RTD211

1. An appeal of Adjudication Officer's Decision No. ADJ-00020971

BACKGROUND:

2. The employee referred his case to the Labour Court in accordance with Section 19 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Transport Activities) Regulations 2012-S.I. No.36.2012 on 26 April 2020. A Labour Court hearing took place on 27 January 2021. The following is the Determination of the Court:

 
DETERMINATION :

This is an appeal by Mr Malcom Dick of an Adjudication Officer’s Decision ADJ-00020971, CA-00027532-001, 002, and 003 under Regulation 19 of the European Communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, S.I. 36 of 2012 (the Regulations) in complaints made against his former employer, Limerick Express Couriers Limited.

The Adjudication Officer held that the complaints were not well founded, except in one instance, where he held that there was a minor and a non-recurring breach of Regulation 10 and awarded the Complainant the sum of €200.

For ease of reference, in this Determination, the parties will be referred to as they were at first instance, Mr Malcom Dick will be referred to as “the Complainant” and Limerick Express Couriers Limited will be referred to as “the Respondent”.

The Complainant submitted his claim under the Regulations to the Workplace Relations Commission on 5^th April 2019. The Decision of the Adjudication Officer was issued on 1st April 2020. The appeal under the Regulations was presented to the Labour Court on 26th April 2020.

The Regulations transcribed EU Directive 2002/15/EC “on the organisation of the working time of persons performing mobile road transport activities” (the EU Directive) into domestic law. The Complainant alleged that the Respondent was in breach of Regulation 5, (working time), Regulation 10,(night work), Regulation 8, (breaks from work) and Regulation 12, (records).

Background

The Complainant was employed by the Respondent from 1st July 2013 until 1st February 2019 as a Driver to drive a goods vehicle between Limerick and a depot in Dublin (hereinafter referred to as “Freight Company X”). His weekly rate of pay was €600.78. He worked an evening/night shift.

Summary of the Complainant’s Case

Mr Glenn Cooper, Dundon Callanan Solicitors, on behalf of the Complainant submitted that the Complainant’s hours of work varied and as he did not receive a contract of employment the Respondent failed to provide any complete or accurate record of his working hours. He said that the Complainant would normally commence between 5.00pm and 6.00pm, five days a week, Monday to Friday.

He would assist with loading the vehicle and depart for Dublin anytime between 7.00pm and 11.00pm, depending on whether there were delays in the goods arriving. When he got to Freight Company X in Dublin he would assist with unloading/loading which would normally take between one and two hours, but sometimes up to 5 or 6 hours if there were delays in the depot.

Arrival times back in Limerick was variable, anytime between 2.00am and 6.30am. The Complainant almost never had a proper break, he would have a sandwich and tea while filling up at a petrol station.

Mr Cooper said that the Respondent failed to produce records as sought by the Complainant’s Solicitors and only produced “Tranzaura” records at the Adjudication Officer’s hearing which were incomplete and inaccurate, relating only to the period between 3rd September 2018 and 9th November 2018.

The “start” times shown were when the truck left the depot and not when the Complainant commenced work, which was much earlier. Therefore, he submitted that it was impossible to calculate the precise working hours. He said that in any event the records produced indicate that there were 10 occasions when he started work at 5.30pm and finished after 3.30am.

Summary of the Respondent’s Position

Mr Edward Leahy, Leahy Reidy Solicitors LLP, on behalf of the Respondent, denied that there were breaches of the Regulations or if there were, then they were only minor breaches as found by the Adjudication Officer. Based on the available records, he said that the Complainant exceeded 10 hours working at night on two occasions, namely on 19th September and 2nd October 2018, by one hour and 39 minutes respectively.

He disputed the Complainant’s contention that he assisted with the unloading/loading of goods at the depot in Dublin. Mr Leahy submitted an email from Management at that depot which stated that only Freight Company X staff were permitted to operate mobile equipment on its site.

The email stated that only those who had “completed FLT Training on site c/w licence and have full sign off with our Compliance Department are allowed the use of Machinery whilst on site.” Mr Leahy furnished the Court with a spread sheet detailing the working hours and break times which were never less than the regulated 45 minutes.

He said that the time for loading the truck was variable therefore that the “starting times” on the records were not accurate. He maintained that if the Complainant was not completing the records correctly by not including his loading time while in the Limerick depot before he departed then that was an error on the Complainant’s part as he was required by the Regulations to fill in the tachograph details correctly.

Summary of the Complainant’s Evidence

The Complainant gave evidence to the Court. He said that he had worked after 9th November 2018, and had worked until the end of January 2019, before he left the employment. He was asked about the records produced by the Respondent, which were based on the tachograph recordings.

He said that when he arrived at the depot around 5pm or 6pm, he would assist with the loading of goods (doors) and when the truck was loaded, he would at that point insert his tachograph card into his truck which would record his activities from then on until he returned to the depot in Limerick the next morning.

He said that he had been asked by management not to insert the card until he was leaving the depot in his truck as otherwise, he would not be permitted to drive continuously to Dublin without a break, which would leave him late for the drivers who arrived into work in the mornings. He described it as a mutual arrangement between himself and management.

The witness said that he unloaded the truck in Dublin, and he disputed the Respondent’s contention that he was not permitted to use the fork lift at the depot in Dublin as he said that he had loaded the goods in the Limerick depot for many years and was therefore used to driving a fork lift truck.

When Freight Company X imposed an obligation on the necessity to have a Licence, a Fork Lift Truck Driving Ticket had been acquired for him by the Respondent. He said that he acquired the Ticket in 2016. Therefore, he contended that he was working at times described by the Respondent in the tachograph records as ‘Break’ times, when he was at the depot in Dublin.

With regard to breaks, the Complainant told the Court that he stopped at filling stations on the way back to Limerick and had a sandwich and coffee.

Obligation on Employer

Regulation 12 prescribes the obligation of an employer in relation to record keeping for the purposes of the Regulations, it provides as follows:-

“12. An employer shall do each of the following in relation to each mobile worker employed by him or her:(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

(c) include time worked for another employer in the calculation of the mobile worker’s working time;

(d) keep records which are adequate to show that these Regulations are being complied with;

(e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;

(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

(h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).”

Conclusions of the Court

The Complainant’s solicitor, acting on his instructions, requested a copy of the working time records retained by the Respondent in respect to the Complainant. The Respondent furnished tachograph records but not until the case was being heard by the Adjudication Officer.

The Court is of the view that there is no reason in principle why tachograph records, properly maintained which record periods of availability, break times and rest times, cannot meet an employer’s obligation under Regulation 12 of the Regulations. The difficulty the Court has in this case is that there is a dispute that such records accurately recorded such periods.

In the absence of ‘sign in and sign out’ records, the tachograph records furnished to the Court cannot be relied upon as an accurate record of working time, discounting periods of availability, break times, and rest times. The Respondent based his contention that there were no breaches of Regulations 5, 8 and 10, on the tachograph records produced, without any further data or evidence to support its contention.

Having considered the position of both parties the Court accepts as persuasive, the evidence given by the Complainant. On that basis and in the absence of any corroboration of the hours actually worked by the Complainant, the Court must find that the Respondent was in breach of Regulations 5, 8 and 10 of the Regulations.

Determination

On the basis set out above, the Court finds that the Respondent contravened Regulation 5, 8, 10 and 12 of the Regulations. The Court awards the Complainant the sum of €5,100 in compensation for those contraventions and orders the Respondent to pay that sum within six weeks of this Determination.

The Complainant’s appeal is allowed The decision of the Adjudication Officer is varied in terms of this Determination.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
CC	______________________
2 February 2021	Deputy Chairman