Case Number: ADJ-00000117. Workplace Relations Commission

• Docket Number: ADJ-00000117
• Date: 01 March 2017
• Court: Workplace Relations Commission
• Parties: A Lorry Driver v A supplier to a retail chain

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000117

Complaints for Resolution:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00000162-001	6th October 2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000162-002	6th October 2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000162-003	6th October 2015
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-00000169-001	6th October 2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000169-002	6th October 2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000169-003	6th October 2015

Date of Adjudication Hearing: 8th January 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 6^th October 2015, the complainant referred complaints to the Workplace Relations Commission. The complaints were made pursuant to the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, the Organisation of Working Time Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 8^th January 2016.

At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondents. The case file includes correspondence issued by the Workplace Relations Commission to the respondents dated the 4^th November and 18^th December 2015. On this basis, I proceeded with the adjudication in the absence of either respondent.

The adjudication file contains two sets of complaints CA-0000162-001 to CA-0000162-003 and CA-0000169-001 to CA-0000169-003. The ‘162’ complaints are made against one entity and the ‘169’ complaints are made against another. It is not clear from the documentation who the proper respondent should be as the contract documentation refers to one limited company trading as another limited company.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, 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.

For the sake of clarity, I have separately decided complaints from the same complainant against the same respondents in relation to claims made pursuant to employment equality enactments.

Complainant’s Submission and Presentation:

The complainant commenced employment with the respondents on the 7th June 2014. He was engaged as a lorry driver at the respondents’ depot. His duties including driving a lorry and unloading deliveries to respondents’ retail stores as well as shunting work in the depot.

The contract of employment does not specify hours of work and provide an hourly rate of pay of €14.25 up to the 30th November 2012 and €14.46 from the 1st December 2012, for 12 months. It also provides that Saturdays, Sundays and public holidays are ordinary days of work. It provides overtime rates for work carried out above contracted hours. The complainant submits an acknowledgement he signed, agreeing to remove the 10-hour limit for night work and extending the reference period from 17 to 26 weeks for calculating the 48-hour average. This acknowledgement is stated as pursuant to the European Communities (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2005.

The complainant referred to 14 pay slips covering the period of the 9th January 2015 to the 1st May 2015. He outlined that they show that he was required to work for more than the maximum permitted hours. He also said that he regularly worked on Sundays and received no Sunday premium. The calendar submitted by the complainant shows that he worked seven of the 18 Sundays listed. The annual leave and public holiday pay did not factor in the Sunday premium he was entitled to. He also did not receive the overtime specified in the contract. The complainant said that there had been breaches of section 17 of the Organisation of Working Time Act when he had not received 24 hours' notice of night shifts. Generally, he was informed of his start time and route at 9pm on the day before and was not therefore given 24 hours' notice when he had to start work between 11am and 1 or 2pm. If the route was an arduous one, he might not finish until 1am, but still had to work the following day.

The complainant said that he was never informed of the provisions of S.I.36/2012 and did not operate under its provisions. It was a criminal offence for him to drive in breach of these Regulations, as it was for the employer. The complainant outlined that he had requested records from the respondents but none were provided. He said that he also had not received the particulars of his employment pursuant to section 3 of the Terms of Employment (Information) Act, 1994.

In relation to the end of his employment relationship with the respondents, the complainant said that on the 17th July 2015, he sent a document entitled 'notice of particulars/grievance' to the respondents that was never responded to. This outlines that he has been asked to work illegally and lists 25 issues arising in the workplace. He said that, prior to serving this notice, he had complained five or six times to his line managers. This occurred, for example, when he had not had 11 hours of rest between shifts. There was no facility for him to sleep in the truck and he had to return the lorry to the depot and then travel home after the end of every delivery run. He also said that at the end of June 2015, he was injured while unloading the lorry, causing him to be out sick for three weeks. He had asked for lighter loads but was given two heavy delivery runs instead. Because his letter of the 17th July 2015 had not been addressed, he wrote to the respondents on the 31st July 2015 to tender his resignation as he...