ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00031563
Parties:
| Complainant | Respondent |
Parties | Dumitru Sehleanu | Cordelia Foods Limited |
Representatives | Breda Stanley Pickford Citizens Information Centre | Raffaele Capalupo |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00041846-001 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041846-002 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00041846-003 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041846-005 | 07/01/2021 |
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-00041846-006 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041846-007 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00041847-001 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041847-002 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00041847-003 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041847-005 | 07/01/2021 |
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-00041847-006 | 07/01/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041847-007 | 07/01/2021 |
Date of Adjudication Hearing: 15/02/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 7th January 2021, the complainant referred two sets of complaints to the Workplace Relations Commission. They were scheduled for adjudication on the 15th February 2022. The hearing took place remotely.
The complainant attended the hearing and gave evidence. The complainant was represented by Breda Stanley Pickford, Citizen’s Information. Massimo Caira and Marco Matozzo were witnesses for the respondent, who was represented by Raffaele Capalupo. The parties made post-hearing submissions.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was a delivery driver for the respondent, a wholesale importer of foods. He claims wide-ranging employment law breaches; the respondent denies the claims. |
Summary of Complainant’s Case:
The complainant outlined that he worked for the respondent between the 6th February 2017 and the 10th August 2020. He was paid €550 per week for a 65 hour week. His role was to load the delivery van and drive long distances to deliver product to premises across the country. He was later assigned other tasks for which he did not have a Safe Pass or safety training. He said that he worked long hours and was not able to take breaks. He spoke about having to relieve himself in a bottle because he could not take a break. The complainant outlined that he was constructively dismissed because of his working conditions. The complainant outlined that there were contraventions of the National Minimum Wage Act. He had sought a statement on the 22nd August 2020. He was paid below the national minimum wage because of his long hours. This including the hours of driving but also the time spent completing paperwork and managing payments after each day’s deliveries. The complainant made a claim pursuant to the Organisation of Working Time Act of working excessive hours. He worked 66 hours per week. There were weeks he worked on Saturdays. He also claimed excessive hours per SI 36/2012, which regulates the working time of mobile workers. Per the Organisation of Working Time Act, the complainant claimed not getting daily rest breaks. The complainant also claimed penalisation for raising health and safety issues. He was penalised by being given additional duties and deliveries. The complainant outlined that he did not receive a contract of employment until 2018. His routes consisted of 7 to 8 hours of driving, without taking account of traffic congestion. He had paperwork to do at the end of each day. He raised that there was no grievance procedure, no payslips and no account of overtime. The complainant outlined that he fell in work on the 7th August 2019 while packing shelves. The respondent refused to call an ambulance and told him not to say that it was an accident at work. He was off for a few days, and this was deducted from his annual leave. The respondent had agreed that the complainant could end work at 4pm from January 2020 but did not follow through on this. The complainant also raised food safety issues as the van’s fridge was broken. He outlined that his workload increased as a result of raising these issues. The complainant outlined that he worked through March and April 2020 doing deliveries but was not supplied with PPE. He outlined that interpersonal relations deteriorated in 2020 and he was belittled by a manager on the 10th August 2020 and he resigned. In follow-up submissions, the complainant submitted photographs of him counting cash late in the evening, this cash being the takings of that day. He submitted bank account records, showing inward payments other than his monthly pay, i.e. to show additional Saturday work. The complainant pointed to being asked to come in early, for example at 6.30am. |
Summary of Respondent’s Case:
The respondent submitted that the hours of work claims were out of time and there was no reasonable cause to allow an extension of time. The complainant’s hours were 7am to 5pm and the respondent could not accommodate his request to finish at 4pm. The complainant was supplied with clothing and equipment in order for him to perform his role, including additional protections provided in the pandemic. At his choice, the complainant was laid off at the early part of the pandemic. The complainant did not raise a health and safety issue on his return to work on the 20th May. The respondent outlined that in June 2020, the complainant’s pay increased from €115 per day to €120 per day. The complainant was out on the road and could take the 45 minutes’ break he was entitled to. The respondent stated that the complaints regarding working time breaches were fabrications and false. The respondent referred to van tracking data which showed that the complainant did not work beyond his hours. There were only 6 occasions in 2020 when the complainant worked later than 5pm. The complainant worked 7.58 hours per day, minus breaks. The respondent outlined that the complainant never worked Saturdays and he had not sustained an injury in the workplace. The respondent outlined that employees did not complete paperwork, but were trained to complete paperwork on site. The complainant never did any Saturday work. The complainant often finished before the 5pm end time, so could take his breaks. In follow-up submissions, the respondent submitted the weekly records from which wages were paid. The records set out when the employee was working or otherwise on paid leave. |
Findings and Conclusions:
The complainant worked as a delivery driver for the respondent food distribution business. I accept that from June 2020, he was paid €120 per day. The complainant asserts that there were wide-ranging contraventions of employment law; an assertion rejected by the respondent. Mobile worker I find that the complainant was not a ‘mobile worker’ within the ambit of the ‘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 vans and neither 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. Working time records While the complainant was not a ‘mobile worker’ within the ambit the above Directive and the transposing Regulations, he was a professional driver, who drove a great deal across the country. The regulation of working time is a health and safety measure and the regulation of the working time of professional drivers is particularly important. Working time played a significant role in the evidence of this case. The complainant outlined that he worked long hours and beyond his finish time of 5pm. He outlined that he was not able to take breaks. The respondent did not accept this to be the case. Section 25 requires the employer to maintain records of working time. This ensures the effective enforcement of the entitlements emanating from the Act, but also allows employers to check that employees are not working excessive hours, for example over a reference period. Where there are no working time records, the burden of proof to show compliance rests on the employer. The respondent submitted tracking information from two of its vans. It used the location of the van as the beginning or end of a shift when the van was located at the respondent premises or the complainant’s home. The sheet does not record who was driving the van. The complainant might drive more than one van in a day, hence the respondent provided printouts, from different vans on the same day. There were also vans which were not fitted with trackers. It is also the case that the complainant did tasks other than driving, albeit the extent of this was disputed. The complainant loaded the vans and did paperwork after the day. While there was a dispute over how extensive the administrative burden was, the contract of employment obliged the complainant do administrative work in recording orders and deliveries and managing payments. The respondent did not record when the complainant took breaks, stating that it was for the complainant to take the breaks. The complainant stated that he could not take breaks because of the extent of driving, the pressure of completing deliveries and congestion. I find that the tracking information does not capture the complainant’s working time. It does not record when he, specifically, was driving, and nor did it record him doing other tasks (for example loading and administrative work). It did not record breaks. Working time – burden of proof Once the complainant has particularised their case and there are no records, it falls on the employer to provide evidence of compliance. The adjudication officer can then determine whether the complaint is well-founded. This approach tallies with the adjudication officer’s duty to inquire, which also requires the complainant to particularise what contravention is alleged and when this took place. Following CCOO v Deutsche Bank C-55/18, the complainant does not bear an initial evidential burden and in the context of an adjudication, is expected to particularise their claim. The onus is on the respondent to show compliance, primarily through records, but potentially via other evidence. It is for the employer to provide such evidence as to show compliance. It is likely, however, that the burden of proof shifting to the respondent in the absence of records will also have consequences for the standard of proof. The emphasis in CCOO on effectiveness is likely to mean that whatever evidence can be relied on by the employer to show compliance in the absence of records must be akin to the objectivity, reliability and accessibility of records. Also flowing from CCOO is that an employer who does not maintain records and whose employees work excessive hours cannot be in a better evidential position than an employer who has records but whose employees also work excessive hours. Having addressed working time generally, I make findings in respect of each specific complaint. CA-00041846-001 This is a finding of penalisation pursuant to the Safety, Health and Welfare at Work Act. The Act protects employees who raise issues of health and safety in the workplace from incurring detriment. The legal test is the ‘but for’ test, i.e. was raising the health and safety issue an operative cause in the detriment taking place. The complainant raised specific and serious health and safety issues. I accept that the incidents occurred as stated by the complainant. He states that the detriment was being assigned additional routes and tasks. Having considered the evidence, I find that the complainant has not provided sufficient evidence to make a finding of a worsening of his circumstances. The evidence regarding additional routes and tasks was not sufficiently precise to warrant a finding that it constituted detriment for raising the health and safety issues. Elsewhere, I have found that there were significant working time breaches, but these contraventions were not caused by the issues raised by the complainant. This specific complaint is, therefore, not well-founded. CA-00041846-002 The complainant resigned on the 10th August 2020. To succeed in a constructive unfair dismissal claim, the complainant must show that there was either a repudiatory breach or that it was reasonable for him to resign. I accept the complainant’s evidence regarding deteriorating interpersonal relationships in the workplace. I am surprised by the equivocal and weak reference given by the respondent about the complainant in respect of his application to join the Reserve Defence Forces. The respondent was firm that the complainant could not seek to finish at 4pm for childcare reasons. I accept that there were difficulties with a named manager. I have found that there were significant working time breaches, and these were longstanding. I find that the working time contraventions, of themselves, do not constitute a repudiatory breach. These were longstanding issues in how the work was allocated and recorded. Together, the contraventions and health and safety matters could constitute a breach of the term of trust and confidence had the complainant specifically raised this. He did not do so and therefore there was no repudiation of the term of mutual trust and confidence. The complainant did not attempt to refer a grievance. He resigned out of the blue. He cannot succeed on the reasonableness test. CA-00041846-003 This is a complaint pursuant to the National Minimum Wage Act. This requires the prospective claimant to request the employer for a statement of their average hourly rate of pay over a reference period. Once the request is made, the employer has four weeks to provide the statement. Once the statement is provided or the four weeks has elapsed, the complainant has six months to submit the complaint to the Workplace Relations Commission. The complaint form refers to a statement being requested on the 22nd August 2020, i.e. after the ending of this employment. The request has not been submitted as evidence and should be in order to meeting the above procedural requirement. The basis of the NMW claim is that the excessive hours meant that the complainant was paid below the prevailing national minimum wage. The respondent recorded the days he worked but not the precise hours each day. The complainant’s daily rate of pay increased to €115 and then €120. Any contravention would have to be assessed by comparing the number of hours worked with the prevailing daily rate of pay and the national minimum wage. As I do not have evidence of a request being made of the respondent, I decline jurisdiction in keeping with Mansion House Ltd v Izquierdo MWD043. CA-00041846-005 This is a complaint of excessive weekly hours pursuant to the Organisation of Working Time Act. Section 15 sets out that the weekly maximum is 48 hours, as calculated over a reference period (generally over four months). The complainant’s evidence was that he routinely worked excessive hours, such that the hours would exceed 48 hours per week over any reference period. This work included loading the van before 7am, driving all day and then doing paperwork to reconcile order books and payments. As noted, there were no working time records. The tracking information does not record the complainant’s use of the vehicle. It did not record the complainant’s other duties. The complainant could drive more than one van over the course of a day, and there were vans which did not have trackers. The cognisable period to this complaint is the six months prior to the lodging of the complaint with the Workplace Relations Commission, i.e. 8th July 2020 to the 7th January 2021. While the complainant resigned on the 10th August, he was working beforehand, after returning from lay off. Section 15 requires that weekly hours be assessed over a reference period. In line with the statute, I take the four months prior to the 10th August, i.e. 11th May to the 10th August 2020. In section 15 claims, the contravention has to be assessed over the entire reference period, presuming that one date in the reference period falls within the six-month cognisable period. I find as fact the complainant worked beyond the weekly maximum of hours in each week, he was working in the reference period and across the reference period as a whole. This is in line with his evidence and the Whatsapp and other messages discussed in the evidence. The respondent has not dislodged the onus in section 25(4) of the Act. This was a significant break of section 15 of the Organisation of Working Time Act, especially involving a professional driver. There was a conflict in evidence whether the complainant worked on Saturdays. The complainant said he did quite often, and this was strongly denied by the respondent. I note the bank records showing additional payments to the complainant other than his monthly pay. I find that the complainant did not specify which Saturdays he worked and the extent of this work. I have not resolved this conflict in the complainant’s favour. I find that there was a contravention of section 15 over the above reference period, and this fell within the cognisable period. I have not included any Saturday work in this calculation. The complainant worked substantially in excess of the maximum weekly rate in this period. Given the seriousness of the breach and the importance of regulated weekly working time, I award redress of €7,500. CA-00041846-006 For the reasons set out above, I find that this complaint is not well-founded as the complainant was not a mobile worker within the definition of the Regulations. While he was a professional driver who drove a great deal, he was not a ‘mobile worker’ within the statutory definition. CA-00041846-007 This is a complaint pursuant to the Organisation of Working Time Act in respect of a contravention of section 12 (rest and intervals at work). The complainant asserted that he could not take breaks at work because of the long hours of driving and delivering. The respondent did not accept this and stated that the complainant could take breaks when he wanted to. As stated, per section 25(4), in the absence of working time records, the onus is on the employer to show compliance. I have found that there were no working time records in the case. I accept the complainant’s evidence of not being able to take breaks and even having to be ‘creative’. This is borne out by his frustration in the messages to the respondent, about being stuck in congestion for hours. The respondent has not discharged the onus of having to show compliance with section 12. The cognisable period is 8th July 2020 to the 7th January 2021. In line with the evidence, I find that there were contraventions of section 12 in the period prior to the complainant’s resignation. Rest at work is important, in particular for those doing physical work and driving long distances. For these reasons, I award redress of €7,500. The six complaints per CA-00041847 are duplicates of the above and I formally dismiss them or find them, as duplicates, to be not well-founded. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00041846-001 I decide that this complaint pursuant to the Safety, Health and Welfare at Work is not well-founded. CA-00041846-002 I dismiss the complaint of unfair dismissal made pursuant to the Unfair Dismissals Act. CA-00041846-003 I decline jurisdiction for the reasons stated in respect of this complaint pursuant to the National Minimum Wage Act. CA-00041846-005 I decide that the complaint regarding excessive weekly hours pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €7,500. This is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00041846-006 I decide that the complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 is not well-founded as the complainant was not a ‘mobile worker’. CA-00041846-007 I decide that the complaint regarding rest during work pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €7,500. This is redress for a breach of a statutory right and is not remuneration or arrears of remuneration. CA-00041847-001 This is a duplicate complaint pursuant to the Safety, Health and Welfare at Work Act and I formally decide that it is not well-founded. CA-00041847-002 This is a duplicate Unfair Dismissal claim and I formally dismiss the claim. CA-00041847-003 I decline jurisdiction for the reasons stated in respect of this complaint pursuant to the National Minimum Wage Act. CA-00041847-005 This is a duplicate section 15 complaint pursuant to the Organisation of Working Time Act and I decide that this complaint is not well-founded as redress is awarded under CA-00041846-005. CA-00041847-006 I decide that the complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 is not well-founded as the complainant was not a ‘mobile worker’. CA-00041847-007 This is a duplicate section 12 complaint pursuant to the Organisation of Working Time Act and I decide that this complaint is not well-founded as redress is awarded under CA-00041846-007. |
Dated: 20th June 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Organisation of Working Time / working time records / burden of proof |