ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00038086

Parties:

	Complainant	Respondent
Parties	Odhran Dooley	Midland Tyre Services

Representatives

Ibec

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-001	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012	CA-00048853-002	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00048853-003	23/02/2022
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-00048853-004	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00048853-005	23/02/2022
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-00048853-006	23/02/2022
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-00048853-007	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00048853-008	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00048853-009	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00048853-010	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00048853-011	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00048853-012	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00048853-013	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00048853-014	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-015	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-016	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-017	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-018	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-019	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-020	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00048853-021	23/02/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00048853-022	23/02/2022

Date of Adjudication Hearing: 28/02/2023

Workplace Relations Commission Adjudication Officer: Bríd Deering

Procedure:

In accordance with s 41 of the Workplace Relations Act 2015 and s 79 of the Employment Equality Acts 1998-2015, 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.

The complainant was not represented and gave evidence under affirmation. The respondent called two witnesses: Mr Chris Parle, Operations Director & General Manager, who gave evidence under oath, and Mr Declan Maxwell, CFO, who gave evidence under affirmation.

During the hearing the complainant withdrew the complaint under the Employment Equality Act 1998.

I requested the complainant to resubmit screenshots of messages sent to the respondent with his hours of work as the copies provided to the Workplace Relations Commission did not display correctly. The respondent was requested to provide to me by 17 March 2023 payslips for the 22 weeks of the complainant’s employment (excluding 7 payslips which were included in the respondent’s written submission). I did not receive the requested documents from either party.

Background:

The complainant commenced employment with the respondent on 6 September 2021 on a permanent contract of employment until his dismissal on 4 February 2022. At the time of dismissal the complainant’s basic wage was €545.45 gross. The complainant presented several complaints to the Workplace Relations Commission relating to working time; terms of employment; minimum notice; victimisation; and fixed-term employment. Many of the complaints were duplicate complaints.

Summary of Complainant’s Case:

Evidence of the Complainant

The complainant stated that he was hired on a permanent basis, but he did not receive a written contract of employment or the procedure to be followed in the event of dismissal, both of which the complainant contended he was legally entitled to receive within a specified period of commencement of employment. The complainant also stated that he did not receive payslips or a Staff Handbook and that he did not receive the training he was told he would receive.

The complainant detailed that, on commencement of employment, he was informed verbally that his hours of work were 9am to 6pm with one hour for lunch. He understood that he would be required to work shifts once competent in the role and that his rate of pay would increase to €750 while on shift.

In mid-October 2021 the complainant was given a breakdown van. The complainant’s hours of work were now 8am to 6pm Monday to Friday with one hour for lunch and he was required to be on-call one night per week (Tuesday), and one weekend in five weeks. The complainant had no difficulty with this shift pattern, however, he stated that his rate of pay did not increase. Instead, he was paid a flat rate of €20 per night and €10 per hour when called out.

The complainant contends that post mid-October 2021 he was required to work excessive hours. The complainant worked a total of 22 weeks for the respondent between his start date and the date of termination of his employment. During that 22-week period the complainant submitted that he was required to be on-call a second night on several occasions and that in January 2022 he was requested to be on-call two weekends in succession.

The complainant outlined that he worked 8am to 6pm on Tuesdays. He was then on-call for the night from 6pm. Ninety percent of the time the complainant was called out to repair or change a tyre at or shortly after 6pm and the complainant did not get to return home from that call-out until 11pm. The complainant detailed how he might only get 3 hours sleep before being called out in the early hours of the morning. The complainant was then required to report for work at 8am the next morning and work until 6pm. If the complainant was on-call for the weekend, he was required to report for work as normal on Monday morning at 8am. The complainant stated that the job was busy. It was unusual not to be called out during the night or over a weekend, and when he was called out there was an expectation to respond and attend to a breakdown within a defined period.

On 4 or 5 occasions within the 22 weeks of his employment, the complainant was asked to be on-call a second night within the same week and he was required to report for work at 8am the following morning. The complainant outlined how he found this exhausting, that he was physically tired and that it was impacting on his relationship. The work the complainant performed was physically demanding and dangerous work as it required repairing or replacing tyres on lorries at the side of the road. It often required a journey of 1 hour or 1.5 hours to get to the location of the breakdown and then the same time again to return home.

The complainant stated that on 2 or 3 occasions every week he did not receive his rest intervals during the working day and that he did not receive sufficient daily rest.

The complainant outlined that he submitted his total weekly hours worked by text to the Operations Director at the end of every week. The complainant submitted that he was required to work a minimum of 51 hours some weeks and up to 79 hours other weeks.

The complainant outlined that he did not complain about the hours of work to management until February 2022. The complainant described that the Operations Director verbally attacked him on 3 February 2022 when the complainant refused to be on-call for a second weekend in a row. The complainant asked that he not be required to be on-call at night as he was exhausted, or if this was unacceptable to the respondent, in the alternative that his rate of pay be increased to compensate him as he felt he was not being adequately remunerated for the damage that the hours worked were doing to his health. On 4 February 2022 the Operations Director called the complainant to his office and asked him was he happy in the job. The complainant stated he liked the job but was not happy with his hours of work. The Operations Director informed the complainant that on-call was part of the job and that if he did not like being on-call, the job was not for him. The complainant outlined that he was informed there and then that he had not passed his probationary period. The complainant outlined that he had received no warnings prior to his dismissal. The complainant submitted that he was dismissed with immediate effect and paid one week’s pay in lieu of notice.

The complainant stated that the Operations Director informed him that he was entitled to 10 days annual leave. He had already taken 4 days leave over the Christmas period. The complainant therefore understood he was entitled to payment for 6 days leave on cessation of his employment. The complainant stated that he received payment for 4.6 days in his final pay. The complainant stated that the respondent normally closed on a public holiday.

In cross-examination the complainant confirmed that he was not required to work any of the public holidays which fell over the Christmas period and that he cannot recall if he was required to work on 31 October 2021. The complainant accepted that the respondent did not owe him for any public holidays. The complainant also accepted that he was due 4.6 days statutory annual leave and that he had received payment for same in his final payment.

The complainant confirmed that he was given advance notice of callouts but that this may be less than 24 hours when he was required to be on-call a second night within a week.

The complainant confirmed that he was not a fixed-term worker and that he was employed on a permanent contract. The complainant confirmed that he had withdrawn his complaint under the Employment Equality Act 1998.

In response to a question as to whether the occasion on which he worked 79 hours spanned a two-week period, the complainant answered in the negative and confirmed that he was required to work 79 hours in one week.

The complainant confirmed that he received an email address for the purposes of receiving payslips, however, he asked two of his colleagues for access details and these details were not provided. The complainant confirmed that he did not ask the Operations Director for access details.

The complainant confirmed that he did not inform the Operations Director or any member of management when he was unable to avail of his rest intervals at work. He confirmed that when he was unable to avail of his one-hour lunch break, that he claimed it as over-time and was paid for the time.

The complainant confirmed that he was sent to Dublin for a two-week period to train in the role and received further instruction at his place of employment. The complainant also confirmed that he received frequent direction, guidance, and feedback on his performance from NC, Floor Manager. The complainant stated that there were certain things that he did not receive training on such as how to park a vehicle safely at the side of the road when attending to a breakdown or how to jack a lorry properly. He confirmed that he did not raise this issue with management.

In reply to a question as to whether he was performing well, the complainant confirmed that he was always on time for work and that he was told he was a quick learner. No issues regarding his performance were brought to his attention and he received no warnings.

The complainant confirmed that he did not tell management that he was tired or finding the working hours difficult. The complainant acknowledged that the Operations Director spoke with the team every day and that he did not avail of that opportunity to complain about his hours. The complainant confirmed that on three occasions he refused to be on-call. One of those occasions was to cover Dublin and the complainant confirmed that the Operations Director accepted the complainant’s explanation for that refusal: that he was nervous covering the Dublin area. The complainant confirmed that he told the Operations Director on 3 February 2022 that he was unhappy working nightwork but that if he had to do it then he wanted more money for that work. The complainant confirmed that he got two fifteen minutes breaks within the working day: at 11am and again at 4pm and that he availed of these breaks.

Summary of Respondent’s Case:

Evidence of Mr Parle

Mr Parle detailed how he has worked for the respondent for 27 years and is the Operations Director and General Manager of the respondent company. He described the pressurised work environment and the requirement to assist at a breakdown within a defined period. Mr Parle stated that NC, Floor Manager, had responsibility for assigning tasks to the complainant and that NC was responsible for giving the complainant feedback on his performance. The Operations Director outlined how he met with the complainant on commencement of employment and verbally advised him of his hours of work and the requirement to complete a 6-month probationary period. The Operations Director outlined the training programme that all fitters are required to complete and how a fitter would not be given a van and placed on-call unless they were competent and ready for that role.

The Operations Director explained that a contract of employment was ordinarily given to all staff but that the complainant did not receive a contract and that this was an oversight and genuine error on behalf of the respondent.

The Operations Director denied that he verbally attacked the complainant on 3 February 2022. Rather there was a heated exchange as the Operations Director had been let down by another member of the team who was rostered to work that weekend and now the complainant was also refusing to do the on-call. The following day the Operations Director told the complainant that on-call was part of his role and if he was not prepared to be on-call then the job was not for him. The Operations Director stated that the complainant then asked for more money to work on-call. The Operations Director outlined that the complainant was technically competent but that he did not pass his probationary period because of his attitude and his refusal to work on-call.

The Operations Director confirmed that there might not be a call-out during the night or that the complainant could get a “stinker of a night”; meaning he could be called out on several occasions within the call-out period or called out for a protracted period. However, there was a custom and practice whereby if an employee had a difficult night, they could inform the Operations Director and the staff member would not be required to report for work at 8am the next morning.

In reply to the complainant, the Operations Director denied that the complainant was required to report for work at 8am following an on-call period and the Operations Director denied that the complainant was the only employee with a vehicle to do a call-out if same was required at 8am the next morning.

The Operations Director clarified to the hearing that the complainant refused to be on-call on 3 occasions: once in November 2021 which was to cover Dublin and the Operations Director accepted the complainant was nervous doing a call-out in Dublin at that stage of employment; the complainant also refused to work a second on-call within a week that he had already completed one night; and the complainant refused a weekend on-call on 3 February 2022. The Operations Director stated that he was not aware that the complainant had already worked the previous weekend. The Operations Director stated that the reason the complainant gave for the second refusal was that he was only 21 years of age and that he did not want to be waiting around to be called out. The Operations Director clarified that there was a copy of the Staff Handbook in the office for any staff member who wished to view same.

In re-direct the complainant stated he had no difficulty with his rostered night of on-call but that he did not want to have to do a second night within a week as this was exhausting, and this was not part of his terms of employment. The complainant stated he was not told, nor was he aware, of a custom and practice of informing the Operations Director of a difficult night and the practice of starting work later that day.

Evidence of Mr Maxwell

Mr Maxwell is the CFO and has worked for the respondent company for the past 4 years. Mr Maxwell stated that there is a practice in the company of placing all staff on a six-month probationary period and that this would have been verbally notified to the complainant on commencement of his employment.

Findings and Conclusions:

Complaints under the Terms of Employment Information Act 1994

The complainant presented two specific complaints under the Terms of Employment (Information) Act 1994 (as amended) (“the 1994 Act”) as follows:

CA-00048853-005

The complainant outlined that he did not receive any statement of terms of employment. The respondent stated this was an oversight on its behalf.

Section 3(1A) of the 1994 Act requires that an employer notify each new employee, in writing, within five days of commencement of employment, of certain core terms of employment.

It is common case that the employee did not receive a s 3(1A) statement.

Section 7(2) of the 1994 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) either— (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration . . . . ”

I find that the respondent contravened s 3(1A) of the Act and I order the respondent to pay to the complainant compensation of €1,090.90 (€545.45 x 2 weeks).

CA-00048853-022

The complainant outlined that he did not receive any statement of terms of employment. The respondent stated this was an oversight on its behalf.

Section 3(1) of the Act provides:

“An employer shall, not later than 2 months* after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment . . . .”

It is common case that the employee did not receive a s 3 statement. A contravention of s 3 of the 1994 Act is a subsisting and a continuing contravention if after the initial two-month* period the employee remains an employee not in possession of a statement.

Section 7(2) of the 1994 Act provides:

I find that the respondent contravened s 3(1) of the Act and I order the respondent to pay to the complainant compensation of €1,090.90 (€545.45 x 2 weeks).

*Section 3(1) of the Act now requires an employer to provide each new employee with a written statement of terms of employment within one month of commencement of employment (legislative changes arising from The European Union (Transparent and Predictable Working Conditions) Regulations 2022).

Complaints under the Minimum Notice and Terms of Employment Information Act 1973

The complainant presented three specific complaints under the Minimum Notice and Terms of Employment Information Act 1973.

CA-00048853-011

The complainant selected ‘failure to give statutory notice or PILON’ on the complaint form.

Section 4(1) of the Minimum Notice and Terms of Employment Information Act 1973 (“the 1973 Act”) provides:

“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

Section 4(2)(a) of the 1973 Act provides:

“The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week . . . .”

The complainant had more than 13 weeks service and was entitled to one week of statutory notice.

Section 12(1) of the 1973 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” [Emphasis added].

While the respondent did not comply with s 4(2)(a) in failing to give the complainant one week’s notice to terminate the contract of employment, it is common case that the complainant was paid in lieu of one weeks’ notice on termination of employment. I find therefore that the complainant did not sustain any loss by reason of the contravention of s 4(2)(a). Accordingly, I award no compensation.

CA-00048853-012

The complainant selected ‘did not receive rights during notice’ on the complaint form. The complainant did not particularise this specific complaint. I find therefore that this complaint is not well founded.

CA-00048853-013

The complainant selected ‘did not receive minimum notice on termination’ on the complaint form. This complaint is a duplicate of CA-00048853-011. I have made a finding in relation to the complainant’s entitlement to statutory notice on termination under CA-00048853-011. I find therefore that this complaint is not well founded.

Complaint under the Employment Equality Act 1998

CA-00048853-010

During the hearing the complainant withdrew the complaint under the Employment Equality Act 1998.

Complaint under the Protection of Employees (Fixed-Term Work) Act 2003

CA-00048853-014

It is common case that the employee was hired on a permanent contract and was not a fixed-term worker for the purposes of the Protection of Employees (Fixed-Term Work) Act 2003. I find therefore that the complainant lacks locus standi to pursue a claim under the Protection of Employees (Fixed- Term Work) Act 2003. I find therefore that this complaint is not well founded.

Complaints Relating to Annual Leave

The complainant presented four complaints in relation to annual leave.

CA-00048853-019

Section 19 of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“ Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23(1)(a) of the 1997 Act provides:

“Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave . . . .”

In oral evidence the complainant outlined that the Operations Director informed him that he was entitled to 10 days annual leave. He had already taken 4 days leave over the Christmas period. The complainant therefore understood he was entitled to payment for 6 days leave on cessation of his employment. The complainant outlined that he received payment for 4.6 days annual leave in his final pay. The complainant accepted in cross-examination that he was due 4.6 days statutory annual leave and that he had received payment for same in his final payment.

I find that the complainant had accrued 8.6 days of statutory annual leave between 6 September 2021 and 4 February 2022. It is common case that the employee availed of 4 days leave and was due payment for 4.6 statutory annual leave days on termination of employment. It is also common case that the employee was paid 4.6 days cesser pay in lieu of statutory annual leave accrued but not taken on termination of employment. The respondent submitted a final payslip showing payment for 4.6 days annual leave. I find that this complaint is not well founded.

CA-00048853-015

It is common case that the employee was permitted to and did avail of annual leave during his employment. I find therefore that this complaint is not well founded.

CA-00048853-002

The respondent submitted that this complaint was a duplicate of the complaints submitted under the Organisation of Working Time Act 1997 in relation to annual leave.

Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – S.I. No. 507 of 2012 covers mobile staff in civil aviation on board a civil aircraft. It is common case that the complainant is not a mobile worker within the civil aviation industry. I find therefore that the complainant lacks locus standi to pursue a claim under the Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – S.I. No. 507 of 2012. I find therefore that this complaint is not well founded.

CA-00048853-003

The respondent submitted that neither the complainant or the respondent was governed by any Employment Regulation Order (ERO) and that this complaint was a duplicate of the complaints submitted under the Organisation of Working Time Act 1997.

Section 45A of the Industrial Relations Act 1946 provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

I find that the complainant is not covered by an ERO. I find therefore that the complainant lacks locus standi to pursue a claim pursuant to the Industrial Relations Act 1946. I find therefore that this complaint is not well founded.

Complaints Relating to Public Holidays

The complainant presented three complaints in relation to not receiving public holidays or payment for public holidays.

CA-00048853-020

Section 23 of the Organisation of Working Time Act 1997 provides for compensation on cesser of employment in relation to annual leave and public holidays. Section 23(2) provides in relation to public holidays:

“Where—(a) an employee ceases to be employed during the week ending on the day before a public holiday, and (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.”

The complainant’s employment ended on 4 February 2022. No public holidays fell within the cognisable period provided for at s 23(2). I find therefore that the respondent did not contravene s 23(2) of the 1997 Act and that this complaint is not well founded.

CA-00048853-016

In oral evidence the complainant submitted that the respondent normally closed on a public holiday. In cross-examination the complainant confirmed that he was not required to work any of the public holidays which fell over the Christmas period and that he cannot recall if he was required to work on 31 October 2021. The complainant accepted that the respondent did not owe him for any public holidays. I find therefore that this complaint is not well founded.

CA-00048853-004

The complainant presented a complaint under S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“the 2012 Regulations”) in respect of public holiday entitlements.

The 2012 Regulations apply to mobile workers and self-employed drivers participating in road transport activities to which either the Council Regulation or the AETR applies. I find that the complainant is not a mobile worker, or a self-employed driver and accordingly he does not come within the scope of the 2012 Regulations. I find therefore that the complainant lacks locus standi to pursue a claim under the 2012 Regulations. I find therefore that this complaint is not well founded.

Complaints Relating to Hours of Work

The complainant presented six complaints in relation to hours of work to the Workplace Relations Commission.

CA-00048853-001

On the complaint form under this specific complaint the complainant stated that he was required to work more than the maximum number of hours. The complaint was presented as a complaint under S.I No. 36 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“the 2012 Regulations”). The complainant explained that because he was on-call and required to drive to a breakdown, he ticked the option on the form of persons performing mobile road transport activities. The respondent submitted that the complainant was a fitter and not a mobile worker and that he was not covered by the 2012 Regulations and that therefore the complaint was not well founded.

The 2012 Regulations apply to mobile workers and self-employed drivers participating in road transport activities to which either the Council Regulation or the AETR applies. I agree with the respondent’s submission that the complainant is not a mobile worker, or a self-employed driver and therefore the complainant does not come within the scope of the 2012 Regulations.

It is well established that the Workplace Relations Commission complaint form is not a statutory form. In County Louth VEC v Equality Tribunal [2009] IEHC 370, the High Court noted:

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same” (per McGovern J at [6.2].

I further note McGovern J’s comment at [6.7]:

“It is important to emphasize that the hearing before the Equality Tribunal is not a hearing in a court of law with all the attendant formality that would exist in such a forum”.

I also note the dicta of Charleton J in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210 as follows:

“For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

The Workplace Relations Commission complaint form is intended to provide an outline of a complaint or complaints, so that, and in line with fair procedures, the respondent is on notice of the claim it must meet. Included within this complaint is the complainant’s assertion that he was “required to work more than the maximum hours”. This complaint form was copied to the respondent and, while the complaint was selected under a Regulation that did not apply to the complainant, the nature of the complaint was clearly indicated. Applying the findings of the High Court in both cases cited above, I find that I have jurisdiction to treat this complaint as a complaint under the Organisation of Working Time Act 1997 (“the 1997 Act”). The decision, therefore, reflects that it is a claim seeking redress under the 1997 Act. This complaint (CA-00048853-001) has been amended to reflect the correct legislative provision.

The complainant submitted in oral evidence that he was required to be on-call one night per week, and one weekend in five weeks, and that he had no difficulty with that. However, the complainant stated that from mid-October 2021 he was required to work excessive hours and that he did not receive sufficient rest.

During his 22-week period of employment the complainant submitted that he was required to be on call a second night on several occasions and that in February 2022 he was requested to be on-call two weekends in succession. This was not refuted by the respondent.

The complainant outlined that he worked 8am to 6pm on Tuesdays. He was then on-call for the night from 6pm until 8am the following morning. The complainant stated that most of the time he was called out to repair or change a tyre at or shortly after 6pm and that he did not return home from that call-out until 11pm. The complainant detailed how he might only get 3 hours sleep before being called out in the early hours of the morning. The complainant was then required to report for work at 8am the next morning and work until 6pm. If the complainant was on-call for the weekend, he was required to report for work as normal on Monday morning at 8am. The complainant stated that the job was busy. It was unusual not to be called out during the night or over a weekend, and when he was called out there was an expectation to respond and attend to a breakdown within a defined period. The respondent did not refute the foregoing and acknowledged that the complainant could “get a stinker of a night”. It was the respondent’s evidence that there was a custom and practice of not being compelled to report for work at 8am the following morning if an employee had a difficult night. The complainant denied any knowledge of that custom and practice and detailed how he always reported for work at 8am on a Wednesday morning and 8am on a Monday morning after a weekend on-call. The respondent acknowledged that the complainant was punctual and attended for work on time every day.

Daily Rest

Section 11 of the 1997 Act provides:

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

It was common case that the complainant was required to be on-call at least one night per week. It was common case that the complainant could have a very difficult night meaning that the employee could be called out for a prolonged period during the night. The respondent did not refute the evidence of the employee that, on occasion, he may get less than 3 hours rest when on-call at night. Further, it was not refuted that the complainant attended for work at 8am, as rostered, the morning after being on-call. I accept the evidence of the complainant that he was not aware of a custom and practice of notifying the respondent of a difficult night so that he could start work later that morning. The respondent proffered no evidence of having made the complainant aware of such a practice. I further accept the evidence of the complainant that he did in fact attend for work at 8am following a night on-call, which again was not refuted by the respondent. I find, therefore, that the employee did not receive a rest period of 11 consecutive hours within a 24-hour period between mid-October 2021 and 4 February 2022 when the complainant was required to be on-call on Tuesday night and report for work at 8am the following morning, and on occasion on another night within the same week and over a weekend when rostered to be on-call.

Section 27 of the 1997 Act provides:

“In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 . . . (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

The cognisable period for complaints under s 27 of the 1997 Act is set out in s 41(6) of the Workplace Relations Act 2015. It provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The complainant referred these complaints to the Workplace Relations Commission on 23 February 2022. Accordingly, the cognisable period covered by this complaint spans the totality of the complainant’s employment.

I find that the employer breached s 11 of the 1997 Act and that this complaint is well founded. I order the respondent to pay compensation to the complainant of €3,500 which is just and equitable in all the circumstances.

Maximum Working Hours

Section 15(1)(a) of the 1997 Act provides:

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— (a) 4 months . . . .”

It was common case that the complainant’s daily hours of work were 8am to 6pm (excluding 1.5-hour breaks) which is a weekly working time of 42.5 hours and that the complainant was required to work over-time hours.

The complainant outlined in his evidence that he submitted his total weekly hours worked by text to the Operations Director at the end of every week. The complainant submitted that he was required to work a minimum of 51 hours some weeks and up to 79 hours other weeks. I requested the complainant to resubmit the screen shots of the texts showing his hours of work as the dates on some of the screen shots were not clear. I did not receive these screenshots as requested. However, I could clearly see the overtime hours the complainant submitted to the respondent each week. The overtime hours worked by the complainant were not refuted by the respondent. Sixteen text messages were sent with overtime hours in the period of 18 September 2021 to 30 December 2021. Overtime hours worked varied from 7 hours per week to 39 hours per week. I find the average overtime hours worked per week to be 20.2 hours, in addition to the core hours of work. These hours tally with the payment for hours detailed in the seven payslips included in the respondent’s written submission.

I find that the respondent breached s 15 of the Act in permitting the complainant to work in each period of 7 days, more than an average of 48 hours calculated over a period of 4 months.

In Nurendale Ltd v Suvac (DWT 19/2014), the Labour Court noted the respondent’s lack of regard for its legal obligations under the Organisation of Working Time Act 1997, and that the contravention was “a serious matter in that it potentially imperilled the Claimant’s health and safety at work”. In Stablefield Ltd Lacramioara Manciu (DWT1924) the Labour Court determined that payment of compensation to the complainant for what the Court was satisfied was “a conscious breach” of the complainant’s rights is the most appropriate means of dealing with such breaches. The court added that regard must be had to a level of compensation that “is just and equitable . . . . ” The court noted as set out in Von Colson v Kamann (1984) ECR 1891 that “sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive” and “must reflect the gravity of the breaches and should act as disincentives against future infractions”. In determining the appropriate amount of compensation I have had regard to the physically demanding and often dangerous nature of the work performed by the complainant.

I find that this complaint is well founded, and I order the respondent to pay compensation to the complainant of €5,000 which is just and equitable in all the circumstances.

CA-00048853-006

The complainant asserted that the respondent did not keep statutory records. The 2012 Regulations permit mobile workers to refer to adjudication complaints regarding a failure of their employer to maintain records and other duties. This is only available to mobile workers. There is no equivalent, general right to refer adjudication complaints in relation to records required by the Organisation of Working Time Act. Section 25 of the Organisation of Working Time Act sets out the record-keeping obligations of an employer; a breach of section 25 is not within the jurisdiction of an adjudication officer per section 27 of the Act. Therefore, given that the complainant is not a mobile worker for the purposes of the 2012 Regulations, he lacks locus standi to pursue a claim under the 2012 Regulations. I find therefore that this complaint is not well founded.

CA-00048853-007

This is a duplicate of the complaint made under CA-00048853-006. The complainant lacks locus standi to pursue a claim under the 2012 Regulations. I find therefore that this complaint is not well founded.

CA-00048853-017

Section 17 of the 1997 Act provides:

“(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week . . . .”

The complainant confirmed that he was given advance notice of callouts but that this may be less than 24 hours when he was required to be on-call a second night within a week. The respondent did not refute this but stated that the complainant was given as much notice as reasonably possible regarding additional hours that would be required to be worked and at no time were any objections or a grievance raised by the complainant. In these circumstances I find that the respondent contravened s 17(2) of the 1997 Act in relation to the complainant. I order the respondent to pay the complainant compensation of €300.

CA-00048853-018

Section 18 of the 1997 Act makes provision in relation to zero hours working practices as follows:

“This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours (“the contract hours”), or

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week (whether or not the number of those occasions or the circumstances otherwise touching the said engagement of the employee are such as to give rise to a reasonable expectation on his or her part that he or she would be required by the employer to do work for the employer in the said week).

(2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent. of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent. of the hours for which such work has been done in that week,

then the employee shall, subject to the provisions of this section, be entitled—

(i) in case the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

(ii) in case the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be . . . . ”

It is common case that the complainant was contracted and required to work full-time hours. The provisions of s 18 do not apply to the complainant. I find therefore that this complaint is not well founded.

CA-00048853-021

Section 16 of the 1997 Act provides:

“In this section— “night time” means the period between midnight and 7 a.m. on the following day; “night work” means work carried out during night time; “night worker” means an employee— (a) who normally works at least 3 hours of his or her daily working time during night time, and (b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year . . . .”

I find that the complainant was not a “night worker” as defined under s 16 of the 1997 Act. The matter of excessive hours of work was dealt with under CA-00048853-001. I find therefore that this complaint is not well founded.

Complaints relating to Terms and Conditions

The complainant presented two complaints to the Workplace Relations Commission regarding not receiving terms and conditions as laid down by an ERO (CA-00048853-008) and by a Sectoral Employment Order (CA-00048853-009). The complainant did not particularise these complaints in the complaint form or in oral evidence during the hearing. The respondent submitted that the complainant is not covered by an ERO or SEO. This was not refuted by the complainant.

CA-00048853-008

I find that the complainant lacks locus standi to pursue a claim pursuant to the Industrial Relations Act 1946. I find therefore that this complaint is not well founded.

CA-00048853-009

I find that the complainant lacks locus standi to pursue a claim pursuant to the Industrial Relations (Amendment) Act 2015. I find therefore that this complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts 1998–2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00048853-005

I find that this complainant is well founded, and I order the respondent to pay to the complainant compensation of €1,090.90 in respect of the breach of s 3(1A) of the Terms of Employment Information Act 1994.

CA-00048853-022

I find that this complainant is well founded, and I order the respondent to pay to the complainant compensation of €1,090.90 in respect of the breach of s 3(1) of the Terms of Employment Information Act 1994.

CA-00048853-011

I decide that this complaint is well founded. For the reasons set out above, I award no compensation.

CA-00048853-012