DWT2240

1. Appeal Of Adjudication Officer Decision No ADJ-00016484.

BACKGROUND:

2. The Union appealed an Adjudication Officer Decision under the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 9 June 2022. The following is the Determination of the Court:



DETERMINATION :

This is an appeal by SIPTU, on behalf of Rhys Acton, against a Decision of an Adjudication Officer (ADJ-00016484, dated 14 March 2022) in a complaint made under section 17 of the Organisation of Working Time Act 1997 (“the Act”).

The Adjudicator Officer found as follows: “The complaint is well founded. I note that the company and union have amended their procedures to bring them in line with section 17 of the Act. In the particular circumstances of this case, I do not see the payment of any compensation as appropriate”.

For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr. Acton is referred to as “the Complainant” and Dublin Bus is referred to as “the Respondent”.



Background to Appeal:

The complainant is a ‘spare driver’ working with the Respondent. He is not attached to a particular bus route and provides cover for ‘marked in’ drivers when they are absent due to annual leave, sick leave, or are unavailable for duty. The appeal before the Court relates to a claim that the Respondent contravened the Act when it failed to provide adequate notice to the Complainant of his working hours, as required under section 17 of the Act.

The complaint before the Court was lodged to the Workplace Relations Commission on the 24 of August 2018. The cognisable period for consideration by the Court of contraventions of the Act is the period from 25 of February 2018 to 24 August 2018.

On the same day the Court heard an appeal of a decision of an Adjudication Officer by the same union on behalf of another employee of the Respondent, regarding a similar complaint of a breach of section 17 of the Act, WTC/22/100.

Complainant’s Submission:

SIPTU, acting on behalf of the Complainant, submits that two breaches of the Act occurred when the Respondent failed to notify the Complainant about his shift hours, as is required under sections 17(1) and 17(3) of the Act. The Complainant was on scheduled rest days on 21, 22, and 23 April 2018. The Complainant received notice at 9pm on Sunday 22 April 2018 of his forthcoming shift hours. He started his shift at 7.05 am on Tuesday 24 April 2018. SIPTU submits that when a driver is on back-to-back rest days he should receive notice of his shift 24 hours before going on his rest days. The worker received notice at 9pm on 22 April 2018 during his rest period in contravention of the Act.

The Complainant is one of a wider group of circa 150 drivers who did not receive notice of his start and finish time in accordance with section 17 of the Act. This type of infringement was systemic within the company’s rostering notification system on a daily basis at that time.

SIPTU submits that the company knew they were in breach of the law at the time and continued to breach the relevant provisions. No registered or collective agreement can be relied upon by the respondent to exempt them from the requirement to provide a worker with 24 hours’ notice when the starting and finishing times are not set.

SIPTU acknowledges that the company subsequently took steps to eradicate the breach, however, this does not take away from the fact that the workers employment rights were breached at the time.

The failure to provide the requisite notice caused considerable inconvenience for workers who were not given an opportunity to reconcile their work and family life obligations. At the time of the infringement when the Complainant was on rest periods, he could not fully plan his life.

SIPTU seeks compensation that is just and equitable for a breach of section 17 of the Act. In support of its position, SIPTU relies on the rationale of the Labour Court set out in DWT13114 Lucey Transport Ltd v Seransa, where the court stated:

• "It seems to the Court that the underlying rationale of the provision is perfectly clear. It is directed as making a sensible distinction between situations in which an employee has a fixed starting and finishing times around which he or she can plan their private or family life and those who cannot do so due to the unpredictability of their work commitments. Where an employee has a contractual entitlement to a fixed starting and finishing time he or she cannot be obligated to start or finish work at any other time as any variation from the contractual term can only be by mutual agreement. Where, however, an employee’s starting and finishing time is determinable solely by the employer the law requires that in order to maintain some degree of work / life balance reasonable notice of starting and finishing times must be furnished by the employer…In all the circumstances of the case the Court considered that the appropriate mode of redress is an award of compensation in the amount of €2,500.”

Section 17 of the Act sets out requirements in relation to the provision of information to an employee in relation to working time, as follows:-

• (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.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

The Act provides that where an employee’s normal hours of works are not specified in a contract of employment, or alternatively in an employment regulation order, registered employment agreement or collective agreement applicable to them, an employee is entitled to advance notice of the hours that they are required to work. That notice should be given by the employer to an employee at least 24 hours in advance of the hours or days that the employee is required to work that week.

Where an employee is on a rest day, the employee is entitled to be notified about the hours that they are required to work before the last period of 24 hours when they were required to work.

In the within appeal no details of a breach of section 17(1) of the Act were provided to the Court by the Complainant and the Court must find that no breach of section 17(1) of the Act occurred.

The Court was provided with undisputed details that the Complainant was on scheduled rest days on 21, 22, and 23 April 2018. He received notice at 9pm on Sunday 22 April 2018 of his forthcoming shift hours and started work at 7.05 am the following Tuesday 24 April 2018. SIPTU, on behalf of the Complainant, submits that when a driver is on back-to-back rest days, he should receive notice of his shift 24 hours before going on his rest days. The Respondent accepts that a breach of section 17(3) the Act occurred in this instance.

In light of these undisputed facts, it is clear that the Complainant was not notified about his forthcoming working hours within the timeframe specified at section 17(3) of the Act. As a result, the Court finds that the complaint in relation to a breach of section 17(3) of the Act is well founded.

Where a complaint is well founded an Adjudication Officer (and the Labour Court on appeal) can require the employer to comply with the relevant provision that has been breached. In this case, the Court is satisfied, having regard to the submissions made by both parties, that measures were put in place by the Respondent in 2018 following the conclusion of a collective agreement with the relevant unions that removed the potential for further breaches, systematic or otherwise, arising under section 17.

The key matter for the Court to consider in this case is the appropriate remedy (if any) in circumstances where, as acknowledged by the parties, a breach of Section 17(3) the Act occurred.

The matter of compensation where a complaint is well founded is addressed at Section 27(3)(c) of the Act which sets out that an employer may be required to pay to an 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.

In determining what (if any) compensation is just and equitable, an Adjudication Officer (and the Labour Court on appeal) must apply the principles of effectiveness, deterrence and proportionality as derived from European law and, in particular, the judgment of the European Court of Justice in Von Colson and Kamann v. Land Nordrhein-Westfalen (Case C-14/83) [1984] E.C.R. 1891. That case addressed a question regarding equal treatment for men and women as regards access to employment.

Commenting on the judgement of Von Colson in the case of DWT15125 C & F Tooling Limited and Jason Cunniffe the Labour Court took note of the CJEU’s statement that:-

• “Although Directive 76/207/EEC, for the purpose of imposing a sanction for the breach of the prohibition of discrimination, leaves the member-States free to choose between the different solutions suitable for achieving its objective, it nevertheless requires that if a member-State chooses to penalise breaches of that prohibition by the award of compensation, then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection with the application. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.

Addressing breaches of the Organisation of Working Time Act 1997 in [2014] IEHC 263 – Piotr Brysewski and Fitzpatrick and Hanleys Limited trading as Caterway and the Labour Court, Birmingham J noted :-

• “The circumstances in which breaches of the Act of 1997 occur are likely to vary very significantly. Some cases may involve breaches that are major and deliberate with serious consequences for the employees involved and could probably, in some cases, be described as egregious. On the other end of the spectrum, there may be breaches which were unintentional, minor, rectified and, in practice, were of little consequence (para 14).

Awards of compensation for breaches of the Act vary significantly having regard to the circumstances of each case. By the union’s own assessment to the Court, the contravention of the Act in the within appeal lies on the middle to lower range of seriousness in a scale of breaches. In the Court’s view the breach lies at the lower end of that spectrum.

The Complainant at the time of the breach was aware of when he was due to work ‘early’ or ‘late’ duties over a five-week cycle. He knew which days were rostered as ‘work’ or ‘rest’. The Complainant had three days’ rest prior to working his shift on 24 April 2018 and received more than 24 hours’ notice of his forthcoming workings hours, albeit that period fell during his rest day. On the facts of the case as presented, the Court is of the view that the Complainant suffered no adverse consequences of any materiality as a result of the sole breach upon which his claim for compensation is grounded. Furthermore, the Respondent amended its notification procedures to ensure compliance with section 17 of the Act. In all the circumstances the Court finds that the breach was minor in nature.

In the Court’s view the breach of the Act that occurred in this case can be differentiated from the cases of DWT179 A Public Transport Company and A Worker, which addressed multiple breaches of Section 17 and DWT1640 Philmic Limited T/A Premier Linen Services and Edgards Petraitis which addressed breaches of multiple sections of the Act.

While there may be mitigating factors in relation to this claim, nevertheless the Act was contravened and, in the view of the Court, this fact must be marked by the Court in considering the question of redress. The Court is obligated to consider if an award is just and equitable having regard to all the circumstance. In assessing quantum the Court must assess where on the spectrum a breach lies. In this case, the Court has found the breach to be minor in nature, where the Complainant suffered no loss or hardship.

The Court believes that an award of compensation in the amount of €150 to be fair and proportionate having regard to all the circumstances.

The decision of the Adjudication Officer is varied accordingly.

	Signed on behalf of the Labour Court
	Katie Connolly
SL	______________________
26 September 2022	Deputy Chairman