ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003433
Complaint for Resolution:
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
6th May 2016
Date of Adjudication Hearing: 30th September 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 6th May 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Organisation of Working Time Act. At the outset of the adjudication, the complainant indicated that he was withdrawing two of the complaints, leaving the complaint pursuant to section 17 (provision of information regarding working time) and the section 26 claim (refusal of an employee to cooperate with an employer in breaching the Act) to be determined. The complainant is a bus driver and the respondent is a public transport company.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at the Hearing:
A bus driver
A public transport company
Complainant’s Submission and Presentation:
The complainant commenced employment as a bus driver in July 2007 and has been based at the same depot since then. He described his employment as whole-time and that he is designated as a “spare driver”. He covers routes and shifts that colleagues cannot fulfil. He could be assigned to any route and start at any time of day. He acknowledged that he would generally know whether he was on an “early” or “late” shift but an “early” could finish at any time up to 9pm. He gave examples of shifts he might work, for example 4.12am to 11am, 6am to 2pm, 7am to 7pm or 5.30pm to 1am. He outlined that he had expected to be “marked in” after about five years, but this had not occurred. The complainant outlined that the first he, as a spare driver, would know of his working day the next day would be via a text message sent at 1pm. He did not accept that there was a collective agreement in place regarding this practice.
The complainant outlined that in 2014, he had complained about the short notice given to him of his starting time on the following day. He went on a period of sick leave and was able to return in April 2014 as he had been provided with a temporary roster. This ceased in April 2015 as a named inspector had reallocated him to being a spare driver. He raised his entitlements under the Organisation of Working Time Act and the respondent was then willing to accept receipt of a formal grievance from him. He said that he had been in a trade union but was no longer a member.
The complainant said that the consequence of this notification practice was fatigue. He could be on a 4.12am start one day (where he had to leave for work at 3.30am) and followed by a “bogey” shift the next day, i.e. a middle duty and perhaps a split shift. He had taken three days of sick leave in March 2016. This was a health and safety issue affecting a great many spare drivers. There were no exceptional circumstances to justify the late notification of the follow day’s work rota and there was no collective agreement in place to cover this arrangement. In any event, the complainant was now not a member of the union.
The complainant provided a transcript of the text messages he received on a daily basis from the respondent giving the details of his duty the following day. At the adjudication, he deciphered the transcript to say that in the period of the 30th December 2015 and the 4th May 2016, he had not received 24 hours of notification on 39 occasions and had received sufficient notification on 32 other occasions. On most occasions, the complainant was given a duty, i.e. a start time and route. Less frequently, he was required to attend the garage in order to be assigned a duty at that time.
In relation to the penalisation claim, the complainant referred to grievance documentation he raised in 2014 regarding loss of shifts he incurred after complaining about insufficient notification. He exhibits correspondence of the 13th August 2014 and later correspondence regarding this issue. The complainant referred a further grievance in August 2015 and in later correspondence states that he is being penalised in losing days of work. In correspondence of the 28th September 2015, the respondent states that on the 11th September 2015, the complainant had refused to work as he had not received 24 hours’ notification. The complainant lodged loss of earning claims in respect of the 11th and 17th August 2015 when he did not drive duties because of the lack of sufficient notification.
Respondent’s Submission and Presentation:
The respondent outlined that this case related to the hours the complainant worked and the notification he received of those hours. It stated that because of the nature of the business and the industrial relations environment in which the respondent operates, it was essential that the unions and respondent work closely together. It outlined that notification of working hours is covered by collective agreements, referring to the guide book issued by one named union. The respondent asserted that it has operated the practice in relation to the notification of hours for 30 years and it would involve great change to give more notification time, for example requiring earlier notification of medical absences. The respondent referred to efforts to address this issue in a wider industrial relations context. At the adjudication, the respondent pointed out that there were daily sick absences of about 6%. The notification procedures was not in breach of the Organisation of Working Time Act as the practice was covered by a collective agreement reached by the respondent with the respective trade unions.
On the 21st October 2016, the respondent made additional submissions in reply to follow-on submissions made by the complainant. The respondent asserts that the notification procedure was of long standing and carried out in agreement with the trade unions. It referred to attempts to address this issue in order to provide more notification time.
Findings and reasoning:
The complainant is a bus driver and the respondent is a public transport company. The complainant asserts that he is regularly given insufficient notice of his start time and duty on the following day, in breach of section 17 of the Organisation of Working Time Act. He states that he has been penalised in raising complaints about his entitlements, including loss of earnings. He also says that his health has been detrimentally affected by his hours of work. The respondent denies the claim. It states that its practice of notifying spare drivers is long standing and governed by collective agreements. It refers to negotiations in train to remedy this matter at a company-union level.
It is worth setting out section 17 of the Organisation of Working Time Act in full:
“17.—(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.
(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.
(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.”
Having considered the evidence and submissions of the parties, I make the following findings. The complainant is one of a number of drivers who are designated “spare drivers”. The respondent notifies them at around 1pm of their duty on the following day and this dictates their start time. As illustrated by the complainant over a period of a number of months, he received less than 24 hours of notification in more than 50% of cases. At the adjudication, there was a great deal of discussion as to whether this practice was covered by a collective agreement. My reading of section 17 is that a contract of employment, collective agreement etc may determine an employee’s starting time; it does not abrogate the employee’s entitlement to 24 hours of notice of their starting time where they do not have a contracted start time. Subsection 4 addresses unforeseen circumstances arising outside of a notification of working hours and the working of additional hours. According to the notifications detailed by the complainant, most related to designated duties and less frequently was he required to attend the garage to cover then unspecified routes. In the main, the notifications did not relate to such additional hours.
I find that the complainant is entitled, pursuant to section 17, to receive 24 hours of notice of his working time the following day. I appreciate the logistical and other challenges faced by the respondent. At its root, however, the Organisation of Working Time Act is a health and safety measure and employees are entitled to sufficient notification of working time. Even if the notification procedure was covered by a collective agreement, the respondent would still be in breach of section 17.
In assessing redress, I make an award of €1,200. I take account of the loss and inconvenience incurred by the complainant in having insufficient notification of working time, in particular due to the range of times a bus driver is expected to start work. This could range from a 4.12am start to a start time in the late afternoon.
I accept the respondent’s evidence that the notification procedure is a long standing practice and that it acted in good faith. For this reason, I will not make a finding that the respondent penalised the complainant in removing hours from him or the other matters raised by the complainant. While I appreciate that the complainant has raised this issue for a considerable period of time, I find that the complaint of penalisation does not succeed. If the complainant believes that following this determination, he is subsequently penalised, he will be able to advance a separate penalisation claim.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint made pursuant to section 17 of the Organisation of Working Time Act is well founded and the respondent shall pay to the complainant redress of €1,200.
I find that the complaint made pursuant to section 26 of the Organisation of Working Time Act is not well founded.
Dated: 7th December 2016