ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003746
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005517-001 | 27/06/2016 |
Date of Adjudication Hearing: 03/03/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 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.
Background:
The Complainant commenced employment as a driver with the Respondent on 25th February 2007 and he is still employed by the Respondent. He is paid a gross hourly rate of €14.00 and his hours of work vary. A complaint under section 27 of the Organisation of Working Time Act was received by the Workplace Relations on 27th June 2016. The Complainant alleges that he was penalised by his employer for refusing to cooperate with a breach of the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant's representative submitted that the Complainant made a number of complaints in 2014 to his employer over alleged breaches of the Act. The Complainant went through the internal procedures with regard to his complaints but maintains that these complaints have not yet been properly resolved.
The Complainant believes that he was penalised as a result of making these claims in 2014 in that some of his terms and conditions of employment were changed to his detriment. The Complainant says he was penalised in four ways:
He was made make deliveries to places that do not have loading bays.
His hours of work were reduced to less than 39 hours per week.
He is allocated old lorries whereas some people get new lorries all the time.
That he is forced to park on double yellow lines and breach rules in order to complete deliveries.
In questioning the Complainant agreed that other drivers are asked to deliver goods to places without loading bays but he is asked to do it all the time.
In closing the Complainant stated that he had only brought these things up as he wanted things to be the way they were before 2014.
Summary of Respondent’s Case:
The Respondent explained that changes were made to the "Run System" in 2014. Up to 2014 a run might take 10 or 11 hours to complete but the driver would always be paid 12 hours plus subsistence. Following a review which took place in February 2014 the system was changed and drivers were paid the normal hourly rate only for hours worked.
Issues arose shortly after when the Complainant began to take 15 hours to complete a run which had previously taken him 10 or 11 hours to complete. This length of time driving could constitute a breach of the Organisation of Working Time Act 1997. When asked about this at the time the Complainant told his employer that he could not do the run in a shorter time. The decision was then made to move him to various shorter runs, thus eradicating a possible breach of the Act.
The Respondent listed the alleged penalties imposed on the Complainant since he raised his complaint, as per a letter the Complainant wrote to management on 23rd March 2016. All of these issues were raised in 2014 and it is the Respondent's case that all but one of these complaints are out of time.
The only one of the issues not out of time, according to the Respondent, is the claim of reduced hours. The Respondent denies that there has been any reduction in hours; the average hours being worked are the same now as before the complaint was made.
The Respondent submitted that the Complainant has refused to demonstrate where any rules were or are being broken. In addition the fact that other drivers do the same runs as the Complainant demonstrates that he is not being penalised.
In addition the Complainant is now only assigned to runs that have loading bays. In relation to the allocation of lorries, lorries are allocated to routes not drivers. Thus the newest trucks are allocated to the most arduous routes.
It is the Respondent's view that the "penalties" referred to by the Complainant cannot be deemed as penalties as they are all legitimate decisions made in accordance with the proper management of the Respondent's transport fleet.
In closing the Respondent stated that there was no victimisation or penalisation, just a difference of opinion.
Findings and Conclusions:
The question to be answered in relation to this complaint is whether the Complainant was penalised as a result of issues he raised with the Respondent in February 2014.
Section 26 of the Organisation of Working Time Act states:
- — (1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act or the Activities of Doctors in Training Regulations.
In University College Cork v Keohane WTC/01/26 DWT 0147 28 November 2001 the Labour Court stated that:
"In order to make out her complaint of penalisation it is necessary for the complainant to establish a causal link between her activities in seeking to have section 19 of the Act applied by the respondent and some detriment which she suffered in her employment. Such a link can be established by reference to particular facts or by inference from all of the surrounding circumstances. The activities alleged to have given rise to the detriment suffered must, however, relate to the claimant having opposed an act which is unlawful under the Act of 1997."
In this case the Complainant has stated that he was penalised in four ways for opposing an act which was unlawful under the Act. The origin of the changes which the complainant portrays as penalties all stem from the change of run. However, this run was changed to prevent any possible breach of the Act. The alleged penalties have been rebutted by the Respondent and I accept the rebuttals.
The Complainant has not alone failed to show a causal link between his opposition to alleged breaches of the Act and some detriment suffered but has also failed to show that any real detriment has been suffered.
Decision:
Section 41 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.
For the reasons set out above, I find that the complaint is not upheld.
Dated: 14th June 2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Driver, penalisation. |