DWT2239

FULL RECOMMENDATION

WTC/22/100
ADJ-00016458 CA-00021367-001

DETERMINATION NO. DWT2239

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

DUBLIN BUS
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR. GRZEGORZ KUCINSKI
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman:	Ms Connolly
Employer Member:	Mr Marie
Worker Member:	Mr Hall

SUBJECT:

1.Appeal Of Adjudication Officer Decision No ADJ-00016458.

BACKGROUND:

2.The Union appealed an Adjudication Officer Decision under the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 9 June 2022. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by SIPTU, on behalf of Grzegorz Kucinski, against a Decision of an Adjudication Officer (ADJ-00016458, dated 14 March 2022) in a complaint made under the Organisation of Working Time Act 1997 (“the Act”).

The Adjudicator Officer found as follows: “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”.

For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr Kucinski is referred to as “the Complainant” and Dublin Bus is referred to as “the Respondent”.

Background to Appeal:

The complainant is a ‘spare driver’ working with the Respondent. He is not attached to a particular bus route and provides cover for ‘marked in’ drivers when they are absent due to annual leave, sick leave, or are unavailable for duty. The appeal before the Court relates to a claim that the Respondent contravened the Act when it failed to provide adequate notice to the Complainant of his working hours, as required under section 17 of the Act.

The complaint before the Court was lodged to the Workplace Relations Commission on the 24 of August 2018. The cognisable period for consideration by the Court of contraventions of the Act is the period from 25 of February 2018 to 24 August 2018.

On the same day the Court heard an appeal of a decision of an Adjudication Officer by the same union on behalf of another employee of the Respondent, regarding a similar complaint of a breach of section 17 of the Act, WTC/22/102.

Complainant’s Submission:

SIPTU, acting on behalf of the Complainant, submits that a breach of the Act occurred when the Respondent failed to notify the Complainant about his shift hours, as is required under section 17 of the Act. The Complainant was on scheduled rest days on 14, 15 and 16 April 2018. The Complainant received notice at 1pm on 16 April 2018 of his shift hours for the following day. He started his shift at 2.38pm on 17 April 2018. SIPTU submits that when a driver is on back-to-back rest days he should receive notice of his shift 24 hours before going on his rest days. The worker received notice at 1pm on, 16 April 2018, during his rest period in contravention of the Act.

The Complainant is one of a wider group of circa 150 drivers who did not receive notice of his start and finish time in accordance with section 17 of the Act. This type of infringement was systemic within the company’s rostering notification system on a daily basis at that time.

SIPTU submits that the company knew they were in breach of the law at the time 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.

SIPTU acknowledges that the company subsequently took steps to eradicate the breach, however, this does not take away from the fact that the workers employment rights were breached at the time.

The failure to provide the requisite notice caused considerable inconvenience for workers who were not given an opportunity to reconcile their work and family life obligations.At the time of the infringement when the Complainant was on rest periods, he could not fully plan his life.

SIPTU seeks compensation that is just and equitable for a breach of section 17 of the Act. In support of its position, SIPTU relies on the rationale of the Labour Court set out inDWT13114 Lucey Transport Ltd v Seransa, where the court stated:

"It seems to the Court that the underlying rationale of the provision is perfectly clear. It is directed as making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obligated to start or finish work at any other time as any variation from the contractual term can only be by mutual agreement. Where, however, an employee’s starting 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…In all the circumstances of the case the Court considered that the appropriate mode of redress is an award of compensation in the amount of €2,500.”

SIPTU submits that the appeal is on all fours withDWT179 A Public Transport Company and A Worker where the Court awarded €1200 for similar breaches and suggests that an award mirroring or exceeding that amount, or the €1000 awarded by the Court inDWT1640 Philmic Limited T/A Premier Linen Services and Edgards Petraitis,is appropriate.

Respondent’s Submission

Ibec, on behalf of the Respondent, submits that spare drivers are not informed of their start times as far in advance as other drivers due to the nature of their roles, as it is more difficult to predict with certainty when they will be required to carry out their shifts.

TheComplainant was issued with notice by text of his shift start time on Sunday, 15 April 2018, at 9pm. He started work on Tuesday, 17 April 2018 at 14.35 and soreceived a text message far more than 24 hours’ notice of his relevant shift.Roster sheets were also displayed in the bus depot from the time the text notifications were sent.Furthermore, he was fully aware of whether he would be working ‘early’ or ‘late’ duties over a five-week cycle, and also knew which days of the week he was rostered to ‘work’ or ‘rest’.It accepts that a technical breach of the Act occurred.Since May 2018, a‘Collective Agreement regarding duty notification for drivers’was agreed and implemented with the relevant unions, which has removed the potential for any breaches under section 17, systematic or otherwise, for drivers to take place in the future. In short, the matter has now been addressed and resolved.

The Respondent submits that the alleged breach is minor and technical in nature and that the Complainant has not suffered any inconvenience, loss, or hardship. The respondent acted in good faith at all times and worked in collaboration with the union to operate a notification system which is compliant with the Act. It submits that an award of compensation is not merited or reasonable in such circumstances, particularly as the matter giving rise to the complaint has been addressed and resolved. It relies on Anglo-Irish Beef Processing v SIPTU DWT0019 where the Court didnot see the payment of any compensation as appropriate to support its position.

The Respondent further submits that the case law relied upon by the union in support of its claim is not on all fours with the matter on appeal before the court. InDWT179 A Public Transport Company and A Worker, which related to 20 breaches of the act, no collective process was in place to remedy matters and the issues were not rectified. In the case ofDWT1640 Philmic Limited T/A Premier Linen Services and Edgards Petraitismultiple sections of the Act were breached and again no steps taken in collaboration with trade unions to rectify the matter.

The Respondent asked the Court to take the background that gave rise to these claims into account.
The Labour Court directed Dublin Bus to ‘take all necessary steps to enable it to so comply with the terms of section 17 inthe Act” in the case ofDWT179 A Public Transport Company and A Worker, which addressed breaches of Section 17 of the Act in relation to another employee of the Respondent. A system was implemented in May 2017 to ensure drivers received notice in accordance with the Act.An enhanced system, which gives drivers notice more than the statutory requirements, was formally agreed with all Unions, and came into effect in May 2018.

Agreement was subsequently reached with the unions to pay €500 compensation to identified drivers who were subject to possible breaches of Section 17(1), i.e. less than 24 hours notification of hours of their working hours/shift. This was paid in May 2018.Over 200 further claims were lodged by SIPTU (not NBRU) in relation to alleged breaches under section 17 (3) of the Act. It was agreed that a number of test cases would be heard by an Adjudicator and that the recommendation from the Adjudicator would be applied to the wider group of employees with similar claims, in order to conclude this issue. Despite the local agreement SIPTU then appealed these individual claims to the Labour Court.The Relevant Law :

Section17 of the Act sets out requirements in relation to the provision of information to an employee in relation to working time, as follows:-

(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.

Deliberation and findings:

The Act provides that where an employee’s normal hours of works are not specified in a contract of employment, or alternatively in an employment regulation order, registered employment agreement or collective agreement applicable to them, an employee is entitled to advance notice of the hours that they are required to work. That notice should be given by the employer to an employee at least 24 hours in advance of the hours or days that the employee is required to work that week.

Where an employee is on a rest day, the employee is entitled to be notified about the hours that they are required to work before the last period of 24 hours when they were required to work.

In the within appeal, the parties dispute the exact timing of when the complainant was notifiedabout his forthcoming working hours, with the Respondent submitting that the Complainant was notified by text on Sunday evening (15 April) at 9pm, and the Complainant contending that he was notified on Monday (16 April) at 1pm. The Court was advised by the Respondent that any records of text notifications had long since been deleted and no evidence was proffered to the Court on this matter. Notwithstanding thatthe exact timing of the notification is disputed, both parties accept that a breach of section 17(3) of the Act occurred as the Complainant was not notified about his forthcoming shift duties on 17 April 2018 before he availed of his rest days on the 14, 15 and 16 April 2018.

In light of the facts set out above, it is clear that the Complainant was not notified about his forthcoming working hours on 17 April 2018 within the timeframe specified at section 17(3) of the Act. As a result, the Court finds that the complaint in relation to abreach of section 17(3) of the Act is well founded.

Where a complaint is well founded an Adjudication Officer (and the Labour Court on appeal) can require the employer to comply with the relevant provision that has been breached. In this case, the Court is satisfied, having regard to the submissions made by both parties, that measures were put in place by the Respondent in 2018 following the conclusion of a collective agreement with the relevant unions that removed the potential for further breaches, systematic or otherwise, arising under section 17.

The key matter for the Court to consider in this case is the appropriate remedy (if any) in circumstances where, as acknowledged by the parties, a breach of Section 17(3) the Act occurred.

The matter of compensation where a complaint is well founded is addressed at Section 27(3)(c) of the Act which sets out that an employer may be required to pay to an 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.

In determining what (if any) compensationis just and equitable, an Adjudication Officer (and the Labour Court on appeal) must apply the principles of effectiveness, deterrence and proportionality as derived from European law and, in particular, the judgment of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-Westfalen (Case C-14/83) [1984] E.C.R. 1891. That case addressed a question regarding equal treatment for men and women as regards access to employment.

Commenting on the judgement of Von Colson in the case ofDWT15125 C & F Tooling Limited and Jason Cunniffethe Labour Court took note of the CJEU’s statement that:-

“Although Directive 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member-States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member-State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.

The Labour Court went to say that “Like every case, the decision in Von Colson is authority only for what it decided”.

Addressing breaches of the Organisation of Working Time Act 1997 in [2014] IEHC 263 – Piotr Brysewski and Fitzpatrick and Hanleys Limited trading as Caterway and the Labour Court,Birmingham J noted :-

“The circumstances in which breaches of the Act of 1997 occur are likely to vary very significantly. Some cases may involve breaches that are major and deliberate with serious consequences for the employees involved and could probably, in some cases, be described as egregious. On the other end of the spectrum, there may be breaches which were unintentional, minor, rectified and, in practice, were of little consequence(para 14).

The Respondent submits that the breach that occurred in this appeal is so minor and technical in nature that it does not warrant an award of compensation. While it does not dispute that an individual worker is entitled to submit a claim in relation to a breach of employment rights, it submits that the within claim is disingenuous, and requests that the Court take the wider background that gave rise to the claim into account.

The union, for its part, submits that any argument that a technical breach does not warrant an award is absurd. It acknowledges that the company took steps to eradicate the breach, however, it submits that this does not take away from the fact that a workers employment rights were breached at the time.In response to questions from the Court, the union classified the breach as one that lay in the lower to mid-range of seriousness.

While there may be wider industrial relations considerations arising from a decision of the Court in relation to employment rights matters, the Labour Court can only address matters where it has jurisdiction to do so. The Court’s jurisdiction in the within appeal is confined to considering the Complainant’s single complaint in relation to a breach of section 17(3) of the Act.

The provisions of the Act, and of Directive 93/104/EC of 23 November 1993 on which it was based, set down minimum health and safety standards. While the provisions of section 17 are not part of the Directive, the Court considers any breaches under the Act very seriously.

Awards of compensation for breaches of the Act vary significantly having regard to the circumstances of each case. By the union’s own assessment to the Court, the contravention of the Act in the within appeal lies on the middle to lower range ofseriousnessin a scale of breaches. In the Court’s view the breach lies at the lower end of that spectrum.

The Complainant at the time of the breach wasaware of when he was due to work ‘early’ or ‘late’ duties over a five-week cycle. He knew which days were rostered as ‘work’ or ‘rest’.The Complainant had three days’ rest prior to working his shift on 17 April 2018 and received more than 24 hours’ notice of his forthcoming workings hours, albeit that period fell during his rest day. On the facts of the case as presented, the Court is of the view that the Complainant suffered no adverse consequences of any materiality as a result of the sole breach upon which his claim for compensation is grounded. Furthermore, the Respondent amended its notification procedures to ensure compliance with section 17 of the Act.In all the circumstances the Court finds that the breach was minor in nature.

In the Court’s view the breach of the Act that occurred in this case can be differentiated from the cases ofDWT179 A Public Transport Company and A Worker, which addressed multiple breaches of Section 17 andDWT1640 Philmic Limited T/A Premier Linen Services and Edgards Petraitiswhich addressed breaches of multiple sections of the Act.

While there may be mitigating factors in relation to this claim, nevertheless the Act was contravened and,in the view of the Court,this fact must be marked by the Court in considering the question of redress. The Court is obligated to consider if an award is just and equitable having regard to all the circumstance. In assessing quantum the Court must assess where on the spectrum a breach lies. In this case, the Court has found the breach to be minor in nature, where the Complainant suffered no loss or hardship.

The Court believes that an award of compensation in the amount of €150 to be fair and proportionate having regard to all the circumstances.

The decision of the Adjudication Officer is varied accordingly.

	Signed on behalf of the Labour Court

	Katie Connolly
SL	______________________
26 September 2022	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary.