Complainant

Respondent

Parties

Micheal Carroll

Ballylibert Limited T/A  Satellite Taxis

Representatives

Aoife Mccarthy Douglas Law Solicitors LLP

Ms Denise Mulcahy BL instructed by Paul O'Mahony Edward O'Mahony & Co 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-00042683-001

24/02/2021

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

CA-00042683-002

24/02/2021

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

CA-00042683-003

24/02/2021

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

CA-00042683-004

24/02/2021

The Complainant commenced working as a Base Operator with the Respondent taxi company on 20 April 2009. His weekly hours vary between 32 and 40 hours per week. His stated pay is €412.80 gross: net €374. He submits that he did not receive a copy of his terms and conditions of employment contrary to the Terms of Employment (Information) Act 1994. He further submits that he did not receive his statutory annual leave days, work breaks and public holidays in contravention of the Organisation of Working Time Act 1997.

Preliminary Issue: Cognisable Period for Complainant.

The Respondent raised a preliminary issue with regard to the cognisable period for complaints as set out under section 41 (6) of the Workplace Relations Act 2015 where it states as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

The Respondent contends that it is settled law that the cognisable period for the purpose of these complaints is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission which was 24 February 2021. Therefore, the cognisable period covered by the complaints is the six-month period from the 24th of August 2020 to 24 February 2021. The Respondent asserts that the Adjudication all the complaints pre-dating the six months prior to the lodging of the Complainant’s WRC claim form.

In relation to the specific complaint  relating to annual leave entitlements, the Respondent relies on the case of Tapastreet Ltd & Joseph Mitchell Labour Court Determination DWT176 [ADJ-00000462] of 2nd February 2017, whereby the Labour Court found that the entitlement of the employee to annual leave was statutorily limited to that arising from April 1st in the year on which any WRC claim was submitted, stating “any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1stApril to 16thOctober 2015. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred, and to that extent, it is not cognisable by the Court”.

Therefore, the Respondent submits, the extent of the complaint on annual leave can relate no further back than 1 April 2020.

The Complainant asserts that the Respondent has conceded in a previous correspondence with the Complainant that he (the Complainant) was owed 58 hours annual leave which resulted in a rolling calculation over a number of years and that this should be the value of the award.

CA – 00042683 – 001 Terms and Conditions of Employment

In 12 years of working with the Respondent, The Complainant did not receive a statement in writing of his terms and conditions of employment.

The Complainant is seeking compensation under the Terms of Employment (Information) Act, 1994 on the basis that he was not provided with written Terms and Conditions of Employment during the currency of his employment.  

CA – 00042683 – 002 Annual leave:

The Complainant did not receive his full paid holiday/annual leave entitlement. The Respondent has also failed to maintain appropriate records. A dispute arose as to the correct annual leave entitlement.

In reply to an assertion by the Respondent that the Complainant owed the Respondent 35 hours, the Complainant submitted his own calculations based on his records showing that he was, in fact, due 11.5 days (92 hours) annual leave.  The Respondent acknowledged, in email correspondence, on 19 October 2020 that ‘2020 was not included in my calculation as 2020 is not finished yet’.

On 19 January 2021, the Respondent accepted that the Complainant is due 58 hours annual leave.  The Respondent now states that no annual leave is due to the Complainant. The Complainant did not take any annual leave from August 2020 to January 2021.

The Complainant is seeking confirmation that he is due 12.25 days annual leave. The Complainant is also seeking compensation for continuing breaches of the Organisation of Working Time Act, 1997, as amended.

CA – 00042683 – 003 Lack of Breaks:

The Complainant does not get breaks. The Respondent has conceded in a submission that the Complainant does not get designated breaks and has sought to avail of the exemption under the Organisation of Working Time (General Exemptions) Regulations 1998 (SI. No. 21 of 1998). The Complainant denies that he comes under these regulations. The Regulations do not apply as the provision of emergency services does not come under the exemption provided for under the Regulations. Even if the Regulations are deemed to apply (which the Complainant denies), the Complainant submits that the Respondent does not ensure that the Complainant has an equivalent compensatory break immediately, or as soon as possible after the time at which the statutory break falls due.

The Complainant works alone, for the most part, at nights operating an extremely busy switch for the Respondent taxi company. The Respondent uses ‘Autocab’ software which contains standard reports including missed or unanswered call reports. This report includes date, time, calling numbers, ring times, etc per shift/shift operator. The system does not record the Complainants calls to drivers. The Complainant has been reprimanded by the Respondent proprietor previously due to calls being unanswered. The Complainant cannot answer multiple calls at the same time during busy periods and is unable to take a break. He eats between calls at his desk. The Respondent has failed to keep appropriate records of breaks in the prescribed format.

The Complainant is seeking compensation for breaches of the Organisation of Working Time Act 1997.

CA – 00042683 – 003 Public Holidays

The Complainant did not receive pay or an additional day's annual leave in respect of the following public holidays:  Friday 25th December 2020, Friday 1st January 2021 and Wednesday 17th March 2021.

 The Complainant in evidence denied that there had been an agreement brokered by a driver with the Respondent whereby it was agreed that people would forego their entitlement to public holiday pay due to a purported financial downturn during the Covid-19 lockdown period. The Complainant further submits that the Respondent’s company accounts show only a minimal downturn in business.

The Complainant is seeking to be paid for the public holidays which he worked, being 24 hours x €12.90 per hour as well as compensation for breaches of the Organisation of Working Time Act, 1997 as amended.

CA – 00042683 – 001 Terms and Conditions of Employment

The Respondent accepts that the Claimant was not furnished with his written terms and conditions as prescribed under the Terms of Employment (information) Act 1994.

CA-00042683- 002 – Annual Leave.

The Respondent submits that any concessions made by the Respondent relating to accumulation of annual leave hours over the entirety of the 12 years of employment of the claimant herein were made without the assistance of specific legal advice that no statutory claim could be maintained on the Complainant’s part for hours dating back over a decade. Additionally, the Respondent relies on the fact of no complaint having been made by the Complainant regarding entitlement over many years.

The Respondent refers to the preliminary point above, with regard to the limitation of the Adjudication to the statutory annual leave year only wherein the complaint was made but accepts that the Complainant was not paid for four days entitlement of annual leave for the 2020 leave year which commenced on 1 April 2020.

CA-00042683- 003 – Lack of Breaks  

The Respondent contests this claim on the basis of the applicability of the Organisation of Working Time (General Exemptions) Regulations 1998 [S.I. 21 of 1998] which exempts, at Section 3(1) thereof, activities particularised in the Schedule, including-

“An activity falling within a sector of the economy or in the public service-(a) at which it is foreseeable that the rate at which production or the provision of services, as the case may be, takes place will vary significantly from time to time, or, the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services as the case may be, and in particular, any of the following activities, (i) the provision of services relating to the reception, treatment or care of persons in a residential institution, hospital or similar establishment”.

The Respondent contends that Section 3(1) is stated to be without prejudice to Regulations 4 and 5 of the regulations, which mandate that where any employee is not entitled to breaks by reason of the exemption, that the employer shall: “ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first mentioned rest period and break” and that an employer, “shall not require an employee to whom the exemption applies to work during a shift .. of more than 6 hours duration … without allowing him a break of such duration as the employer determines” and in the determination of same, “the employer shall have due regard to the need to protect and secure the health safety and comfort of the employee and to the general principle concerning the prevention and avoidance of risk in the workplace”.

The Respondent submits that contracts with hospitals and blood banks who have requirements for taxi vehicles on emergency basis and where the continuity of service provision in this respect in particular forms part of the Complainant’s work.  The Respondent further asserts that, additionally and more generally, the Complainant’s work involves ensuring the smooth operation of the taxi business during the period of 12pm to 8am, where fixed set-break times are not appropriate.

The Respondent contends that it is fully in compliance with its statutory obligations with respect to the provision of compensatory work rest periods and the claimant freely utilises kitchen facilities, as well as utilising computer facilities for personal and non-work-related pursuits, when phone lines are not operational. The Respondent submits that the Complainant has many opportunities for rest periods during his 8-hour work period. Further to this, the Respondent arising from same, has identified busy periods, when a second base operator is rostered in order to maintain the efficiency of the phone answering business requirement. Further again, the Respondent has been actively engaged in enabling the business from a technological perspective and many of its clients now utilise its

online/App booking facility such that the phone line answering duties have reduced considerably in recent times. The Respondent relies on a review of phone records, which demonstrates that over a 96-hour period worked by the Complainant, the Complainant was operating the phone for a period of 6 hours and 43 minutes. The Complainant does not have any additional duties to complete during his work shift and accordingly, it is clear that he has extensive opportunity for rest periods. The Respondent submits that it affords him the latitude to select such rest periods as the Complainant deems appropriate during his 8-hour work shift, subject to the limited requirement that he operate the phones when needed.

 CA-00042683-Public Holidays.

A taxi driver with the Respondent (hereinafter ‘the Taxi Driver’) gave evidence that in the context of the significant impact of COVID-19, the Complainant agreed to a proposal advanced that all staff would waive their entitlement to public holiday pay.

The Respondent submits that modifications to employee entitlements, as negotiated by staff members, with a view to sustaining the viability of a business significantly impacted by COVID-19 were commonplace over the recent two-year period. The Respondent contends that the Complainant was agreeable to the proposal and was prepared to waive his public holiday pay entitlement.

Preliminary Point – Cognisable Period:

Section 41 (6) of the Workplace Relations Act 2015 where it states as follows: states as follows:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

It is clear that the cognisable period for consideration of claims is only within the six-month period before the date the complaints were received, Furthermore, the statutory year as defined in section 2 of the Organisation of Working Time Act 1997 (hereinafter ‘the Act) declares that the leave year begins on 1 April. The Respondent opened Tapastreet Ltd & Joseph Mitchell Labour Court Determination DWT176  whereby the Labour Court found that the entitlement of the employee to annual leave was statutorily limited to that arising from April 1st in the year on which any WRC claim was submitted, stating “any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leaveon the cessation of his employment accrued within the period, i.e. from 1stApril to 16thOctober 2015. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred, and to that extent, it is not cognisable by the Court”. I find therefore that the cognisable period for complaints under the Act is the six-month period prior to the submission of a complaint, save in the case of entitlement to annual leave which in this instance is solely the statutory annual leave year period beginning on 1 April 2020. 

CA – 00042683 – 001 Terms of Employment.

The Respondent conceded on this Complaint at the hearing. The only matter to be addressed is the amount of compensation to be awarded. 

The Terms of Employment (Information) Act, 1994 requires that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded…

 …(d) in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Complainant submits that he never received a statement of his terms of employment from the Respondent during the period he was employed. It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. An associated hearing on a Sunday Premium complaint, which was heard in conjunction with this hearing, illustrated the difficulties the Complainant experienced in attempting to discern how his correct rate of pay was calculated. Further issues also arose at the hearing with regard to discernible hours and break times.  I therefore find that the consequence of not receiving written terms and conditions was not inconsiderable for the Complainant. I find the complaint is well founded and I order the Respondent to pay the Complainant compensation of €750, the equivalent of two weeks net pay.

CA-00042683- 002 – Annual Leave.

Section 27 of the Act provides:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

There was tacit agreement that the Complainant had four outstanding days leave from 2020, which were not taken by the Complainant for which he was due payment. I was concerned that no evidence was furnished by the Respondent to show that records were kept in the prescribed manner as provided for under S.I. 473 of 2000.  

The circumstances in which compensation under subs.(3)(c) should be awarded in addition to outstanding holiday entitlements were considered by the Labour Court in Kennedy's Café Bar Ltd v A Worker DWT 26/2000 and Cementation Skanska v Carroll DWT 38/2003. In the latter case, the Labour Court said that, given the requirements of Art.7 of the Working Time Directive, an award of compensation for loss of annual leave “need not be limited to the value of the lost holidays”. The court recognised that, where the right to annual leave is infringed, the redress provided “should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”. I am satisfied in this case that there was no malicious intent on behalf of the Respondent to deprive the Complainant of his entitlement to annual leave but that there remained a disregard for the obligation to keep proper records.

I find that the Complaint is well founded, and I require the Respondent to:

1.       Pay the Complainant four days annual leave payment based on an 8-hour day at €12.90 per hour.

2.        To ensure, upon receipt of this decision and onwards, that proper records in line with S.I. 473 of 2000, be maintained

3.        Pay compensation of €500 to the Complainant for a breach of the Organisation of Working Time Act 1997.

CA-00042683- 003 – Lack of Breaks

Section 12 of the Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Respondent submitted that the applicability of the Organisation of Working Time (General Exemptions) Regulations 1998 [S.I. 21 of 1998 exempted it from setting designated break times. Regulation 3 provides   that:

(1) Without prejudice to Regulations 4 and 5 of these Regulations and subject to the subsequent provisions of this Regulation, each of the activities specified in the Schedule to these Regulations is hereby exempted from the application of sections 11, 12, 13 and 16 of the Act.

(2) The exemption shall not, as respects a particular employee, apply in relation to—

(a) section 11, 12, 13 or 16 of the Act if the employee—

(i) is not engaged wholly or mainly in carrying on or performing the duties of the activity concerned,

(ii) is exempted from the application of that section by virtue of regulations under section 3(3) of the Act,

Para 3 of Schedule 5 of the Regulations provides in its relevant part:

An activity falling within a sector of the economy or in the public service—

(a) in which it is foreseeable that the rate at which production or the provision of services as the case may be, takes place will vary significantly from time to time,

or

(b) the nature of which is such that employees are directly involved in ensuring the continuity of production or the provision of services, as the case may be,

and, in particular, any of the following activities—

…(i) the provision of services relating to the reception. treatment or care of persons in a residential institution, hospital or similar establishment…

Uncontested evidence was given of the Respondent’s contracts with various hospitals for the transportation of patients and blood samples, which require the direct input of the Complainant, so I conclude that the exemption in S.I. 21 of 1998 applies. However, there is a requirement for the Respondent under the Regulations to facilitate compensatory rest periods. Regulation 4 gives guidance on compensatory rest periods where it states:

If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.

It is a matter for the person seeking to rely on the exemption to show that they have complied with these Regulations. There was no evidence in this case that there was any type of record or oversight of the rest periods for the Complainant, other than the provision of basic cooking facilities and the laissez faire attitude that the Complainant could look after his own breaks.  This approach complies with neither the spirit nor the letter of the law when it comes to compensatory breaks. I therefore find that the complaint was well founded. However, I must consider the plausible evidence that the Complainant has considerable time to himself during the night shift and therefore, in the general round of things, the breach is more technical in nature. Taking this fact into account, I require the Respondent to pay the Complainant compensation of €250 for not ensuring that compensatory rest periods were available to the Complainant in breach of the Organisation of Working Time Act 1997. I also require the Respondent to ensure that compensatory rest periods for the Complainant comply with the relevant provisions and ancillary regulations provided for under the Organisation of Working Time Act 1997.

CA-00042683-Public Holidays.

Section 21 of the Act provides as follows:

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

A taxi driver gave evidence that he had a spoken with the Complainant about a gesture of foregoing the premium payment for working bank holidays, due to a downturn in the business as a result of the Covid-19 pandemic. He said that he had the agreement of all staff, including the Complainant, and then approached the owner of the Respondent company with what he described as a ‘gesture’. The Complainant denied such an agreement.  I found that the evidence of the taxi driver not to be convincing in that he could not recall the date nor time of year, or indeed the year, he approached the Complainant on this matter. I therefore find the evidence of the Complainant to be more plausible on this point.  Furthermore, in Malahide Community School and Dawn Conaty 2019 IEHC 486 the High Court held that an employee cannot sign away their employment rights without getting appropriate legal advice and being advised to get appropriate legal advice. In this case there was no written agreement, allied with unconvincing evidence of a verbal agreement. I therefore find that the Complainant entered no agreement with the Respondent to waive his right to public holidays.

The Complainant is seeking payment for three public holidays: 25 December 2020, 1 January 2020 and 17 March 2021. However, the cognisable period for the purposes of this claim i.e. six months before the complaint was submitted on 24 February 2021. Therefore, the 17 March 2021 is excluded. I find that the complaint was well founded, and I require the Respondent to pay the Complainant for the two aforementioned public holidays.

CA – 00042683 – 001 Complaint seeking adjudication under section 7 of the Terms of Employment (Information) Act 1994.

I find the complaint was well founded for the reasons outlined above and I order the Respondent to pay the Complainant compensation of €750.

CA-00042683- 002 – Complaint seeking adjudication under section 27 of the Organisation of Working Time Act 1997 – Annual Leave.

I find that the Complaint is well founded, and I require the Respondent to:

1.       Pay the Complainant four days annual leave payment based on an 8-hour day at €12.90 per hour.

2.        Ensure that proper records of annual leave are kept in accordance with S.I. 473 of 2000, be maintained

3.        Pay compensation of €500 to the Complainant for a breach of the Organisation of Working Time Act 1997.

CA-00042683- 003 – Complaint seeking adjudication under section 27 of the Organisation of Working Time Act 1997 – Work Breaks.

I find the complaint was well founded for the reasons outlined above. I require the Respondent to pay the Complainant compensation of €250 for not ensuring that compensatory rest periods were available to the Complainant in breach of the Organisation of Working Time Act 1997.  I also require the Complainant to ensure that, in future, compensatory rest periods for the Complainant comply with the relevant provisions and ancillary regulations as set down under the Organisation of Working Time Act 1997.

CA-00042683- 004 – Complaint seeking adjudication under section 27 of the Organisation of Working Time Act 1997- Public Holidays.

 I find that the complaint was well founded for the reasons outlined above and I require the Respondent to pay the Complainant 16 hours pay at €12.90 per hour.

Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997, Annual Leave, Rests and Intervals at Work, Public Holidays, Compensatory Rest Periods.