Complainant

Respondent

Parties

Grzegor  Walczak

Wentworth Transport Limited

Representatives

  Self-Represented

 Gary Carolan

Act

Complaint/Dispute Reference No.

Date of Receipt

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-00050669-002

09/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00050669-003

09/08/2022

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

CA-00050669-004

09/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation with the assistance of an interpreter provided by the WRC.  The Managing Director of the Respondent gave his evidence under affirmation. The parties were offered the opportunity to cross examine the witness for the opposing party but declined to do so.

CA-00050669-002 Road Transport Regulations

The complainant indicated that he was not pursuing a compliant under the Regulations and had no recollection of having taken such a complaint.

CA-00050669-003 Terms of Employment

The complainant indicated that he never received a statement of his terms and conditions of employment.  He also stated that he only saw the contract submitted by the respondent for the first time when it was forwarded by the WRC as part of the respondent’s submissions.

The complaint stated that the contract he allegedly received does not indicated a start date and contains no further details of the complainant beyond his name, does not indicated the address of the employer, had no hourly rate and contained no signature except for that of the managing director.

CA-00050669-004 Organisation of Working Time

The complainant indicated that he was required to work over the maximum hours permitted by the Organisation of Working Time Act and in evidence outlined how he was not paid for his travel time to and from work and for the time it took to get the keys from the office once he arrived in work.

CA-00050669-002 Road Transport Regulations

The compliant was not pursued by the complainant.

CA-00050669-003 Terms of Employment

The respondent submitted that it had a copy of a contract relating to the complainant on file.  The witnesses stated that the contract of employment would have been given to the complainant by the company’s Financial Controller.

CA-00050669-004 Organisation of Working Time

The respondent submitted that the complainant did not work over the hours permitted by the Act and was paid for any hours he worked.  The witness stated that the complainant was not entitled to be paid for his travel time to and from work or to consider these hours as hours of work.

CA-00050669-002 Road Transport Regulations

The complainant indicated that he was not pursuing a compliant under the Regulations and therefore this complaint is deemed withdrawn.

CA-00050669-003 Terms of Employment

There is some contention as to whether the complainant was given a contract of employment or not.  However, the contract of employment as submitted does not comply with provisions of the Terms of Employment (Information) Act, 1994.

Section 3(1) &(1A) of that Act state as follows:

3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of 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,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made,

(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) F9[are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

Accordingly, I find that the compliant is well founded and I consider that compensation equivalent to 4 weeks remuneration is just and equitable in the circumstances.  The respondent submitted that the complainant was earing €620 per week and therefore the amount of compensation is €2480.

CA-00050669-004 Organisation of Working Time

The complainant submitted that he was required to work more that 60 hours per week and outlined that he considered getting to and from work as part of his working hours.  The respondent submitted documentation that it had compiled in response to a WRC inspection which outlined that the complainant worked just under the 48-hour maximum permitted by the legislation.  It was also stated that they did not consider travel time to and from work to be hours of work.  Having regard to the foregoing, I am not satisfied that the complainant has established that he worked for more than 48 hours per week.

Having regard to all the circumstances put forward by both parties, I find that the complaint is not well founded.

CA-00050669-003 Terms of Employment

Having regard to all the written and oral submissions made in relation to this complaint, my decision is that this complaint is well founded, and I award the complainant compensation of €2480 which is just and equitable in all the circumstances of this complaint.

CA-00050669-004 Organisation of Working Time

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that this complaint is not well founded.

Terms of Employment – no statement provided – well founded – award of compensation – Organisation of Working Time – excess hours - not well founded