ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002931
Complaint(s)/Dispute(s) for Resolution:
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
Date of Adjudication Hearing: 03/08/2016
Workplace Relations Commission Adjudication Officer: Jim O'Connell
In accordance with Section 41(4) of the Workplace Relations Act,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The claimant was employed by the respondent on the 26th January 2012 as an HGV driver. It was submitted on his claim form that ;
- he was required to work more than the maximum permitted number of hours.
- The claimant used a 17 week reference period from the 1st June 2015 to the 3rd April 2016 on his claim form.
The submission on behalf of the claimant raised matters
- Failure “to ensure that working time limits, breaks and rest periods are complied with”
- Failure “to comply with their obligations to notify mobile workers of the Regulations”
- Failure” to comply with their obligation in respect of providing records to mobile worker who requests them,”
The respondent denied that they were in breach of any regulation and the claimant was raising additional items that were not on his complaint form.
The respondent submitted with the assertions that with regard to working time limits below and in respect of the reference to breaks and rest periods, the position is that the Claimant did not set out any such complaints in his initial claim form. The Claimant was quite specific in the aforementioned complaint form in that he set out that his complaint related to a requirement "to work more than the maximum number of permitted hours" and thus the only potential claims before you can be under Regulations 5(l)(a) and 5(1)(b). Therefore, there are no claims before you with respect breaks and rest periods. Furthermore and in any event, we note that the Claimant failed to substantiate any such complaints in his Submission.
It was stated the position no complaint with regard Regulation 11 was set out in the Claimant's complaint form and therefore this matter is not before you.
Furthermore and in any event, the position is that the Respondent met the obligations placed upon them by Regulation 11. It was further submitted the fact is that no such claim was made in the initial claim form .
The respondent categorically denied that they failed to comply with the provisions of Section 12 (f) of the 2012 Regulations, i.e. to provide the Claimant with a record of the hours worked by him. The records in this regard were furnished by hand to the Claimant on 9th August 2016.
The Claimant has furnished calculations of his purported working time which had been made by reference to the Claimant's pay slips. This is not an accurate manner in which to calculate working time and the purpose of pay slips are to record pay and not working time. Regulation 12 (a) requires employers to "maintain a record of the working pattern of a mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and period, of availability". The Respondent had complied with the foregoing and in this regard we have furnished the appropriate records in this regard. The records are entirely in line with the legislation in that they are compiled on foot of daily log sheets which are filled out by each driver. In essence, these log sheets are submitted by the drivers on the completion of their shifts and are then entered into the system from which the records submitted are printed.
The Claimant has made various points with regard tachograph records. However and as explained above, the Respondent have not relied upon tachograph records and accordingly the points raised in this regard are entirely irrelevant. The Labour Court has set out on a number of occasions that tacograph records are an inadequate record of working time and it is for this reason that the Respondent have not sought to rely on same.
The Claimant has set out a period from the 1st June 2015 to the 3rd March 2016. Under the provisions of the 2012 Regulations this is not a proper reference period and accordingly the figure set out has no relevance whatsoever. In this regard as explained at the initial hearing, Section 4 (1) (c) specifies that employers can elect 17 week rolling reference periods once they put the employees on notice of same. The Respondent has done the foregoing and accordingly we attach documentation which shows that employees are notified of the application of the 17 week rolling periods.
The Claimant has also set out calculations with regard the reference period from the 3rd August 2015 to the 6th December 2015. As you will see, from our initial Submission an applicable reference period did commence on the 3rd August 2015. This reference period concluded on the 29th November 2015 and not as alleged by the Claimant on the 11th December 2015 as it is clear from the Submission, the Claimant has completed his calculations on the basis of an 18 week reference period for which there is absolutely no basis whatsoever.
In relation to the claim under Regulation 5 (1)(a) of the 2012 Regulations the Claimant sets out two specific weeks where he alleges that he was required to work in excess of 60 hours.
In the first instance he has set out the week commencing the 16th November 2015. It appeared from the records submitted that the hours worked by the claimant were 5 minutes over the 60 hour limit. It was submitted by the respondent upon having taken a closer look at the records, that it appears that this discrepancy arose from the Claimant incorrectly recording his working time hours It was further submitted that the Claimant was required to undergo re-training on the recording of his time in February 2016 because of issues such as this. In light of the aforementioned records it is the case that the Claimant worked 57 hours and 58 minutes and as such there was no breach of the Regulations.
The Complaint was received by the service on the 25th April 2016
Both parties made submissions at the hearing and additional submissions were received from the respondent on the 16th September 2016
I find that the position with regard the reference period is very clear. The Labour Court have issued a conclusive determination in this regard in MDS Distribution Limited v. Grabowy (RTD 3/2015) . I find in this regard the Labour Court set out that the time limit in respect of contravention of Regulation 5(l)(a) ran from the end of the week in which the maximum number of working hours was exceeded and furthermore that the time limit in respect of a contravention of Regulation 5 (1)(b) from the end of the reference period or the date on which the employment ended, whichever was earlier. I find that in accordance with Regulation 18 (4) states that "an Adjudication Officer shall not entertain a complaint under this Regulation if it is presented to him or her after the expiration of a period of six months beginning on the date of contravention to which the complaint relates and the date of termination of the Contract, "Whichever is earlier".
I find the Claimant has sought an extension of the applicable reference period. Regulation 18(6) is the relevant provision in this regard. The aforementioned provision states as follows -
"Notwithstanding paragraph (4), a rights commissioner may entertain a complaint under this Regulation presented to him or her the expiration of the period specified in paragraph (4) but not later than 6 months after such expiration if he or she is satisfied that the failure to present the complaint within that period was due to exceptional circumstances. "
I find that no reasonable circumstances was presented to grant such an extension,
I find that having reviewed all documentation no breach of the regulations 5(1)(a) or 5(1)(b) occurred.
I find that in relation to the matters raised by the claimants representatives at the hearing that these are new claims and are not properly before me.
I find that having examined all documentation and based on the evidence presented I make the following
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint is not well founded and falls.
Dated: 26 January 2017