Complainant

Respondent

Parties

Petras  Norkus

M + G International Haulage Limited

Representatives

Richard Grogan, Richard Grogan & Associates

Warren Parkes, Warren Parkes Solicitors

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-00038296-001

22/06/2020

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

CA-00038296-002

22/06/2020

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

CA-00038296-003

22/06/2020

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

CA-00038296-004

22/06/2020

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

CA-00038296-005

22/06/2020

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-00038296-006

22/06/2020

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-00038296-007

22/06/2020

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

CA-00038296-008

22/06/2020

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

CA-00038296-009

22/06/2020

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

CA-00038296-010

22/06/2020

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-00038613-001

07/07/2020

The Complainant was employed from 18th June 2018 until 21st February 2020 as an international truck driver. The Respondent is an international haulage company.

The Complaint as submitted by the Complainant’s representative consists of eleven individual complaint, these are as follows:

CA – 00038296 – 001 – complaint submitted under s.7 of the Terms of Employment (Information) Act, 1994. Complaint reads “Did not receive a document that complies with section 3”.

CA – 00038296 – 002 – complaint submitted under s.27 of the Organisation of Working Time Act, 1997. Complaint reads “No Sunday premium of proper Sunday premium”.

CA – 00038296 – 003 - complaint submitted under s.27 of the Organisation of Working Time Act, complaint reads “Not notified of hours under section 17 at least 24 hours in advance”

CA – 00038296 – 004 - complaint submitted under s.27 of the Organisation of Working Time Act. Complaint reads, “I do not get weekly rest periods “.

CA – 00038296 – 005 – complaint submitted under S.I.36 OF 2012 – European Communities (Road Transport) (Organisation of Working Time of persons performing mobile road transport activities) Regulations 2012. Complaint reads “I do not get weekly rest periods”.

CA – 00038296 – 006 – complaint submitted under regulation 18 ofS.I.36 OF 2012 – European Communities (Road Transport) (Organisation of Working Time of persons performing mobile road transport activities) Regulations 2012. Complaint reads as follows: “I was not notified of the working hours regulations applying to the road transport industry”

CA – 00038296 – 007 - complaint submitted under regulation 18 ofS.I.36 OF 2012 – European Communities (Road Transport) (Organisation of Working Time of persons performing mobile road transport activities) Regulations 2012. Complaint reads “I am required to work more than the maximum permitted number of hours” Reference period September to December 2019.

CA – 00038296 – 008 – complaint submitted under s.27 of the Organisation of Working Time Act,1997. Complaint reads “I have not received my Public Holiday entitlements”.

CA – 00038296 – 009 - complaint submitted under s.27 of the Organisation of Working Time Act,1997. Complaint reads as follows: “I did not receive my paid holiday /annual leave entitlement “ and “I was not paid in advance of receiving annual leave contrary to section 20(2)(a)”.

CA – 00038296 – 010 - complaint submitted under s.27 of the Organisation of Working Time Act,1997. Complaint reads as follows: “I have not received my Public Holiday entitlements contrary to section21 of the Act”.

CA – 00038613 – 001 - complaint submitted under regulation 18 ofS.I.36 OF 2012 – European Communities (Road Transport) (Organisation of Working Time of persons performing mobile road transport activities) Regulations 2012. Complaint reads “My employer will not provide records when requested”

This complaint was received by the Workplace Relations Commission on 22nd June 2020.

At the commencement of the hearing I verbally summarised the Supreme Court judgement in the Zalewski case to the parties. (Ref – [2021] IESC  24). Both parties agreed that the hearing could proceed.

Terms of Employment (Information) Act, 1994.

The employee did not receive a contract of employment containing the statement of particulars of employment as outlined in the Act.

Organisation of Working Time Act, 1997 – Sunday premiums.

The claim was submitted on 22nd June 2020, the cognizable period is therefore 22nd December 2019 to 22nd June 2020. The employee worked on 19th and 26th January 2020 and the 2nd, 9th and 16th February which were Sundays. The employment ended on 21st February 2020.

Organisation of Working Time Act, 1997 – Section 17. 

The Complainant contends that the Respondent failed to provide a minimum of 24 hours’ notice in relation to the Complainant’s working hours.   The Complainant had requested working time records but the Respondent failed to furnish same.  

 Organisation of Working Time Act, 1997 – Weekly rest periods.

The employee is entitled to a weekly rest period of 35 hours every 7 days. For the period from 18th to the 29th January the employee was consistently at work. From 1st to the 21st February he was working every day.

Organisation of Working Time Act, 1997 – Section 17 – the requirement to work overtime.

The circumstances in the instant case are materially different to the authorities quoted by the Complainant. In the instant case the Complainant’s contract did not specify a starting or finishing time. The Complainant did not control or influence his starting or finishing time. While those times may have been influenced by the exigencies of the business, they were nonetheless determined by the Respondent except in the circumstances referred to at subsection (4) of Section 17 of the Act (which are not relevant in this case) the Section does not provide an exemption from the requirements as to notification based on the general exigencies of a business.

Where an employee has no set starting and finishing time the employer must notify the employee at least 24 hours in advance of the start and finishing time.

Unforeseen circumstances

Subsection (4) provides an exception for an employer where due to circumstances “which could notreasonably be foreseen” then 24 hours’ notice is not required.  The exigencies of the business are not sufficient as held in Nurendale Limited t/a Panda Waste and Suvac DWT1419. Equally in Scally and Lynch and Kelly DWT13102, the employer sought to rely on subsection (4) where the employees would be required to work overtime due to the arrival of a large number of customers following a football match or concert.  The Labour Court held that in running an Apple Green Service Station the Court could not accept that the occurrence of exceptional demands on the business due to a match or concert was an unforeseeable event as contemplated by this Section.

It is not sufficient for an employer to simply contend there were exceptional circumstances without proving these on a case by case basis.  In Stobart (Ireland) Driver Services Limited and MichaelO’Riordan DWT12170, the Court stated “…. The Respondent said that it did not remember the circumstances which prevailed at the time ….” The Court held against the Employer.

In Lucey Transport Limited and Serenas DWT1398 the Labour Court held;

“In any event, it is for the employer who seeks to rely on the subsection to establish on cogent evidence what the intervening events actually were on the basis upon which it was contended that they were unforeseen”.

Conclusion

The defence of the exigencies of the business regularly arises.  Unless the employer can come within the provisions of the exemption in Section 5 or in subsection (4) of Section 17 then the exigencies of the business are irrelevant.  If an employer is going to rely on subsection (4) then cogent evidence will be required by the employer to prove same on each occasion that this arose.  This does require maintaining records. 

SI 36 OF 2012.

The employee was not advised of the provisions of this statutory instrument. This requirement to notify the employee in writing set out in Regulation 11 of the statutory instrument.

Excessive hours of work.

The employee has requested particulars covering the period from September to December 2019.

This is within the control of the employer as regards the records and the relevant reference periods are from the 1st September to the 31st December and the employee issued the proceedings on 22nd June, this brings matters back to 22nd December and therefore the calculation of the 48-hour average takes place on 31st December, so the employee is on time and the burden of proof is on the employer. In MDS Distributions Ltd v Grabowy RT0153 the Labour Court held that a claim under Regulation 5 (1)(b) ran from the end of the period.

Public Holiday entitlements.

The employee would have been entitled to be paid for 1st January and 25th December that could not be considered as part of his annual leave.

Annual Leave.

The employee was not paid his annual leave in advance. This is a matter for the employer to prove.

The Representative for the Respondent informed the hearing that he had just come on notice and did not have a submission prepared. He did say that from what he knew of the complaints the Respondent did comply with legislation and would present a defence against the various complaints.

Having consulted with the representative for the Complainant the Respondent representative was given two weeks to submit a submission outlining the Respondent’s position in relation to the complaints. The representative for the Complainant was then given a further two weeks to reply.

CA – 00038296 – 001 – I order the Respondent to pay compensation of 2 weeks pay to the Complainant for the breach of this legislation. This amounts to a net payment of €800.

CA – 00038296 – 002 – The complainant worked on 6 Sundays during the cognizable period. I now order the Respondent to pay the complainant compensation of €210 net, this figure represents a premium of 25%.

CA – 00038296 – 003 - I order the Respondent to pay compensation of 2 weeks’ pay to the Complainant for the breach of this legislation. This amounts to a net payment of €800.

CA – 00038296 – 004 – I order the Respondent to pay compensation of €2,400 net to the Complainant for this breach of legislation.

CA – 00038296 – 005 – no award made. (similar to CA – 00038296 – 004)

CA – 00038296 – 006 - I order the Respondent to pay compensation of 2 weeks’ pay to the Complainant for the breach of this legislation. This amounts to a net payment of €800.

CA – 00038296 – 007 – no award made (duplicate of CA – 00038296 – 004)

CA – 00038296 – 008 – I order the Respondent to pay the Complainant compensation of €160 net for the two unpaid Public Holidays.

CA – 00038296 – 009 - I order the Respondent to pay compensation of 2 weeks’ pay to the Complainant for the breach of this legislation. This amounts to a net payment of €800.

CA – 00038296 – 010 – no award made (duplicate of CA – 00038296 – 008).

CA – 00038613 – 001 – I order the Respondent to pay compensation of 6 weeks pay to the Complainant for the breach of this Regulation. This amounts to a net payment of €2,400.

All monies awarded should be paid to the Complainant within 42 days from the date of this decision.

Organisation of Working Time Act, 1997. The Terms of Employment (Information) Act, 1994.

European Communities (Road Transport) (Organisation of Working Time of persons performing mobile road transport activities) Regulations 2012.