ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036528
Parties:
| Complainant | Respondent |
Parties | Peter Kearney | Bluebeam Ltd T/A Emerald Cultural Institute |
Representatives | John Whipple, IWW Trade Union | Hugh Hegarty, Management Support Services (Ireland) Ltd |
Complaint:
Act | Complaint 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-00047709-002 | 17/12/2021 |
Date of Adjudication Hearing: 18/01/2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. The Respondent’s representative indicated that the Respondent would not be putting any witnesses into evidence. The Complainant was sworn in.
Background:
The Complainant was employed by the Respondent as an English language teacher. The Complainant worked approximately 26 hours per week and was paid €655.10 gross per week. In March 2020, the Respondent was forced to temporally close its premises and suspend classes due to the restrictions that were put in place as a result of the Covid 19 global pandemic. At that time all of the teachers, including the Complainant, were placed on temporary layoff. |
Summary of Complainant’s Case:
The Complainant submits as follows: The Complainant submits that the Respondent did not maintain proper annual leave records. The Complainant submits that, contrary to the Organisation of Working Time Act, the Respondent was not including the time spent on annual leave when calculating the annual leave entitlement. The Complainant submits that, as a result of the Respondent not including this time in the calculation of annual leave, employees, especially those on hourly rates of pay, ended up getting paid less holiday time especially when they took holidays earlier in the year. The Complainant submits that when he brought this to the Respondent’s attention, it steadfastly refused to accept his position until he was forced to do his own calculations going back over six years. The Complainant is requesting that the Respondent’s annual leave records be investigated to ensure that it is paying all staff the correct amount and that it has maintained good historical records of holiday pay calculations. Additionally, the Complainant submits that the Respondent is not keeping proper track of teachers' rates of pay. The Complaint further submits that the Respondent did not keep an accurate record of his employment start date and that it was only as a result of his own recordkeeping that the correct start date was discovered. The Complainant also submits that the Respondent has not properly recorded his lay-off dates, which also affected his redundancy total. The Complainant contents that the Respondent’s incorrect recording of his start date could have (had he not kept records) led to an even lower redundancy payment. However, as he kept good records, the correct date was agreed. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant is not a mobile worker or a self-employed driver and is, therefore, outside the scope of the Regulation 18 of the European Communities (Road Transport) Organisation of Working time of Persons performing Mobile Road Transport Activities) Regulations 2021 S.I. 36/2012. |
Findings and Conclusions:
I find that the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. 36 of 2012 apply to bus and truck drivers and other mobile workers who use tachographs for recording driving times, breaks and rest periods. A mobile worker is defined as any worker forming a part of the travelling staff who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account. There was no dispute that the Respondent operated an English language school. I am satisfied from the evidence adduced that the Complainant is not covered by 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 and accordingly I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
Dated: 02nd February 2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Complainant is not covered by the regulation |