Complainant

Respondent

Parties

A customer retention agent

A utility provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038866-001

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038866-002

23/07/2020

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

CA-00038866-004

23/07/2020

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

CA-00038866-005

23/07/2020

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-00038866-006

23/07/2020

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

CA-00038866-007

23/07/2020

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

CA-00038866-008

23/07/2020

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

CA-00038866-010

23/07/2020

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

CA-00038866-011

23/07/2020

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-00038866-012

23/07/2020

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-00038866-013

23/07/2020

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

CA-00038866-014

23/07/2020

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

CA-00038866-015

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038866-016

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038866-017

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038866-019

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038866-020

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00038866-021

23/07/2020

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

CA-00038866-022

23/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00038866-023

23/07/2020

The complainant worked for the respondent between March 2016 and May 2020. He was paid a salary of €28,000 per year and received bonus payments of €15,000. He asserts that there were unlawful deductions in pay, working time breaches and that he had no choice but to resign. The respondent denies the claims.

The complainant provided detailed submissions and statements in respect of each complaint. He also provided supporting documentation and made post-hearing submissions.

Evidence of the complainant

At the hearing, the complainant outlined that he was the only one not provided a laptop. He was only provided with an unsigned contract of employment after he resigned. He outlined that call centre employees had been transferring losses to him. He said that the respondent had deliberately moved non-profitable accounts to his portfolio, affecting his income. His targets were changed. He was also accused of fraud. The complainant said that he had to use his personal email address for work purposes. He referred to a concerted campaign against him by management and call centre employees. He had asked to be legally represented for the grievance investigation.

The complainant outlined that he was not granted any annual leave in 2019. He was impeded in attending his children’s school in November 2019 as he was not given calls in the county of the school.

The complainant outlined that he was initially engaged to work in Munster, but this was extended to cover all of Ireland. His initial package was €25,000 with a €15,000 bonus and this was changed in 2018. He was also paid travel and subsistence on the rate used in the civil service. His role was to visit customers during their 14-day cooling off period in order to retain customers, but the commission structure was changed. He said that he would receive a daily email of leads, but this was sent to his personal email.

The complainant outlined that he had also worked for the respondent in 2015 as a salesman on a commission only basis. He was not supplied with a contract when he started in March 2016, and then only signed the lone worker policy. He only saw the contract relied on by the respondent after he had resigned.

The complainant said that on the 31st July 2018, he received an email from the Customer Retention Manager which contained quotes from a contract. He replied to the email by saying that he did not have a contract. The witness also did not have a contract. The complainant asked the respondent for a contract because the employer was eroding his terms.

The complainant outlined that his working day started when he left his home, per EU law but he was not clear when his working day was to start. He asked the respondent for clarity about his start time, but it said that he should keep doing what he was doing. The complainant received the email with leads between 9am and 11am. In the email of the 10th July 2018, the respondent manager said that people should be hitting the doors between 11am to 2pm and 4pm and 7pm. He said that there were no working time records and it was not clear when his working day started.

The complainant said that he was assigned to Letterkenny two or three times and other long trips. He claimed mileage for these trips.

The complainant said that in 2017 he was locked out of his email twice and had to use his personal email address.

The complainant said that he was excluded from company news and general emails regarding regulatory compliance, for example an email about GDPR and working from home. He reported this to the manager, who said that the complainant should do nothing. The manager stated this in the email of the 19th March 2020, and this was forwarded to the sales team who were always remote. The direct recipients were the office staff who were then having to work from home because of the pandemic. The complainant said that he never received a similar email about his privacy duties even though he was always remote.

The complainant said that he requested a laptop as he was now phoning customers and not going door to door. Other team members had laptops and also had the advantage of direct access to customer accounts. The complainant said that in late 2019 and in 2020 he was taken out of the field and told to work from home. He was not given a reason for this change. They did not received training on using the phone and this was a different role to calling to customers. They now just had a mobile phone and customers did not trust them when they called, especially when they did not have basic customer information. He said that customers would more easily speak to you face to face.

In respect of annual leave, the complainant said that he was paid for all his annual leave. He had requested a day off in order to attend a school meeting at 4pm on the 19th November 2019. The respondent declined his request as a named colleague was already on leave, but he said that this should not make a difference as this colleague was Dublin-based.

The complainant said that the discrimination on family status was the respondent refusing the day off and then sending him the leads in county Clare. He said that this school meeting was important as it was a new school for his child. The complainant needed the full day off to prepare. He said that the leads provided to him on the 19th November 2019 were in Galway and Clare and these were also being dealt with by call agents at the same time. The complainant planned his journey and left early for Clare. He attended the school meeting and later contacted the remaining leads by phone. The complainant said that the line manager had approved half a day of leave and he had worked afterwards.

The complainant said that he was not informed of job opportunities with the respondent, and this was discrimination on grounds of race, i.e. him being Northern Irish. Roles in the Dublin office were not advertised. He had been hired through the recommendation of a senior manager and the Regional Manager role had been advertised but this could not be filled.

In respect of the incident of the 25th May 2018, the complainant said that he had been harassed by sales representatives of a named competitor. The complainant said that he had been told to remove this competitor’s metres without deactivation. He was not given a safety statement. The complainant said that he had been threatened by representatives of the competitor and had gone to the Gardaí. This competitor later stopped doing door to door calls.

The complainant said that he was not invited to the 2019 Christmas party while others were, and this amounted to discrimination.

The complainant outlined that he was excluded from quarterly meetings, as set out in the message of 2nd October 2019. He received the invitation emails but was told that he would be better off being in the field and given leads on the training days so he could not attend training.

In respect of monthly commission, the complainant outlined that the respondent increased his target to seven a day which was impossible to reach. He said that there had been a monthly percentage and it amounted to three or four a day. He did not think that seven would be the target for the phone agents as they also fielded inbound calls.

The complainant outlined that he was not paid mileage and was underpaid commission in December 2019. He said that this was on purpose and to get him to leave. He had wanted to return to his job but now he was getting the seven a day target and was not paid mileage and commission due. He said that he was making a scene about being kept at home and this was an attack on him. While others were working from home, this had less impact on people based in Dublin for mileage reasons.

The complainant outlined that the manager submitted a false mileage claim for the weeks of the 20th January and 2nd February 2020 to cover the December shortfall. The complainant said that the false claim was about setting him up and was fraudulent.

The complainant said that he received basic pay every week, commission once a month and mileage once a fortnight. Commission was paid with ordinary pay and mileage paid separately.

The complainant said that four wins a day was also impossible, so he was down commission.

In respect of the covid lockdown, the complainant said that he was not provided with broadband etc in order to work from home and his targets were not lowered. He was removed from the retention team. He said that he had received the January 2020 scorecard half way through the month so had to catch up. 

In respect of the manipulation of company leads, the complainant said that he had been assigned leads and call centre staff would take inbound calls. In respect of the email of the 15th April, he accepted that a named colleague had made an error. In emails of the 11th March 2020, the complainant had challenged a loss attributed to him. In the second email of the 11th March 2020, the complainant followed up on a win, and he did not know whether this had been attributed to him.

The complainant said that at this time, he received an abusive phone call from the line manager who falsely accused him about an interaction with a customer. The line manager had been informed who the right person was, and the line manager refused to listen to the recorded calls. The complainant was being accused of embezzlement and they did not trust him. The complainant believed that trust was gone and while there were rules and disputes, he was isolated. He said that he received the rules email after his resignation.

The complainant said that he resigned over the three accounts and the abusive phone call. He said that the phone call was abusive as the manager was roaring and shouting and accusing him of being abusive. The complainant described the manager as being loud. The complainant had just been assigned the lead and someone else was already dealing with it. The complainant said that he did not complain about the phone call as trust was gone at this stage.

The complainant said that he had no work contract so did not know whether he would get a worse backlash by complaining, and he did not know who to turn to. He was being called a fraud. He had wanted to be represented at the grievance investigation.

The complainant said that the email from the respondent of the 2nd June 2020 was defamatory as it stated that he was leaving because he could not adapt. This email was directed at him as he was the only one who left in May. The complainant said that he resigned by email in May 2020.

Cross-examination of the complainant

In cross-examination, the complainant said that they were assigned leads in the morning, and they then travelled to the locations, for example in Munster and further afield. He journey planned his day and started with the closest area. He could also be asked to deal with a specific customer issue. He had only signed the working alone document and was never provided with a contract of employment. He had requested annual leave or parental leave for the 19th November 2019. He had mentioned needing the leave in October 2019 and then wrote to apply for the leave. He was never provided with a grievance procedure and every time he raised issues the can was kicked down the road. He said that he was being assigned vacant houses that were not being marked off as vacant. He told the respondent that he was resigning at Christmas 2019 and had also resigned twice before. He met the Customer Retention Manager in Cork and while they had chatted away, nothing was done about his issues.

Evidence of the witness

The witness outlined that he had also worked for the respondent in the same role. He had been asked to sign a contract in 2018 which was about three years after he started. The manager had told him that everyone had to have a contract and that it would be backdated to his start date. When he started, the witness was told that they had to be at the first door at 11am and finish at 7pm. He said that there could also be a long travel time home and they were not paid for travel time. He said that the starting point for mileage was from his house if it was a long trip other than to Dublin.

The witness said that he had been invited to the 2019 Christmas party and had attended it. He was aware that the complainant was not invited and said that everyone else was invited.

The witness said that he had always had a respondent email address and never used a personal email address. He said that he resigned in August 2020 and was then locked out of his work email. He also had a case before the Workplace Relations Commission.

The witness said that he had not seen the jobs advertised for which the complainant could have applied for. He said that he was not provided with a laptop or any other IT support to work from home. This was the biggest issue. The role had changed from being door to door to being 80% on the phone, so it was crucial to have account information. He said that visibility on the leads was important to win the sale. It was also easier to track losses and wins more easily and managers had not been treated equally.

The witness said that he had continuously asked for a laptop and was promised it, but it never happened. He said that the emphasis was much more on phone even before the pandemic. He said that there were times that he was not given leads with phone numbers or addresses. He said that sometimes a customer would say they were not in contract to get the offer, but it would later turn out that they were actually in contract so not entitled to the new offer. He said that there were delays in paying mileage especially in 2020.

The witness said that he was generally invited to the quarterly meetings, but they might not happen every quarter. He said that he was also given bad leads. He said that leads were now distributed by six or seven people and no longer by senior staff, so there was an incentive to filter leads. The company said that they wanted the numbers as a whole to increase and did not care about the internal distribution. Some agents were allowed to offer a bigger discount to customers, say €150 when all he could offer was €100.

In closing, the complainant said that he would supply dates of when he could not take breaks in order for the respondent to reply. He said that there was no signed contract of employment and that discrimination had occurred.

Post hearing submissions

On the 7th October 2021, the complainant made post-hearing submissions. The complainant outlined that he was required to be at his first door at 11am and to make his last call at 7pm. He sought clarification from the respondent as to when his working day commenced. He did not receive a contract of employment and the start and end of his working day would have been stated in it. The complainant submitted that his working day commenced when he left his home and that he should also be paid for this. He set out his driving and working hours in dates in October, November and December 2019, included in the appendix.

The complainant submitted the daily email for these dates setting out the calls each staff member should make. The complainant was the only staff member on the copied message without a respondent email address.

The complainant also submitted email correspondence regarding him, and his colleagues being asked to make phone calls. On the 4th December 2019, they were asked to make 15 calls that evening in order to achieve at least three wins. On days, such as the 10th November 2019, the complainant was supplied with ‘driving’ and ‘phone call’ lists to contact; 20 in the former group and 30 in the latter. He submitted details of working hours and driving on dates in February and March 2020, set out below.

The complainant replied to the respondent’s post-hearing submissions. He outlined that the google document relied on by the respondent recorded the time the first call was completed and not when the visit started. He said that it could take from 5 minutes to 2 hours to complete a call. He said that the system did not allow the visit to be recorded until the customer had been dealt with. He outlined that lunch breaks were not adequately recorded in the time sheets. He outlined that the phone calls were hard to do as customers, especially family members of the person he had spoken with, were not sure of the veracity of his call.  

In submissions, the respondent outlined that the Payment of Wages claims were out of time as they related to pay due in 2019, when the complaints were only made in July 2020. It also did not accept that there had been any unlawful deductions, stating that a discrepancy was rectified, and some commission claimed by the complainant was not owed as he had not reached targets. It submitted that the complainant was not a mobile worker within the ambit of the Working Time Regulations. The complainant had not requested parental leave so did not fall within the ambit of that Act.

In respect of the claims pursuant to the Organisation of Working Time Act, the respondent outlined that the complainant received his daily rest period and took breaks during the day. His hours did not exceed the weekly maximum hours and his hours each day were flexible. In respect of the Terms of Employment (Information) claim, the complainant was supplied with contracts of employment for his two roles at the respondent. The respondent submitted that the requirement to work from home was not a change requiring notification as required by section 5 of the Terms of Employment (Information) Act as it arose from business needs and was in line with the flexibility clause in the contract of employment. The pandemic then required employees to work from home.

The respondent submitted that the complainant resigned from his employment and had not shown that the respondent had repudiated the contract of employment. The complainant had also failed to utilise the grievance process. He had a superb relationship with the line manager. The respondent denied that the complainant was discriminated against on grounds of race. In respect of the equal pay claim, the respondent submitted that the complainant did not do ‘like work’ with the cited comparator, the director. It was submitted that the complainant had sought the day off in November 2019 at short notice and this could not be accommodated for business reasons. The respondent asserted that it had not penalised the complainant under the Terms of Employment (Information) Act.

Evidence of the HR Manager

The HR Manager understood that the complainant had started in the Fields Sales team and moved over to the Retention team. A named manager would have given him a contract of employment. The complainant was a good performer, and the respondent was sorry to see him go. A mileage claim from December was missed and was paid later.

The HR Manager said that the respondent made appointments on performance, qualifications etc. The landlord role cited by the complainant was a short-term role and the person appointed remained in the retention team. While they were still on the road in late 2019, they required less door-to-door interaction with customers.

In cross-examination, the HR Manager said that she had checked the complainant’s file and the contract on file was for his initial role. She said that there were no redundancies at the respondent because of the pandemic.

Evidence of the line manager

The line manager outlined that he had a good personal and professional relationship with the complainant. The respondent was a multi-national workplace and the complainant being from Northern Ireland would not have influenced him. The complainant was a great performer with a good work ethic. It was important for the agents to hit targets as this affected the line manager’s own target. He needed the cooperation of the agents and to motivate them.

The line manager said that following an audit, he had met the complainant to sign the contract of employment. He said that this document had been lost through a clerical error.

The line manager said that the complainant would get upset and this was a target-based role with pressure. The line manager said that a December milage claim was missed and a commission was also not paid. The line manager tried to address this and offered him money for Christmas. He said that there was no intention to exclude the complainant from the Christmas party.

The line manager outlined that he prepared a win/loss account for each agent. They were calling door to door until November 2019 and the churn grew in December, so people worked from home to deal with the increased churn. The complainant had bad months in October and November but was performing again in December and January. Customers were text messaged in order to encourage them to phone the respondent.

The manager said that none of his team were provided with laptops in 2019, and one was provided to a named colleague. Laptops were provided in 2020 because of the pandemic and the plan was to give laptops to everyone. The line manager said that there was no redundancies and staff were still paid during the pandemic.

In cross-examination, the line manager said that he had travelled to Cork in order to meet the complainant and to have the contract signed. He could not say when this was. He referred to the email from the complainant of the 31st July 2018 and his own reply, where the contract was mentioned. The manager said that he could not remember cancelling the meeting which had been scheduled to sign the contract.

The line manager said that the Customer Retention Manager had signed off on the milage claim for February 2020 and this was done to correct a shortfall. This had not been his decision and was a gesture of good will.  The line manager said that he had thought that the complainant’s email was a company email and they had gmail-based addresses.

In respect of the day of annual leave, the line manager said that the target was a national target, so it did not matter where the person already allocated a day off was located. The line manager arranged local leads for the complainant so that he was able to attend the school meeting.

The line manager said that the complainant had brought up the issue of the three accounts in the middle of the month, so he would have done this in the monthly win/loss report. The line manager could not recall the phone call which the complainant said was abusive. The line manager could not recall the circumstances around his email withdrawing the ‘rules’. There were always arguments about leads and he supported the retention team. The complainant was never assigned leads to lose.

The line manager said that working from home (prior to the pandemic) was initially only planned for December 2019, and it was not their intention to put the complainant off the road. The respondent did not provide a new contract as this was not a permanent change. The intention had been to return people to the field but then there was the pandemic.

In closing, the respondent cited the preliminary arguments they had made. The Payment of Wages claim was out of time and the complainant was not a mobile worker within the definition of the Regulations. The complainant had never sought parental leave and the requirements of the Act were not met.

In post-hearing submissions, the respondent submitted time sheets and payslips. It outlined that the complainant was treated as a peripatetic worker, in line with the Directive. It referred to three two-week periods of the 1st to the 12th July 2019, the 21st October to the 1st November 2019 and the 9th to the 20th March 2020. It outlined that in the July 2019 weeks, the complainant was paid for travel time, and he had worked 40 hours, including travel time and rest breaks. The respondent outlined that the complainant was able to take rest breaks and did not complain about not receiving them. The respondent provides the spreadsheet of hours in the two March 2020 weeks, showing that the complainant worked 34 hours 43 minutes in the first week and 29 hours 3 minutes in the second week. The complainant made phone calls to customers in these weeks. The respondent submitted the spreadsheet for two weeks between the 21st October and the 1st November 2019, showing that the complainant worked for 30 hours 24 minutes in the first week and 24 hours 31 minutes in the second.

The complainant worked for the respondent between March 2016 and May 2020. He worked as a Field Sales Retention Agent, where he would call to customers of the respondent to persuade them to remain as customers when they indicated that they were switching providers (the period of ‘churn’). The complainant began his working day at home when he was sent leads to pursue. They could be close to him in Munster, although he sometimes travelled great distances, for example to Donegal.

The complainant has submitted employment rights complaints covering many aspects of his employment with the respondent. Each is addressed in turn. There are two sets of complaints pursuant to the Organisation of Working Time Act and the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations. While individual findings are made in respect of each complaint, for the sake of clarity, I address four general legal issues that arise within each set of complaints: whether the complainant was encompassed by Tyco, the burden of proof and the nature of a contravention in working time claims. Separately, I address whether the complainant was a mobile worker for the purpose of the Regulations.

Working time and Tyco

The complainant outlined that his working time should be calculated from when he left his home in the south of the country to drive to the first lead assigned to him by the respondent. He referred to asking the respondent whether this was working time and that this question was never answered.

The complainant referred to this arising from EU law and he is referring to the judgment of the Court of Justice of the European Union in CCOO v Tyco (C-266/14). I find below that the complainant’s working time is encompassed by the finding in Tyco, so that, because of the nature and contractual position of his role, his working time started when he travelled from his home to leads and until he returned home.

Section 1 of the Organisation of Working Time Act defines ‘working time’ as ‘any time that the employee is (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work, and “work” shall be construed accordingly.’ ‘Rest’ is defined as any time that is not work. ‘Work’ and ‘rest’ are, therefore, binary. Section 1 transposes Article 2(1) of the Directive (2003/88 and its now repealed predecessor Directive 93/104/EC). Per section 1, working time includes when an employee is at their employer’s disposal and performing work related duties away from their place of work.

Addressing the definition of ‘working time’ in the Directive, the Advocate General in Tyco, outlined that the definition of ‘working time’ contains three criteria. The first is a spatial criterion: to be at the workplace. The second being the authority criterion: to be at the disposal of the employer. Third is the professional criterion: to be carrying out their activity or duties. (paragraph 31)

In Tyco and in the parallel Matzak line of authorities, the CJEU jurisprudence evolved to address changing work patterns, for example, stemming from technological advances (allowing workers based exclusively in the field or on call), while preserving a unitary model of ‘working time’ (time being either working time or rest). See, generally, Deirdre McCann, Durham Law School ‘Travel time as Working Time: Tyco, the Unitary Model and the Route to Casualisation’ Industrial Law Journal, Volume 45, Issue 2 July 2016.

It is clear from Tyco that commuting to your ordinary place of work is not working time as the employee chooses where they live and what travel time they have. They are not doing work-related tasks, nor at their employer’s disposal.

Travel in cases of field work or peripatetic work is not commuting but an essential component of the role. A role that involves calling to customers to, for example, install an alarm (Tyco) or to persuade them to remain as a customer (the instant case) meets all three criteria as travelling to customers and between jobs are intrinsic parts of the role. The employee is ‘working’ as they are at the ‘disposal of the employer’ as the employer has sent them the work and the worker cannot use their time freely.

As cited by McCann, the Court of Justice in Tyco held, at paragraph 32 ‘The journeys of the workers … is a necessary means of providing those worker’s technical services to those customers. Not taking those journeys into account would enable an employer … to claim that only the time spent carrying out the activity of installing and maintaining the security systems falls within the concept of ‘working time’ … which would distort that concept and jeopardise the objective of protecting the safety and health of workers.’

Tyco is clear that other than in respect of the ‘special case’ of paid annual leave, the Directive does not touch on the right to be paid for any time deemed as working time. Rather, working time establishes whether the worker was able to avail of sufficient rest during the working day, between periods of work each day or each week and time off. Other than the right to paid annual leave, being paid for working time is addressed via statutes such as the Payment of Wages Act or the National Minimum Wage Act. These are national statutes, which do not transpose EU law, and where different definitions may prevail (for example the definition in section 8 of ‘working hours’ in the latter Act).

Tyco working time findings in the instant case

I find that the nature of the complainant’s role meant that travel from his home to the first lead assigned to him, then travel between leads and lastly, his travel from the last lead to his home all encompassed working time. I make this finding for the following reasons.

I find that it would significantly ‘distort and jeopardise’ the protections provided by the Organisation of Working Time Act and the Directive if the complainant’s working time did not include travel to the first customer and from the last lead. The complainant was based at his home and did not attend the respondent offices. He was assigned leads on a daily basis. They were generally in the south and west of the country, although there were occasions where he travelled to the north-west (where he stayed overnight in Letterkenny). The complainant used his car and claimed mileage (the last receipt for mileage in 2019, dated 8th January 2020, detailed that the complainant travelled 47,974 kilometres for work in 2019). He planned his journey and recorded the outcome of each client visit. I acknowledge that the respondent tailored leads to suit the complainant, for example on the 19th November 2019, giving leads in the same county and an adjoining one as the school.

The essence of the complainant’s role was to travel. He travelled to customers to persuade them to remain as customers. The evidence was that this face-to-face contact led to customers staying with the respondent. It was part and parcel of the respondent’s business to seek and keep customers. The complainant could be assigned leads over great distances and travelled to and from them throughout the day. Travel was an essential component of the complainant’s work and there were no regular or set routes.

Given these essential features, the protection provided by the Organisation of Working Time Act and the underpinning Directive would be distorted and jeopardised if such extensive travel was not included as working time.

Features such as the complainant planning his journey and using his own car are incidental, given that the complainant was obliged to call to the leads provided by the respondent. It is also incidental that this was always the business model and there was no closure of regional offices.

I note that the complainant asked the respondent when his working time started and whether this was from when he left his home. I note that the respondent accepted in post-hearing submissions that the complainant was a peripatetic worker. For the above reasons, I find that he was a peripatetic worker within the ambit of Tyco.

For completeness, I find that the complainant’s employment did not fall within the exemption provided at paragraph 1 of the Schedule to SI 21/1998. This provision transposes Article 17(2)(a) of the 1993 Directive and 17(3)(a) of the 2003 Directive. As found by the CJEU in Tyco, field workers such as the complainant do not travel to work, rather they travel for work. The exemption in paragraph 1 covers employees travelling, for example, to off-shore workplaces to commence work, and not peripatetic workers.

Organisation of Working Time – burden of proof

Section 25 of the Organisation of Working Time Act provides that the employer is required to prepare and keep records of working time. The records can be manual or electronic (see SI 473/2001). Section 25(4) of the Act provides that where there are no working time records, the burden of proof of showing compliance with the Act falls on the employer.

The burden of proof set out in section 25(4) was reflected in later jurisprudence of the Court of Justice of the European Union. In another case taken by the Spanish trade union CCOO, Federacion de Servicios de Comisiones Oberasv Deutsche Bank (C-55/2018), the Grand Chamber of the CJEU held that employers were required to maintain records in order to ensure that the Directive was effective. The CJEU in CCOO was also clear that where there are no records, the burden of proof lies squarely with the employer. It is for the complainant to particularise their case and in the absence of working time records, the burden falls on the employer to show compliance in respect of the day or week, depending on the nature of the alleged contravention. This is the approach across all Organisation of Working Time complaints and reflects the great difficulty a complainant would have in proving breaches in the absence of working time records.

In this case, there were no specific working time records. The complainant filled in Google Docs regarding the time and nature of each call. From this and in post-hearing documentation, the respondent extrapolated working time from the recorded visits and the estimated travel time to and from leads. The complainant gave evidence regarding his working time on particular days. I am grateful for the considerable work done by the parties in this regard. I have compiled the days cited by the parties in an appendix to this decision. The evidence relating to each claim is assessed below.

The parties submitted documentation about different days and weeks. The only conflicting material related to the 12th December 2019, with the parties provided differing end times. I note that this was at the time the complainant was supplied with house calls and phone calls to make. It was a very busy time with customers changing provider. I note that the complainant’s account was more contemporaneous and I, therefore, prefer this account of his finish time on that day.

Contraventions and the cognisable period in working time

The Organisation of Working Time Act transposes EU Directives which, on grounds of health and safety, regulate working time (initially Directive 93/104/EC and then Directive 2003/83/EC). It reflects Article 31 of the Charter of Fundamental Rights: ‘Fair and just working conditions: 1. Every worker has the right to working conditions which respect his or her health, safety and dignity.  2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’

The Organisation of Working Time Act sets out various contraventions and complaints must be referred to the Workplace Relations Commission within six months of the contravention, extendable to 12 months with reasonable cause. The nature of the contravention and the start of the cognisable period varies depending on the contravention in question. A complainant is required to particularise their complainant, so that the respondent knows the case they have to meet (i.e. which records to produce).

Section 11 of the Organisation of Working Time Act regulates rest breaks between days of work. It requires a rest period of at least 11 hours between periods of work. A contravention of section 11 takes place on the day itself, so a complaint must be referred within six months of this date, unless there is an extension for reasonable cause.

Section 12 regulates working time during the working day. It requires rest breaks of 15 minutes for a shift of up to 4 hours and 30 minutes, and a 30-minute break over a 6-hour shift. Again, a complaint must be referred within six months of this day unless there is an extension for reasonable cause.

Section 13 addresses weekly rest periods, i.e. a rest period of 24 hours over a 7-day period. It is the entitlement to a whole day off in a week. A complaint must be referred within six months of the last day of the week in question unless there is an extension to 12 months for reasonable cause.

Section 15 provides that the employer shall not permit the employee to work an average of over 48 hours per week. The average weekly hours are calculated over a reference period. This is generally four months, although a six-month or a two-month period applies in certain circumstances. What section 15 prohibits are excessive hours being embedded into employee’s working life. While technology, work demands and client expectations can certainly lead to a 48+ hour working week, the Directive and Act address the deleterious long-term health and safety consequences of regular excessive hours. This is achieved through the calculation of average weekly hours over reference periods. This allows for busy periods but does not allow working patterns that are continuingly excessive. A busy period must be followed by a less intense period.

In a reference from the French courts (C-254/18), the CJEU was clear that the essence of the protection was that a worker did not work an average in excess of 48 hours per week calculated over the reference period. The judgment emphasised the need to ensure the effectiveness of the protections provided by the Directive including straddling across reference periods.

Reflecting the CJEU’s emphasis on effectiveness, I consider two four-month reference periods in this case: February to May 2020 and October 2019 to January 2020. Both reference periods fall within the six-month cognisable period as the effectiveness required by the Directive and Act mean that the entirety of the earlier reference period also falls within the cognisable period, in line with the interpretation of the CJEU in C-254/18. Every week in the six-month cognisable period must form part of a reference period in order to verify compliance. This matter is addressed in the specific finding below.

‘Mobile worker’ Regulations

The working time of ‘mobile workers’ is subject to Directive 2002/15/EC, transposed by S.I. 36/2012 (as amended). The 2012 Regulations address working time for mobile workers, be they employed or self-employed. The Directive and transposing Regulations apply to ‘mobile workers’ to whom Council Regulation 561/2006 and the AETR apply. (AETR - European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport). The Council Regulation applies to drivers of heavy goods vehicles over 3.5 tonnes or buses carrying nine or more people, subject to exceptions. It is, therefore, clear that the complainant was not a mobile worker within the ambit of the 2012 Regulations. While he drove a great deal for work, he drove a car and not either a lorry or a bus. It follows that the complaints pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations are not well-founded.

CA-00038866-001

This is a complaint pursuant to the Payment of Wages Act in respect of an unlawful deduction of wages. It includes alleged deductions of €1,250 owed in October 2019 and €250 owed in December 2019.

The complaint was submitted to the Workplace Relations Commission on the 23rd July 2020. The Payment of Wages Act provides a cognisable period of six months, so that a contravention must have occurred within six months of the complaint being submitted. This is extendable to 12 months with reasonable cause. In this case, the contraventions fell when each payment of wages was made. The cognisable period in this case is the six-month period prior to the 23rd July 2020, i.e. 24th January to 23rd July 2020.

The respondent acknowledged that there was a shortfall in December 2019 but that this was rectified. This was put through as an expenses claim. The complainant said that this was fraud and an attempt to, effectively, frame him. My assessment of the evidence is that the claim was put through as an expense as a way to ensure that the complainant was paid quickly for the shortfall. There was never any allegation that the complainant had done anything wrong.

These monies were due and owing to the complainant and they were paid. The respondent has not provided an explanation for the ‘sick pay’ deduction of €215.38 on the 27th September 2019. The complainant outlined this was likely a day when his car broke down. In the absence of an explanation from the respondent, I extend time to allow for redress in the amount of €215.38.

The other claimed deductions relate to unpaid commission. As set out by the respondent, the complainant had not earned this commission and so these monies were not due to him. I appreciate that the complainant was dissatisfied at changes to commission targets, but this does not make a shortfall to reach the new targets ‘properly payable’ as wages.

As the wages were not ‘properly payable’ to the complainant, their non-payment did not amount to an unlawful deduction. There was, therefore, no contravention of the Payment of Wages Act in respect of commission not earned.  

CA-00038866-002

This is a complaint pursuant to the Payment of Wages Act where the complainant asserts that he was not paid all the wages due to him in the amount of €3,000. In his email of the 13th October 2020, the complainant indicated that this was for deductions made on the 25th October and the 20th December 2019.

I note that the deductions relate to commission not earned. I appreciate that the complainant was dissatisfied at changes to commission targets, but this does not make a shortfall to reach the new targets ‘properly payable’ as wages. I note that the complainant was dissatisfied with changes in work practices which meant that he was on the phone and not calling to customers in person, making it harder for him to earn commission. The commission would have to be due for it to be ‘properly payable’ and for there to be a contravention. The commission was not earned, so there was no contravention. It follows that the complaint is not well-founded.

CA-00038866-004

This is a complaint pursuant to the Organisation of Working Time Act in respect of not getting daily rest periods (section 11). The complainant cited that he worked 40 hours per week as well as travel time of up to four hours a day.

Section 11 requires that an employee gets a daily rest period of at least 11 hours in each period of 24 hours they work for an employer. I have found that the complainant’s travel time to the first lead and from the last lead constitute working time. The respondent submitted spreadsheets of the complainant’s visits to customers, working time and estimated travel time. Where there are no records, the burden of proof rests on the employer to show compliance with the Act (section 25(4)). The cognisable period for this complaint is the six months prior to the lodging of the complaint, i.e. the 24th January to the 23rd July 2020.

The complainant outlined that he was sent leads between 9am and 11am and that he was expected to call to leads between 11am and 2pm, and between 4pm and 7pm. I have compiled in the appendix the information provided by the parties.

An example of a contravention of section 11 would be an employee whose working time commenced at 7am and which lasted to 8pm or beyond. In this case, there is no indication of a day where the complainant did not get 11 hours rest, i.e. worked no more than 13 hours, including travel time. There was, therefore, no contravention of section 11.

CA-00038866-005

This is a complaint pursuant to the Organisation of Working Time Act in respect of not getting breaks (section 12). The complainant stated that he did not receive sufficient breaks.

I have found that working time in the complainant’s case commenced when he left his home to travel to the first lead and until he reached his home from the last lead.

The respondent correspondence refers to the complainant and his colleagues being asked to be at their first door at 11am and to take a break in the middle of the afternoon. The respondent suggested that the complainant and his colleagues finish their last call at 7pm.

The evidence shows that the complainant was able to take some rest breaks during the day. While the records indicate that there were ‘lunch’ breaks, they do not indicate when those breaks ended. The complainant would have had to travel to the next house call, travel time that could not be included as a break. The complainant outlined and particularised contraventions. I find, therefore, that there was a contravention of the Organisation of Working Time Act. To the extent particularised by the complainant, I award redress of €1,500.

CA-00038866-006

This is a complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations. For the reasons set out above, the complainant was not a mobile worker within the ambit of the Regulations and the claim is, therefore, not well-founded.

CA-00038866-007

This is a complaint pursuant to the Organisation of Working Time Act regarding a breach of the weekly maximum number of hours (section 15).

Section 15 provides that an employee shall not work in excess of 48 hours per week calculated over a period of four months. This takes into account shift work or roles that have particularly busy periods, requiring long hours in excess of 48 hours. What is a contravention is having excessive hours continuingly, without any less onerous periods. 48 hours in a five-day week equates to 9 hours and 36 minutes per day. So, the daily working time leading to a contravention of section 15 is less than that for a contravention of section 11. The cognisable periods also differ.

Section 15 provides that weekly working time is generally to be assessed over four-month reference periods. In this case, the employment ended in May 2020, so there is a four-month reference period from February to May 2020 (four months). The cognisable period is six months per section 41 of the Workplace Relations Act, so this encompasses a second working time reference period for section 15: January 2020 back to October 2019. A week where the complainant worked more than 48 hours in January 2020 must be assessed against the whole of the applicable reference period, in this case back to October 2019.

The respondent supplied records in relation to part of the cognisable periods. They do not cover the entire period. The complainant outlined and particularised breaches of section 15. Given the amount of travelling the complainant did and this being working time, I find that the employer bore the burden of proof as the records are incomplete. I find that the employer has not demonstrated compliance. To the extent the contravention was particularised by the complainant, I award redress of €1,500.

CA-00038866-008

This is a complaint pursuant to the Organisation of Working Time Act regarding not being informed of start and finish times in advance. This is a complaint in respect of section 17 of the Organisation of Working Time Act.

Section 17 envisages that a contract of employment or collective agreement provide an employee with their start and finish times of work. If there are no such normal or regular hours, the employer must provide the employee with 24 hours of notice of the start and finish times of their working day. There is an allowance for unforeseen circumstances, and it is sufficient for such notification to be placed in a conspicuous position in the workplace.

I have found as fact that the complainant was not supplied with a statement of the terms of his employment. One document relied upon by the respondent states that the complainant’s working day commenced at 9am and finished at 5.30pm; the other, that it was 12pm to 9pm. In submissions, the respondent outlined that the complainant was flexible and could choose his start time depending on the leads assigned to him. The respondent referred to Google docs completed by the complainant for the 11th and 12th December 2019 as examples of flexibility. In his submission, the complainant refers to not being sure of his working hours and that he was expected to be on the doors between 11am and 7pm. The uncertainty relates to whether travel time to the first door and from the last door constituted working time. I have found elsewhere that this was working time.

In respect of this complaint, the complainant had a regular working pattern even if it was not provided to him in writing. The complainant was flexible about what time he commenced working and this was when he left his home to the first door. While the respondent provided leads, they did not provide assigned times to visit each dwelling. This means that there was no requirement to give the complainant at least 24 hours’ notice of their start and finish times on a particular day. There was, therefore, no contravention of section 17 as the notification provided by that section was not required in these circumstances.

For these reasons, I find that the complaint of a contravention of section 17 of the Organisation of Working Time Act is not well-founded.

CA-00038866-010

This is a complaint pursuant to the Terms of Employment (Information) Act regarding not receiving a statement of terms of employment. Having considered the evidence, I find that the complainant was not provided with a statement of the terms of his employment, as required by section 3 of the Terms of Employment (Information) Act.

The respondent outlined that the complainant worked in two roles and was supplied a statement in 2017. It submitted two documents, neither of which were signed by either the complainant or the respondent. I note that there was to be a meeting in 2017 in the south of the country, but this was cancelled. I find that this was when the respondent intended to provide the statement to the complainant but did not do so because the meeting was cancelled. There was no follow-up meeting, and the statement was never provided. I note that the complainant was clear in later communication that he had not been provided with a statement and was the only team member not to have one. This was never challenged by the respondent.

I, therefore, find that the complaint is well-founded, and I award the complainant €3,300 as redress for the contravention (the equivalent of four weeks’ pay).

CA-00038866-011                                      

This is a complaint pursuant to the Terms of Employment (Information) Act regarding a change to the complainant’s terms of employment. This related to no longer working in the field and having to work from home in late 2019 (i.e. before the pandemic). The respondent outlined that flexibility was part of the contract of employment, so notification was not required.

Section 5 of the Terms of Employment (Information) Act requires an employee to be informed of a change in their terms of employment within one month of the change coming into effect. Here the issue relates to the complainant’s ordinary place of work, one of the requirements of section 3(1)(c) of the Act.

Having considered the evidence, I find that the change introduced in late 2019 did not require notification as it was a temporary measure which only lasted a short time. I appreciate that the complainant found it difficult to deal with customers on the phone rather than in person, for example, because he did not have access to the database. The complainant was later able to return to the road. Of course, house visits ended following the public health measures introduced to combat the spread of Covid-19. Such a change did not require notification under section 5, i.e. notification of now having to work from home.

For these reasons, I find that the complaint made pursuant to section 5 of the Terms of Employment (Information) Act is not well-founded.

CA-00038866-012

This is a complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations regarding the employer not keeping statutory employment records. For the reasons set out above, the complainant was not a mobile worker within the ambit of the Regulations and the claim is, therefore, not well-founded.

CA-00038866-013

This is a complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations regarding not being notified of the Regulations. For the reasons set out above, the complainant was not a mobile worker within the ambit of the Regulations and the claim is, therefore, not well-founded.

CA-00038866-014

This is a complaint pursuant to the Terms of Employment (Information) Act regarding not being supplied with a statement of core terms. Section 3(1A) of the Act requires an employer to provide an employee with a statement of the core terms of their employment within five days of the employment commencing. This includes information about the employee’s normal hours.

Section 3(1A) came into force on the 4th March 2019 and applies to employments which commenced on or after that date. The complainant’s employment commenced prior to the 4th March 2019.

Section 6 of the Act provides that an employee whose employment commenced prior to the 4th March 2019 may request a statement of core terms and that the employer must provide this within two months of the request being made to it. A failure to provide the statement is a contravention of section 6 and redress may be awarded per section 7.

Section 6 is what applies to existing employment relationships at the coming into effect of either section 3 or section 3(1A). There are few employments still in being which began before the 16th May 1994, the commencement day of section 3(1). Far more employments are still in being which commenced prior to the 4th March 2019, the commencement of section 3(1A).

The right to request a statement of core terms in accordance with section 6 is applicable to employment relationships already in being on the 4th March 2019 and is concomitant to the obligation to provide the statement of core terms to employment relationships which commenced after that date. Of course, in the case of an existing employment relationship which commenced prior to the 4th March 2019, an employer who had provided a section 3(1) statement would have met all the obligations in respect of section 3(1A).

Elsewhere, I have found that the employer did not provide the section 3 statement and I have awarded redress. The complainant was clear during the employment relationship that, unlike his colleagues, he did not have a contract (see his email of the 31st July 2018). The complainant, however, did not specifically request a statement of his core terms after the 4th March 2019. As there was no specific request for a statement of core terms, there was no contravention of section 6, and the complaint is not well-founded.

CA-00038866-015

This is a complaint pursuant to the Terms of Employment (Information) Act on the basis that the statement of core terms deliberately contained false or misleading information. This is a complaint referred to adjudication.

Two types of complaint can be brought to the Workplace Relations Commission in respect of the statement of core terms. The first, dealt with above, is the failure to provide one either within five days for new employees or within two months to employees who began their employment prior to the 31st March 2019, at their request. The second type is the complaint relating to the statement of core terms providing ‘false or misleading information’.

For clarity, this latter type of complaint ‘deliberately contain false or misleading information’ is not the offence listed in section 6B of the Terms of Employment (Information) Act. An adjudication officer clearly does not have jurisdiction to determine that an offence has been committed.

The adjudication officer does, however, have jurisdiction to determine whether a contravention of section 3(1A) occurred and what the redress should be, in accordance with section 7. This encompasses situations where the statement provided contains information that is false or misleading or both. This arises where a statement of core terms has been provided.

No statement of core terms was provided in this case. There cannot, therefore, be anything false or misleading about the statement. As found elsewhere, the complainant did not request a statement of core terms. It follows that this complaint is not well-founded.

CA-00038866-016

This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned in emails sent to the respondent in May 2020. In the email of the 14th May 2020, the complainant states that he would not be accused of being involved in fraud or embezzlement. He objected to accounts being changed into his name or out of his name without his knowledge. He stated that a full investigation would establish the truth. He stated that this was constructive dismissal. In its reply, the respondent denied the allegations and asked the complainant to reconsider his resignation. It offered to investigate the matters raised by the complainant.

The complainant set out his reasons for resigning in the email of the 18th May 2020. This refers to not having a contract and discrimination. He stated that he was a dumping ground for other staff members’ failures and a victim of a hate campaign. He said that he would not be following the complaints procedure as it would leave him in a deeply prejudiced position and would be a pointless exercise. He requested a copy of the investigation which had been carried out the week before.

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act envisages two types of dismissal where the employee resigns from their employment. The first type of constructive dismissal arises from a repudiatory breach of the contract of employment, for example a breach so serious to indicate that the employer has repudiated the contract of employment. This could entail a serious breach of health and safety and a significant breach of the term of trust and confidence. The second type of constructive dismissal is that it was reasonable for the employee to resign, for example where an employer has significantly failed to investigate a grievance, leaving the employee with no option but to resign. The types of constructive dismissal are distinct tests. While a constructive dismissal claim could be deemed unfair on applying both definitions to the evidence, a claimant need only meet one definition of constructive dismissal. The statute does not provide for a fused overarching test for constructive dismissal.

Considering the evidence in this case, it is clear that the complainant was dissatisfied with many aspects of the role. There was the longstanding issue of his contract and his access to IT equipment and resources. The role changed in 2019 to making calls from home and then he returned to the road, until the pandemic hit. The respondent contacted customers both by visiting them and by calling them. There was some overlap, and this caused tension. This worsened in 2020, leading to the manager to issues ‘rules’ for staff members to follow (an email later withdrawn).

I find that the respondent did not commit a breach which repudiated the contract of employment. Even if the complainant was correct that leads were either taken off him or losses wrongly allocated to him, the complainant did not avail of the opportunity to have this matter investigated. If it was a matter of breach of trust and confidence, the reasonableness of the complainant’s actions is relevant. I note the tenor of the emails from the HR Manager and the Head of Retention; they sought to persuade the complainant to change his mind and for these matters to be addressed. I note the messages with the line manager, which showed their good relationship, despite not agreeing with the complainant’s allegations. Taking this evidence as a whole, there was no repudiatory breach of contract.

The complaint does not meet the second ‘reasonableness’ test as he did not avail of the process offered to him by the respondent. The complainant could have raised the issues in detail and allowed the respondent to investigate them and to make findings. There was a process to avail of and the complainant did not do so. The complainant opted not to, and he cannot, therefore, meet this test of constructive dismissal.

Having made these findings, I dismiss the complaint of unfair dismissal.

CA-00038866-017

This is a complaint pursuant to the Unfair Dismissals Act. The only complaint that can be heard under the Unfair Dismissals Act is whether or not the dismissal was unfair. This has already been addressed in the preceding complaint finding. The within complaint is a duplicate and I, therefore, dismiss this claim of unfair dismissal.

CA-00038866-019

This is a complaint of discrimination and victimisation pursuant to the Employment Equality Act on grounds of race and family status in respect of conditions of employment and promotion. The complainant asserted that there was discrimination on grounds of his being from Northern Ireland. The family status ground arose in the context of his application for leave to attend a school meeting. The respondent denied the claims of discrimination and victimisation.

Section 85A of the Employment Equality Act requires that a claimant present facts of such significance that raise an inference or presumption of discrimination. What counts as ‘facts of such significance’ vary according to the facts of the case. The Labour Court case law sets out (Mitchell, Valpeters etc) that where the relevant facts are within the exclusive or near-exclusive knowledge of the respondent, then the presumption is quickly raised. ‘Mere assertions’ of discrimination are not sufficient where the claimant can be expected to ascertain facts that indicate causation, i.e. that show that any particular act was ‘on grounds of’ the complainant’s race or family status.

Given the extensive course of dealing between the parties and their well-aired differences, this is a case where the complainant can be expected to ascertain facts the demonstrate causation, i.e. that the acts were on grounds of either race or family status. The complainant has not presented any information that suggests that any of the acts complained of were done on grounds of either his being from Northern Ireland or his family status. It is not possible to infer that any of the respondent’s actions were anything to do with these grounds. I find that the complainant has not established a prima facie case of discrimination.

Victimisation occurs when a complainant is penalised for seeking to assert a right afforded to them by the Employment Equality Act. I find that there is no evidence that the respondent took any step to retaliate against the complainant for raising discrimination or for the making of this complaint.

CA-00038866-020

This is a complaint pursuant to the Employment Equality Act in respect of equal pay on grounds of race and family status, citing the respondent directors as comparators. I accept the respondent’s submission that the directors were not engaging in ‘like work’ to the complainant. The other members of the fields team were not cited as comparators. A colleague gave evidence for the complainant and while he referred to differential treatments (the Christmas party and access to a laptop), there was no evidence that the complainant was paid less than his colleagues on the fields team (including the witness). It follows that I find that there was no breach of the obligation of equal remuneration in respect of the complainant.

CA-00038866-021

This is a complaint of penalisation pursuant to the Parental Leave Act. Section 16A of the Parental Leave Act prohibits the penalisation of an employee for seeking to exercise or for exercising a right under the Act. Penalisation can include unfair treatment, unfavourable changes to conditions and dismissal.

As set out in CA-00038866-023, the complainant was not seeking parental leave for the day of annual leave on the 19th November 2019. There was no written request for parental leave. While the complainant was seeking a day of leave to attend a school meeting, this does not constitute an employee seeking to exercise a right under the Parental Leave Act. It follows that there can be no penalisation in contravention of the Parental Leave Act.

CA-00038866-022

This is a complaint of penalisation pursuant to the Terms of Employment (Information) Act. The complainant informed the respondent that he had not received a contract of employment or statement of the terms of his employment. He did so, for example, when the respondent emailed all staff to inform them of changes, for example to restrictive covenants.

I have addressed the issues raised by the complainant across the within complaints, including making awards of redress in his favour. There is, however, no evidence of penalisation for invoking a right under the Terms of Employment (Information) Act. The respondent did not reply to the complainant when he raised his not having a contract. I find that the contraventions that did occur in this case were not acts of penalisation in respect of the Terms of Employment (Information) Act. The complaint is, therefore, not well-founded.

CA-00038866-023

This is a complaint pursuant to the Parental Leave Act regarding not receiving an entitlement to parental leave. This relates to the events of the 19th November 2019 when the complainant sought time off to attend a school meeting. I accept that the complainant had mentioned this to the line manager in October 2019 and the formal written request was made on the 12th November 2019. The respondent did not approve the time off as another colleague was working. The respondent said that even though this colleague was Dublin-based, the field team had a national target to meet and could not accommodate two staff being off. In the end, the respondent approved half a day’s annual leave, although the complainant followed up on leads in the evening.

It is clear that the events of the 19th November 2019 relate to the complainant’s wish to take time off. While it was to attend the school meeting, this was annual leave and not parental leave. Parental leave involves a change to working patterns to allow time to look after children. It is generally not a once-off day of leave (unless on force majeure grounds or, of course, could involve a regular day’s leave in the working week). The statute provides that a request for parental leave must be made in writing as soon as practicable and not later than six weeks before the leave is to commence. There was no such notice in this case.

It follows that there was no breach of the Parental Leave Act as the complainant did not, in fact, seek parental leave and the notice provision in section 8 was not complied with. This complaint is, therefore, not well-founded and I make no directions arising from the complaint.

Overall outcome

I have made findings above in respect of each complaint. For ease of reference, I summarise the complaints deemed well-founded, in part or in full, and the redress to be awarded. One Payment of Wages complaint was well-founded, and I award redress of €215.38 (001). I award €1,500 for a contravention of section 11 of the Organisation of Working Time Act (005). I award a further €1,500 for a contravention of section 15 of the Organisation of Working Time Act as the respondent did not have the records to demonstrate compliance (007). I award €3,300 for the failure to provide a statement of terms as required by section 3 of the Terms of Employment (Information) Act (010).

CA-00038866-001

I decide that the complaint made pursuant to the Payment of Wages Act is, in part, well-founded and I award redress of €215.38.

CA-00038866-002

I decide that the complaint made pursuant to the Payment of Wages Act is not well-founded.

CA-00038866-004

I decide that this complaint pursuant to the Organisation of Working Time Act is not well-founded.

CA-00038866-005

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and I award redress of €1,500.

CA-00038866-006

I decide that this complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations is not well-founded as the complainant was not a mobile worker within the definition of the Regulations.

CA-00038866-007

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and I award redress of €1,500.

CA-00038866-008

I decide that this complaint of a contravention of section 17 of the Organisation of Working Time Act is not well-founded.

CA-00038866-010

I decide that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and I award redress of €3,300.

CA-00038866-011

I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well-founded for the reasons set out above.

CA-00038866-012

I decide that this complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations is not well-founded as the complainant was not a mobile worker within the definition of the Regulations.

CA-00038866-013

I decide that this complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations is not well-founded as the complainant was not a mobile worker within the definition of the Regulations.

CA-00038866-014

I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well-founded for the reasons set out above.

CA-00038866-015

I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well founded for the reasons set out above.

CA-00038866-016

I dismiss the complaint of unfair dismissal for the reasons set out above.

CA-00038866-017

I also dismiss this duplicate complaint of unfair dismissal for the reasons set out above.

CA-00038866-019

I decide that the complainant has not established a prima facie case of discrimination or victimisation in breach of the Employment Equality Act.

CA-00038866-020

In respect of this Employment Equality complaint, I decide that there was no breach of the obligation of equal remuneration in respect of the complainant.

CA-00038866-021

I decide that the complaint of penalisation pursuant to the Parental Leave Act is not well-founded.

CA-00038866-022

I decide that this complaint of penalisation pursuant to the Terms of Employment (Information) Act is not well-founded.

CA-00038866-023

I decide that the complaint pursuant to the Parental Leave Act is not well-founded and I make no directions arising from the complaint.

Organisation of Working Time Act / ‘working time’ / CCOO v Tyco C-266/14) / cognisable periods

Terms of Employment (Information) Act / obligation to provide a statement / section 6 existing contracts of employment / ‘false and misleading’

Date

Complainant information

Respondent information

Additional information

01/10/2019

3.45 hrs to first lead / drove 480 km

03/10/2019

1.40 hrs to first lead / drove 315 km

08/10/2019

1.50 hrs to first lead / / drove 305 km

10/10/2019

2 hrs to first lead / / drove 310 km

16/10/2019

2 hrs to first lead / drove 310 km

21/10/2019

10.30 to 19.22

Lunch of 35 mins

22/10/2019

10 to 20.43

Lunch of 58 mins

23/10/2019

9.40 to 18.50

Lunch of 45 mins

24/10/2019

11.01 to 19.16

Lunch of 48 mins

25/10/2019

11.10 to 18.10

Lunch of 30 mins

29/10/2019

10.35 to 18.06

Lunch of 58 mins

30/10/2019

10.01 to 17.55

Lunch of 30 mins

31/10/2019

10.35 to 18.53

Lunch of 1.09 hrs

01/11/2019

10.47 to 18.34

Lunch of 2.09 hrs

10/11/2019

20 house calls across Donegal and 30 phone calls

11/11/2019

1.10 hrs to first lead / drove 210 km

18/11/2019

11.31 to 17.49 / Lunch at 15.35 to 16.18

25/11/2019

1.40 hrs to first lead / drove 305 km

02/12/2019

03/12/2019

04/12/2019

15 mins to first lead / drove 205 km

29 house calls in Limerick and 15 phone calls

10/12/2019

3.35 hrs to first lead / drove 440 km

11/12/2019

2.30 hrs from last lead / drove 390 km

9.47 and his last at 17.33

29 phone calls / Lunch at 14.13

12/12/2019

Last call at 18.36

10.54 to 17.01

No travel time either way and Lunch at 15.19

12/02/2020

9.36 to 19.04 hrs / 1.10 hrs to first lead & 1.30 hrs from last / 9.36 to 19.04 no break

27 house calls

22/02/2020

Complainant says that he worked overtime

27/02/2020

9.02 to 18.10 hrs / 2 hrs to first lead / drove 295 km

No rest break recorded

28/02/2020

7 house calls

03/03/2020

1.40 hrs to first & 1.30 hrs from last / drove 305 km

31 house calls

09/03/2020

10.19 to 18.27

Lunch of 49 mins

10/03/2020

11.01 to 18.19

Lunch of 40 mins

11/03/2020

9.20 to 18.09

Lunch of 43 mins

12/03/2020

10.53 to 18.33

Lunch of 1.19 hrs

13/03/2020

11.22 to 18.23

Lunch of 44 mins

16/03/2020

10.04 to 18.14

Lunch of 51 mins

18/03/2020

10.36 to 18.23

Lunch of 25 mins

19/03/2020

10.31 to 18.27

Lunch of 43 mins

20/02/2020

11.10 to 18.29

Lunch of 10 mins

24/03/2020

8.31 to 16.47 / 2 hrs to first & 1.30 from last / drove 315 km

Lunch recorded at 12.41