmed that he could not attribute dates to the submitted breaches. He confirmed that he had raised the matter of breaks with a company compliance manager on 22 January without response.

Post hearing and in response to the complainant’s post hearing submission, the respondent exhibited driving, working and resting records for the months of February 2020, March, July and August 2020, which reflected a populated column on time spent on each activity.

The Respondent contended that the complainant availed of rest periods at work and his failure to operate the “mode switch “accurately compromised the respondent capacity to rely on accurate records under the 2012 Regulations.

CA-00035280-004, Maximum Hours, Regulation 18 EC Regulation, 2012, SI 36/2012

The Respondent disputed the claim and contended that the claims as submitted were insufficiently particularised. The Respondent contended that the complainant had failed to operate the” mode switch” properly and had not selected “periods of availability “thus working time records were distorted and inaccurate.

In response to the complainant’s post hearing submission, the respondent submitted that the complainant’s reliance on the category of “total hours” did not provide any form of designated sub categories of the hours recorded. This could have been sourced on the complainant’s RSA Driver card.

Subcategories of Period of availability, Break and other work are meant to be recorded by the driver as a distinction from Driving Time.

It was the respondent case that the complainant had not distinguished the different classifications and consequently, he had over calculated his perceived working time.

CA-00035280-005, Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

In response to the complainant’s post hearing submission, the respondent submitted that the complainant’s reliance on the category of “total hours” did not provide any form of designated subcategories of the hours recorded. This could have been sourced on the complainant’s RSA Driver card.

Subcategories of Period of availability, Break and other work are meant to be recorded by the driver as a distinction from Driving Time.

It was the respondent case that the complainant had not distinguished the different classifications and consequently, he had over calculated his perceived working time.

CA-00035280-006, Maximum Hours, Regulation 18 EC Regulation, 2012, SI 36/2012

Subcategories of Period of availability, Break and other work are meant to be recorded by the driver as a distinction from Driving Time.

It was the respondent case that the complainant had not distinguished the different classifications and consequently, he had over calculated his perceived working time.

CA-000035280-007 Maximum Hours, Regulation 18 EC Regulation, 2012, SI 36/2012

In response to the complainant’s post hearing submission, the respondent submitted that the complainant’s reliance on the category of “total hours” did not provide any form of designated subcategories of the hours recorded. This could have been sourced on the complainant’s RSA Driver card.

Subcategories of Period of availability, Break and other work are meant to be recorded by the driver as a distinction from Driving Time.

It was the respondent case that the complainant had not distinguished the different classifications and consequently, he had over calculated his perceived working time.

CA-00035280-008, Notification of Provisions, Regulation 18 EC Regulation, 2012, SI 36/2012

The Respondent disputed the claim and submitted that details of the Regulations were available at the Business Office.

CA-00035280-009 Penalisation, Organisation of Working Time Act, 1997

The Respondent disputed the claim for Penalisation. The Respondent had not engaged the Disciplinary procedure against the complainant. They had sought to engage him on operational, compliance and productivity matters not disciplinary.

Evidence of Mr A, newly appointed Human Resource Manager

Mr A was newly appointed and was unaware of the WRC complaints when he met with the complainant on 9 April. He understood that he was to investigate a 30-minute delay attributed to the complainant by his line manager. His objective was to compile a report to that end and explained this to the complainant, who did not advance a reason for the lateness of delivery.

Mr A denied that the Disciplinary procedure had been invoked or that a verbal warning had applied.

The Complainant’s representative did not avail of the opportunity for cross examination. She sought the minutes of the meeting referred to on April 9.

Post hearing, the Respondent submitted a copy of an invitation to a meeting dated 8 April 2020 and two emails exchanged between the complainant and Mr A. I did not receive minutes of the meeting or an investigation report.

Findings and Conclusions:

I have considered all claims before me. I have considered all written submissions and all evidence adduced.

From an early stage, I identified that there was a lack of precision in the framing of the complaints and indeed in the respondent’s response. I have endeavoured to clarify each of the parties claims and the respondent responses. However, it is clear to me that a particularly strained and sensitive employment relationship is on show here.

I have taken from the post hearing submissions items which I delineated earlier. I have not received the staff handbook as requested.

CA-00035280-001 Terms of Employment Information Act, 1994

The Complainant submitted that he had not received a statement in writing on his terms of employment. The unsigned contract of employment was appended to the complainant’s submission.

My jurisdiction in this case falls under Section 7 of the Act.

I have considered the provisions of Section 3 of the Act and I have cross matched the provisions of this section against the submitted unsigned contract of employment, which was submitted as comprising the statement of terms of employment. The Respondent augmented this by reference to the staff handbook

EC Directive 91/533/EEC was adopted by the Council of the European Communities. Its obliged employers to inform employees of conditions applicable to the contract of employment or employment relationship. Because of the Directive, the Oireachtas enacted the Terms of employment (Information) Act 1994. It does not apply to employees with less than one month’s service.

The Act requires that a Statement is given to an employee within 2 months of employment, which contains certain provisions outlined in Section 3 of the Act.

The Terms of Employment (Additional Information )Order, SI 49/1998 also requires employers to furnish employees who have been in their employers continuous service for at least one month with statements in writing containing particulars of the times and duration of rest periods and breaks in Ss11-13 of the Organisation of Working Time Act 1997 that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks within 2 months after commencement of employment . I note that the Organisation of Working Time (Exemption of Transport Activities) Regulations 1998 prescribes that persons employed in transport activity shall be exempt from the application of Ss11, 12, 13, 15 and 16 of the Organisation of Working Time Act, 1997.

The Complainant is a Mobile Worker, in employment since April 2016. The unsigned statement of terms of employment /contract of employment is date as 26 May 2016. The Complainant confirmed at hearing that he had received the staff handbook. He did not advance in evidence and I did not receive the copy promised by the respondent post hearing.

My attention was drawn to Section 4 of this document on Hours of Work.

I noted that while the Respondent did not set out the rest periods outside of a broad reference to the Organisation of Working Time (Exemption of Transport Activities) Regulations, 1998 Tachograph Regulations and EU Regulation (EC)561/2006.

The Statement outlines that rest periods will be agreed with “your Manager in advance”. I found this to fall short of the obligations of an employer of a mobile worker on the provisions of the regulations.

I could not identify any reference to collective agreements or of a Registered Employment Agreement.

The RSA Guide to Directive 2002/15/EC contains a table on breaks and rest periods and is based on a consolidation of the combined regulations of the Regulations and those of Regulation (EC) 561/2006 as amended

1. 11 continuous hours of rest must be provided in every 24-hr period. This may be reduced to 9 hrs but no more than 3 times between 2 weekly rest periods.

2. 45 minutes break must be provided after 4.5 hours of driving

3. 30 minutes break must be provided after 6 hours of working, which can be split into two shorter breaks

4. 45 minutes break must be provided after 9 hours of working, which can be split into 3 shorter breaks

I accept that there was an omission in Section 3(1) (ga) of the Act. There was no reference to this obligatory provision.

gal) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’ s average hourly rate of pay for any pay reference period as provided in that section,

I also accept that the annual leave year was incorrectly recorded.

In all, I found four subsisting contraventions of the legislation in the omission to reference minimum wage, incorrect detail of annual year, reference to collective agreements/rea and omission to reference pension. See A Doctor v A Public Service Provider [2020]31 ELR 159

I have, as stated some concerns at the brevity of the detail and lack of precision on hours of work/rest periods. I have also found that the statement was not signed by the respondent.

I find that the claim is well founded.

CA-00035280-002 Section 17, Organisation of Working Time Act, 1997

I have considered each party stated and written position. The Complainant submitted that he has not been provided with start and finish times over a continuum. The Respondent disputes this and contended that the complainant did not cooperate with accurate records of time worked.

I did not receive records from either party on the email notification of shift start. The Complainant had told the hearing that his start time was notified the night before a trip.

Section 17 of the Act states

Provision of information in relation to working time.

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 subsection (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.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “ additional hours ”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be enough 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.

I noted that the Respondent did not operate a roster. The cognisable period for this claim is 17 September 2019 to 16 March 2020. I have no jurisdiction to address a continuum as advanced by the complainant. However, I accept that the contract is silent on start and finish times and in the absence of a roster, or copies of emails on start times, this is a difficult claim for me to inquire into

I have taken some guidance from the deliberations of the Labour Court in Musgrave Ltd and Roman Vasilijevs RTD 183,

The Court finds that a worker is entitled to 24 hours’ notice of their start and finish time to enable them to reconcile their work life commitments. A failure to provide such notice causes considerable inconvenience for workers who have other plans and commitments in their lives and undermines their capacity to function as full human beings in society. For that reason, such notice is designed to reconcile the needs of the both the business and workers in a fair and effective manner ……

In identifying a lack of precision in terms of start and finish time, the Court upheld the complaint in that case.

In this case, I am unclear why a roster was not operationalised for 100 workers. To me at least, it would seem an efficient time management system and would tie in with the recent observations in CJEU Grand Chamber in CCOO v Deutsche Bank SAE on recoding working time. I appreciate that this is a Mobile Transport work claim, but I cannot accept that the onus of responsibility for recording time worked can be invested solely in the worker. The Direction and Control of the operation in an Employer /Employee situation demands more than a laissez fair approach to records on start and finish times.

I find that the Respondent has failed to meet its statutory obligations on notification of start and finish times within the cognisable period of this claim.

I find the claim to be well founded.

CA-00035280-003 Regulation 12 EC Regulation, 2012, SI 36/2012

I have considered both parties stated positions. I have had regard for the Tachograph record submitted for month of February 2020, which falls within the cognisable period for this claim September 17, 2019 -March 16, 2020.

I have not received an email of 22 January to the Compliance Manager referred to in the complainant’s own evidence. Neither have I received a comprehensive record of rest breaks maintained by the Respondent which cover the cognisable period of the claim i.e. September 2019 -March 2020

I am disappointed that the assurances given by the complainant at hearing to particularise the claim has not yielded completion. I am also uncomfortable with the lack of concrete particularised detail in the complainant’s evidence. I note that the respondents slightly expanded details of breaks taken post hearing did not generate a response from the complainant.

Mobile Workers are obliged to take breaks and rest periods. The contract in this case states that the complainant’s breaks are to be agreed in advance with the Manager but is silent on the mechanism through which this is to be achieved. The complainant submitted that the contraventions occurred daily. I found some difficulty in this pronouncement.

A rest period is where the employee is permitted to pursue his own interests away from work.

The combined effect of the rules on the taking of breaks and rest periods, set out in the Regulations and those applicable to driving under the separate EU Regulations are as follows:

1 Continuous 11 hours of rest must be provided in every 24 period

2 45 minutes breaks after 4.5 hrs driving, divisible into two separate breaks.

3 30 minutes break after 6 hrs driving, divisible into two separate breaks

4 45 minutes after 9 hours driving, divisible into 3 breaks

An employer of mobile workers is required to maintain records which are adequate to show that the Regulations have been complied with and the records must be held for a minimum of 2 years post creation. They must be provided, on request, to the mobile worker to whom they relate.

Tachograph records are insufficient in that regard. Agreed time sheets would be the optimal record for this purpose.

The Complainant’s contracts suggests that failure to comply with rest breaks will prompt disciplinary action. Given this statement, I found it unusual that the respondent did not maintain records of breaks for the complainant within the cognisable period.

Section 12 of the Regulations place an obligation on an employer to maintain a record of the working pattern, request details of time worked for any other employer and top be ready to furnish those details to an employee when requested.

I heard from the complainant that he requested details under a data access rather than these specific regulations. However, I have not seen a copy of this request.

I find on the balance of probability that the complainant availed of some rest periods but there was a short coming on provision of the breaks as detailed in the contract. In addition, I found that the respondent has not complied with their obligation on records and I am not persuaded by the argument advanced on the” mode switch” on this occasion.

Provision of breaks is a statutory duty and important for public safety. I would have liked to see a lot more transparency and precision from both parties on this claim.

I find the claim well founded in part.

CA-00035280-004, Maximum Hours January – February 2020, Regulation 18 EC Regulation, 2012, SI 36/2012

I have carefully considered both parties stated and written outlined positions. The Complainant has not particularised the claim outside a statement that he worked 51 to 60 hours a week between January and February 2020. This is disputed by the Respondent, who has not furnished comprehensive records governing this period.

This makes it difficult for me to inquire into the facts of the case.

The rules on determining what constitutes working time for the Regulations differs from the Organisation of Working Time Act.

Working Time is the time from beginning to the end of the week during which the mobile worker is at their workstation, available to their employer and carrying out road transport functions or other activity. Road transport functions include

Driving

Loading and Unloading

Passenger Assistance

Cleaning and Maintenance

Work on safety of vehicle, cargo, passengers

Administration

Time spent on other activities includes

Time during which the mobile worker cannot use their time freely and must be at their work station ready to take up normal work

Waiting Periods, duration unknown in advance

Working time in the context of the Regulations does not include:

Routine Travel home and normal place of work

Rest breaks where no work is performed

Periods of availability.

Under the Regulations, a period of availability is a period of waiting time the duration of which is known in advance egg travelling on ferries, delays in loading and unloading, known in advance.

A mobile worker cannot work for more than an average of 48 hrs per week over a reference period. While working hours can be averaged over the reference period, a mobile worker is not permitted to work more than 60 hours in any one week.

A reference period must be determined in advance and its duration must be known by both employer and the mobile worker. There are 3 options which can be availed of by agreement 17 successive weeks, 26 successive weeks or a rolling 26 weeks. In default of agreement, the Regulations provide for 3 reference periods

1 January to 1 May, 1 May to 1 September, 1 Sept to 1 January.

Time away from employment on annual leave, sick leave and carers leave are excluded. If work is undertaken for another employer, the worker is obliged to inform the employer of times worked in that case.

I could not obtain any from the complainant in respect of the contended breaches. I have not seen the request to obtain data in support of this claim. I presume that the request was not made in accordance with the provisions of the 2012 Regulations.

In Vasilyeva, the Court examined records adduced by the Respondent and the Complainant did not identify any shortcomings.

In the instant case, I have some scant records covering a segment of the month of February 2020 which are not linked to any agreed or default reference period mechanism in accordance with the provisions of the Regulations.

I could sense that the complainant was aggrieved that he was working over 48 hours without attracting an overtime payment.

I would urge the parties to engage in a meaningful way on this unique aspect of the Regulations locally, to ensure the complainant’s comprehension on what is a very complex aspect of the Regulations, which require his full cooperation.

Based on the information before me, I find the claim to be not well founded.

CA-00035280-005 Maximum Hours, December 2019 -January 2020 Regulation 18 EC Regulation, 2012, SI 36/2012

I have had regard for both parties stated and written outlined positions. I have not received any on this claim. I cannot establish a linkage to any agreed or default reference period mechanism in accordance with the provisions of the Regulations.

I would urge the parties to engage on this unique aspect of the Regulations locally to ensure the complainant’s comprehension on what is a very complex aspect of the Regulations, which requires his full cooperation.

Based on the information before me, I find the claim to be not well founded.

CA-00035280-006, Maximum Hours, November 2019 to December 2019. Regulation 18 EC Regulation, 2012, SI 36/2012

Based on the information before me, I find the claim to be not well founded.

CA-000035280-007. Maximum Hours, October 2019 – November 2019 Regulation 18 EC Regulation, 2012, SI 36/2012

Based on the information before me, I find the claim to be not well founded.

CA-00035280-008 Notification of Working Hours Regulations, Regulation 18 EC Regulation, 2012, SI 36/2012

I have considered both parties stated and written outline positions. I have also had regard for the unsigned contract of employment which references the Regulations, S. I 36/2012.

Section 11 of the Regulations

An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.

The Respondent has not exhibited a copy of the Regulations outside a cross reference in the contract of employment. As already stated, there are several nuanced points to arriving at an accurate interpretation of these Regulations.

In my opinion, it is vital that both parties to this case have a shared understanding of just how these Regulations are applied in the everyday workplace. Given, the solitariness and self-determinacy of driving for a living, it may have assisted the parties to engaged in this exercise before now.

I find that the reference to the Regulations in the contract followed by a reference to their being present in the Office is insufficient “to notification of the provisions of these Regulations “to comply with the Employers obligations under Regulation 11 of SI 36/2012.

I find the claim is well founded. The Respondent has presided over a continuous breach of Regulation 11.

CA-00035280-009 Penalisation, Organisation of Working Time Act, 1997

The Complainant submitted that he had been penalised by the respondent following the submission of his earlier complaints of March 16, 2020. He submitted that he had been brought into a meeting with the respondent, questioned on working time records and then given a written warning.

This complaint was received by the WRC at 17.37 hrs on 9 April 2020.

I have considered both parties written and oral submissions. I have considered the complainant’s evidence on cross examination and noted that the complainant representative did not cross examine Mr A, the respondent witness.

My attention was drawn to the time frame around this complaint. On Wednesday, April 8, 2020, the Respondent issued an emboldened invitation in capital letters to the complainant which stated:

“You are required for a Meeting in X location @8.15am Thursday “This was accompanied by some logistical detail.

The Complainant responded by email at 16.22 hrs that day

“Please state what the meeting is regarding please “

Curiously, this response was forwarded to 8 recipients within the company. I have already referred to this employment relationship as frail. However, for me the broad and global sharing of an email response to Mr A, whom he had not met previously suggested a defensive action by the complainant.

Some 4 minutes later, Mr A responded:

“Just a routine meeting re compliance and productivity. Look forward to meeting you “

The Complainant wanted me to hear that he had raised several issues on his working time and had gone unheeded prior to this engagement.

I asked for any documentation to support that submission and received a short email dated 22 January 2020 which referred to an earlier meeting on 3 September 2019 on extra contractual working, which had not been responded to and ended with “I am now treating this as a serious matter “

I could not establish any other remnant of interparty communication or activation of a Grievance procedure on working time.

I have some reservations on the curt invitation dated 8 April. I can appreciate that the complainant, already present in a frail employment relationship may well have been nervous to receive an invitation to discuss an aspect of his employment.

However, the respondent had been notified of the WRC claim on 20 March 2020. I accept Mr as evidence that he was not aware of the existence of the claims on the 9 April. However, I had some reservations regarding the lack of either an investigative report or minutes which survived this meeting. This void suggests a lapse in transparency, however the claim cites penalisation in the form of a verbal warning.

The Law on Penalisation is set out in section 26 of the Act.

Refusal by an employee to co-operate with employer in breaching Act.

26. (1) An employer shall not penalise or threaten penalisation of an employee for —

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

…………

(5) In this section ‘penalisation’ means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes —

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

In UCC v Keohane DWT 47/2001, the Labour Court held that the onus was on the complainant to establish a causal link between her activities in seeking Section 19 applied and some detriment which she suffered.

When an employee, who is rostered to work in excess of the 48 hours prescribed by s.15, requests his or her employer not to exceed that limit and is then compulsorily transferred to a different post with fewer hours but with lower pay, the Court of Justice has ruled that this subjected the employee to a “detriment” since the effect of the transfer deprived of all substance the right to a maximum working week of 48 hours: see Case C-243/09, Fuss v Stadt Halle [2010] E.C.R. 1-9849 and Case C-429/09, Fuss v Stadt Halle (No. 2) [2010] E.C.R. 1-12167.

In the instant case, I have established that the complainant was present in a frail employment relationship. I have also identified that he had not formalised his dissatisfaction through the company grievance procedure prior to his referral of claims to the WRC on 16 March and 9 April 2020.

I accept that the Respondent sought to engage with the complainant on an operational matter on 9 April 2020, however, I cannot, on the balance of probabilities, and on consideration of Mr A’s evidence, which went untested by the complainant, accept that a verbal warning issued on that day.

I accept that the complainant felt vulnerable in the workplace, however, he does not appear to have offered an explanation to Mr A for the late delivery, the stated objective of the meeting of 9 April.

However, I also accept that the complainant had enough tenure in and awareness of the workplace to mount a local appeal if he had received such a sanction. He told the hearing that he had not appealed the warning. I was surprised by that and must conclude that the warning did not occur in the way the complainant interpreted.

I found the rush to augment this claim to the 16 March 2020 claims to be precipitous by the complainant.

I have not identified that he suffered a detriment because of raising concerns about his contracted hours or ventilating his claims under the Organisation of Working Time Act.

I find the claim of Penalisation is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Regulation 18 of the European Communities (Road Transport) Organisation of Working Time of Persons performing Mobile Road Transport Activities Regulations 2012 SI 36/2012

CA-00035280-001 Terms of Employment Information Act, 1994

In accordance with Section 7 of the Act, I have found the claim well founded and have identified several subsisting breaches of Section 3, as highlighted above.

In accordance with Section 7(2) (c) of the Act and considering the clear frailty of the employment relationship, I find that it is for me to direct the respondent to issue a written statement to augment the statement issued in May 2016 to the complainant which includes the following:

1. Section 3(1)(i) an expansive statement on rest and break times in accordance with EC Regulation 561/2006

2. Section 3(1) (ga) a statement on the national minimum wage

3. Section 3(1) (f) a statement on annual leave year

4. Section 3(1) (k) a statement on pension

5 Section 3(1) (fa)(m) statement on collective agreements/registered employment agreements, if any.

I appreciate that some of these matters may have bi located within the business/staff handbook, for the purposes of this employment, I believe it prudent to have them all incorporated with the statement first issued in May 2016.

CA-00035280-002 Section 17, Organisation of Working Time Act, 1997

I find the claim is well founded. In accordance with my powers under Section 27 of the Act, I order the Respondent to comply with the terms of Section 17 of the Act on start and finish times. I also award €600.00 in compensation for the contravention of Section 17.

CA-00035280-003 Section 12, SI 36/2012, Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim well founded in part, within the cognisable period of 6 months preceding submission of the complainant. I order the Respondent to pay the complainant €600.00 in respect of the contravention of Regulation 12 of the Regulations of 2012 and comply with the statutory obligation to maintain records of working pattern.

CA-00035280-004, Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim not well founded

CA-00035280-005 Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim not well founded

CA-00035280-006 Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim not well founded

CA-000035280-007 Maximum Hours Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim not well founded

CA-00035280-008, Notification of Working Hours, Regulation 18 EC Regulation, 2012, SI 36/2012

I have found the claim well founded. I order the Respondent to comply with the terms of Regulation 11 within 4 weeks of this Decision.

CA-00035280-009 Penalisation, Organisation of Working Time Act, 1997

In accordance with section 27 of the Act, I find the claim for Penalisation to be not well founded.

Dated: 16th June 2021

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Statement of Terms of Employment Start and Finish times, Rest Breaks, Maximum Hours, Notification of Regulations, Penalisation