Case Number: ADJ-00028570. Workplace Relations Commission

• Docket Number: ADJ-00028570
• Hearing Date: 21 April 2021
• Date: 01 July 2021
• Court: Workplace Relations Commission
• Respondent: Passenger Bus Operator

ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00028570

Parties:

	Complainant	Respondent
Anonymised Parties	Bus Driver	Passenger Bus Operator

Representatives Thomas O'Connor National Bus & Rail Union Employee Relations (Services Manager – North West) Head of Employee Relations

Complaint(s):

Act	Complaint/Dispute 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-00037002-001	10/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00037002-002	10/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00037002-003	10/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00037002-004	10/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00037002-005	10/06/2020

Date of Adjudication Hearing: 21/04/2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint or complaints of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Instrument as may also be applicable under the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I (an Adjudicator so appointed) have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing. The Complaint herein was notified to the WRC by way of a Manual Complaint Form (received on the 10th of June 2020) which was prepared by the Complainant’s Union Representative.

In particular, the Complainant herein has referred the following complaints:

Complaint no. 1 –

Seeking adjudication pursuant to 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 of a contravention of Regulation 10 therein and concerning the issue of Night work.

It is noted that Regulation 10 (1) of SI 36/2012 reads:

“Subject to any derogations… the working time of a person performing mobile road transport activities, who performs nightwork in any period of 24 hours, shall not exceed 10 hours during that period”

Complaint no. 2 –

The Complainant herein has submitted a complaint under Section 27 of the Safety Health and Welfare at Work Act 2005 which protects employees form being penalised for having acted in compliance with the SHW Act, performed any duty under the SHW Act, made a complaint under the SHW Act or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005.

“penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given its ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)

Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –

Declare the complaint was well founded.

Require the Employer to take a specific course of Action.

Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.

The initial burden of proof is on the complainant to establish the existence a protected act and a detriment. If and only if the complainant establishes a protected act and a detriment does the burden shift to the respondent to put forward evidence that the detriment suffered was not due to the protected act being the operative cause.

Complaint no. 3 –

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the...