ADJ-00016747

Complainant

Respondent

Parties

Filip  Rzeszutko

Dublin Bus

Representatives

Paul Henry SIPTU

Michael McGrath IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00021783-001

10/09/2018

In 2016 a case was referred to adjudication concerning the failure of the company to provide adequate notice pursuant to section 17 of the Organisation of Working Time Act 1997 as amended:

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.

The adjudication officer determined that the complaint was well founded and awarded compensation arising from the breach. This decision in turn was appealed to the Labour Court. The Court also determined that the complaint was well founded. The Court also recommended that the parties enter negotiations to reach agreement on providing notice pursuant to the relevant provisions in the Act.

The Court stated that:

“The Court notes that the infringement is systemic within the Respondent’s rostering notification system…. Were the Respondent not taking steps to bring itself into line with the terms of the Act the Court would consider a substantially higher award of compensation.”

A Public Transport Company v Worker DWT179

This new agreement was implemented in May 2018.

This complaint precedes this agreement.

The complainant alleged that a breach of the Act has occurred as the requisite notice was not given. The company knew they were in breach of the law and continued to breach the relevant provisions. No registered or collective agreement can be relied upon by the respondent to exempt them from the requirement to provide a worker with 24 hours’ notice when the starting and finishing times are not set.

The complaint related to spare drivers as distinct from marked drivers. A marked driver had a set route with predictable times. In contrast a spare driver is not attached to or marked into a particular route.

A technical breach occurred.  This meant that the worker received more than 24 hours’ notice. However, the notice did include rostered time off.

It is much more difficult to inform spare drivers in advance as they provide cover for a range of contingencies; some that are predictable and many that are not. The spare driver provided a backup to the marked in driver, who for a myriad of reasons was not able to attend for their shift arising from sickness, annual and personal leave. This practical difficulty is crucial in understanding the difference between marked drivers and spare drivers.

Section 5 of the Interpretation Act 2005 states:

5.— (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned, the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made, the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.

The complainant alleged that the company practice was to notify drivers of her or his start time/finish time by text at 1pm on the day (at the earliest) before they were due to start. This meant that any driver that commenced their shift before 12.59pm dd not receive their statutory 24-hour notice.

This complaint relates to a scenario when the driver was on back-to-back rest days.

There was no collective agreement with the representative Trade Unions or a registered agreement with the Labour Court in accordance with the Act to do so.

The complainant stated that based on the plain intention of the Act to provide,notify… 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 means that notice must be given prior to a rest day. As an example, if the complainant was rostered off on a Saturday and Sunday, they should receive notice of the starting time of their Monday Shift on the previous Thursday.

The complainant relied on a Dail transcript dated the 10th of April 1997 when Minister Eithne Fitzgerald as the Department of Enterprise and Employment clarified the intention on this section:

“The rule is that an employee should be given 24 hours’ notice before the weekly break. If an employee has Saturday and Sunday off, he or she should be told on Thursday night what his or her hours for the following Monday are “[ Dail record 10th of May 1997]”

I note that at Schedule 2 of the Interpretation Act 2005 it states:

“working day” means a day which is not a Saturday, Sunday or public holiday.

By extension to a shift worker, this must mean that scheduled rest days are not working days.

 Section 17 of the Organisation Working Time Act states notice should be provided at least 24 hours before the first day, and that must mean the first working day and notice does include a rest day or holiday:

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.

I note the following Labour Court report from the Arthur Cox Yearbook 2018 concerning a relevant case:

[25.12]

Stobart (Ireland) Driver Services Ltd v Kennedy & Ors 49—Labour Court—appeal of decision of Adjudication Officer—Organisation of Working Time Act 1997, s 17(1)—failure to notify workers 24 hours in advance of finish times in circumstances where finish times had not been given in contracts of employment, in any employment regulation order, registered employment agreement or collective agreement

The complainants’ case was that the respondent breached s 17(1) of the 1997 Act by failing to notify them 24 hours in advance of finish times in circumstances where such finish times had not been given to them in either their contracts of employment or in any employment regulation order, registered employment agreement or collective agreement. The Adjudication Officer had relied upon the Labour Court’s determination in Transport v Jacek Majchrzak 50 in dismissing the complaints.

The Court did not accept that there was any significant overlap between the factual matrix that applied in DWT1416: DMR Transport v Jacek Majchrzak and that of the within appeal.

The Court held that it remains firmly of the view that section 17(1) of the Act clearly requires that—in order for an employer to be able to rely on the saver in that subsection—an employee must have been notified by means of an express written term in his contract of employment (or by one of the other documented means provided for in the subsection) of his finish (and start) time(s). Finally, the Court notes that the legislature has not carved out an exception to section 17 of the Act in respect of the road transport sector.

The complaints were therefore held to be well founded and the complainants were awarded compensation each of €250

Stobart (Ireland) Driver Services Ltd v Kennedy & Ors DWT181

DMR Transport v Jacek Majchrzak DWT1416.

Stobart (Ireland) Driver Services Ltd v Fourteen Workers DWT1438.

The complainant referenced Lucey Transport Ltd v Serenas DWT13114:

“Where; however, an employee’s starting time and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work/life balance reasonable notice of starting and finishing times must be furnished by the employer”.

The employer stated that the complainant received a text notice on 24th of February 2018. This driver worked on the 26th of February 2018. The complainant was on annual leave on the date of the text message. The employee stated that another breach occurred on the 26th of March 2018 when he received a text message on Saturday 24th of March 2018 which was a rest day.

The employer also stated that all spare drivers knew if they were working early or late, the days of the week that they would be working, their rest days and would receive a text message well in excess of 24 hours for their shift. A new company/union agreement had rectified technical breaches and that was implemented in May 2018.

No loss, inconvenience or hardship had been caused by the technical breach.

The respondent employer referenced Anglo-Irish Beef Processing v Siptu DWT0019, a case concerning overtime that could not be predetermined as the number of cattle to be slaughtered varied in any given week. The Court upheld a breach of section 17(2) and 17(5); however, it did not award compensation:

“In accordance with Section 27 of the Act, I hereby decide that the Union’s complaint was well founded, as above. Accordingly, I require the Company to amend its procedures to bring them in line with the requirements of Section 17(2) and Section 17(5), also as above. Finally, in the particular circumstances of the case, I do not see the payment of any compensation as appropriate”

The employee had not received the required notice pursuant to section 17 of the Act; as a rest day/annual leave should not be included in the calculation of the notice period. The employer contended that this is a technical breach as in fact more than 24 hours’ notice was provided. However, the more persuasive fact is that a new company union agreement implemented in May 2018 had addressed the technical breach. This complaint related to a breach before the implementation of that agreement. There are operational reasons why it was difficult to provide more certainty to spare drives having regard to their role to backfill for marked drivers arising from unforeseen events. When a backfill required notice that straddled over rest days, this was more likely to occur arising from the unpredictability of the absence that required backfilling rather than an intention not to comply with the Act. It would be unfair not to have regard to this operational circumstance. This complaint while a technical breach to a large measure based on the operational constraints of unplanned absence; the employee did receive more than 24 hours’ notice albeit including a rest or annual leave day. 

Section 27 of the Organisation of Working Time Act 1997 as amended states:

(3)  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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

The complaint is well founded. I note that the company and union have amended their procedures to bring them in line with section 17 of the Act. In the particular circumstances of this case, I do not see the payment of any compensation as appropriate.

The employee had not received the required notice pursuant to section 17 of the Act; as a rest day/annual leave day should not be included in the calculation of the notice period. The employer contended that this is a technical breach as in fact more than 24 hours’ notice was provided. However, the more persuasive fact is that a new company union agreement implemented in May 2018 had addressed the technical breach. This complaint related to a breach before the implementation of that agreement. There are operational reasons why it was difficult to provide more certainty to spare drivers having regard to their role to backfill for marked drivers arising from unforeseen absences. When a backfill requirement and notice straddled over rest days, this was more likely to occur arising from the unpredictability of the absence that required backfilling. It would be unfair not to have regard to this operational circumstance. This complaint while a technical breach to a significant extent arose from the unpredictability of unplanned absences; the employee received more than 24 hours’ notice albeit including a rest day or annual leave day.

Section 27 of the Organisation of Working Time Act 1997 as amended states:

(3)  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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’ s employment.

The complaint is well founded. I note that the company and union have amended their procedures to bring them in line with section 17 of the Act. In the particular circumstances of this case, I do not see the payment of any compensation as appropriate.

Notice Period