ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005732
Parties:30.03.17
Complainant | Respondent | |
Anonymised Parties | Drainage Operative | Drain Repair Company |
Representatives | Gary Mulchrone Gilvarry & Associates, Solicitors, | Michael O'Neill M. O'Neill & Co |
Adjudication Reference: ADJ-00005732
Parties:29.05.17
Complainant | Respondent | |
Anonymised Parties | Drainage Operative | Drain Repair Company |
Representatives | Gary Mulchrone Gilvarry & Associates, Solicitors, | Michael O'Neill M. O'Neill & Co |
Parties:10.07.17
Complainant | Respondent | |
Anonymised Parties | Drainage Operative | Drain Repair Company |
Representatives | Gary Mulchrone Gilvarry & Associates, Solicitors, | Michael O'Neill M. O'Neill & Co |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007919-001 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00007919-002 | 01/11/2016 |
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 | CA-00007919-003 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00007919-004 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00007919-005 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-006 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-007 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-008 | 01/11/2016 |
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 | CA-00007919-009 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-010 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-011 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-012 | 01/11/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007919-013 | 01/11/2016 |
Date of Adjudication Hearing: 10/07/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] 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).
Further information and clarification was sought from the parties post hearing and the final submision was received on the 18.01.18
Terms of Employment (Information)Act 1994
Summary of Complainant’s Case
The claimant was employed with the respondent from the 23rd.Sept. 2012 to the 27th.Aug. 2016.He submitted the respondent was in breach of the Act for failing to furnish the claimant with written terms and conditions of employment in accordance with Section 3 of the Act. |
Summary of Respondent’s Case:
The respondent accepted that the claimant was not furnished with written terms and conditions of employment – it was advanced however that the respondent had since ensured that all employees were now furnished with a written contract. |
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.
Having considered the evidence presented by the parties and noting that the non provision of written terms and conditions of employment was a contributory factor to the disputes that arose between the parties , I am upholding the complaint .Furthermore , I am satisfied that the claimant was prejudiced by virtue of the non provision of written terms and conditions of employment and I require the respondent to pay the claimant €2,000 compensation within 4 weeks of the date of this decision.
Payment of Wages Act 1991
Summary of Complainant’s Case:
In his complaint form the claimant submitted that “ My wages were regularly docked and I will provide full figures to the best of my ability with my submission in due course”.The claimant submitted that he was regularly docked €100 from his wages and submitted that his pay was frequently delayed.
A schedule of hours worked by the claimant was submitted into evidence and it was submitted that this was based on a daily diary compiled by the claimant from January 2016 to the termination of his employment on the 27th.August 2016 .It was submitted that the average weekly number of hours worked were 56 hours and 50 minutes and the non payment for hours that exceeded the 40 hour week constituted a breach of the Act.It was further submitted that an overtime premium should apply in light of the early morning start time and late finishing time.
It was submitted that when he took annual leave his wages were reduced by €100 per week without explanation.
In his direct evidence the claimant stated that a typical working week could involve travel to Kerry, Cork, Mayo , Dublin or Wexford. The claimant stated that he would be at the respondent’s yard at 7.00a.m. and would be expected to be on site at 8.00a.m.If he was travelling to Wexford he would be required to be at the yard at 4.30a.m. as he would incur a 3.5 hour journey to get on site .He may finish in Wexford and drive back to Mayo that night to be on site in Sligo the following morning . He stated that the diaries he was submitting into evidence recorded the time he left , the time he reached the site and what he did while on site .He maintained he worked 60-70 hours per week and was paid for a 40 hour week. The claimant said he started keeping a diary on the suggestion of his wife who was concerned about the amount of overtime he was doing. The claimant advanced that he worked on his own 20% of the time .He submitted that he was denied an 11 hour rest period almost every week he worked. The claimant said he never got a contract of employment and consequently had no set hours. He complained of being deducted €100 per week without notice or explanation and cited the week of his honeymoon as a week when that deduction was made. He said the first he knew about the €100 being an expense/subsistence payment was at the first hearing. He stated that he did not complain about the deduction because the respondent was unapproachable and his attitude when you did complain was that there were plenty of people looking for jobs. The claimant stated that he knew of another worker who had complained and lost work as a result. He believed he was endangering his job by complaining.The claimant asserted that things were ok when he started initially but got worse overtime – he rarely knew where he would be the following day and the hours got longer over the 2 year period.
The claimant insisted that he left the employment because he was constantly “ knackered”. He said that when he started off he was told he was on a 40 hour week working from 8.00a.m. to 5.00p.m.He stated his wages were often late and that he ate on the go” if you got a chance”. He contended that the company credit card covered hotel stays but did not cover lunch. The claimant said that he invited the respondent to his wedding because he could n’t not invite him and he had invited other employees to go. The claimant spoke of being verbally abused by the respondent and recounted his allegation of the respondent saying “ Here’s your gang Jethro” when referring to a group of people with Downe’s Sysndrome while working on O’Connell Street in Dublin.
Under cross examination the claimant said that he got his friend a job with the respondent because he was really stuck and needed a job. He contended that it should have been made clear on his payslip that €100 per week was being paid for subsistence/expenses. The claimant was unable to identify a late payment in 2016 but suggested it may not have happened that year. The claimant was challenged on alleged inconsistencies in the diaries including varying start and finishing times. He stated that the reliance by the respondent on bank ATM withdrawals was inaccurate and inappropriate as they did not accurately reflect the transaction times. On re- examination the claimant set out explanations for the varying start times and clarified why the journey to ok so long on the 9th.June 2016 when he had to divert to take a colleague into Galway.
The claimant was adamant that he was never told to take a lunch break and he never took an hour for lunch. When he was travelling he asserted that he ate on the go when he got a chance.
The claimant’s wife stated in evidence that she encouraged the claimant to keep a diary – she never knew where he was going to be from one day to the next and they could not make any plans. She stated that she and the claimant used each other’s debit cards and the transaction times were not an accurate reflection on where the claimant was at any particular time. She described how the claimant broke down when he discovered that he had been deducted pay - she feared he might suffer a nervous breakdown .She herself was pregnant at this time. She recounted her experience of hearing the claimant’s account of the allegation relating to the respondent’s name calling.
In summing up the claimant’s representative submitted that one of the main issues was the issue of travel time constituting working time and the provisions of the ECJ decision on Tyco was invoked in support of these arguments. It was advanced that during those hours the claimant was at the respondent’s disposal and consequently this was working time that the claimant was never paid for. It was submitted that no real evidence of getting time off in lieu was presented by the respondent. It was submitted that on 33 occasions over an 8 month period the claimant did not get his 11 hour rest break.The respondent , it was submitted , had confirmed that he did not check the time sheets completed by his staff. It was submitted that the Organisation of Working Time Act was designed to ensure that excessive hours were not allowed. It was argued that the use of bank statements to track the claimant’s whereabouts was unconvincing as the atm transactions were an inaccuracte reflection of when the transaction took place. It was submitted that this was borne out by confirmation from AIB that the time set out in the statement was the time the withdrawal was approved by the bank. The claimant was never made aware that his pay included €100 for expenses/subsistence.It was contended that Mr.B was impossible to approach and the claimant had nowhere to turn to to have his grievances addressed. It was contended that the power balance was all on one side and that for the sake of his relationship and in order to avoid any further stress or deterioration n his health he had no option but to resign. He was entitled to resign and the respondent had no procedure through which the claimant could channel his grievances.
Summary of Respondent’s Case:
It was submitted that the claimant’s salary was €500 net per week plus €100 for travel expenses.The late payment of wages was denied and it was submitted that the €100 per week shortfall arose when the claimant was on annual leave and did not incur expenses. It was submitted that over the week of the 29th.August 2016 , the complainant took one days of unpaid annual leave and that this accounted for the shortfall that week. It was submitted that the records of hours worked were misleading and inaccurate and in the initial hearing the respondent set out 16 examples of what was described as misleading assertions .It was advanced that through perusing vehicle trackers and bank withdrawals and through an analysis of the dates on which the claimant was office bound , it had been established that the claimant could not have been at the locations claimed.
In a later submission , the respondent replied specifically to the diary times submitted by the claimant over a 32 week period and factored in deductions of “ 1 hour each day for meals/break and allowing 20mins travel time to and from the claimant’s home to the yard” amounting to daily deductions of 1 hr 40 mins per day and 8 hours 20 mins per week.It was also asserted that there were numerous inconsistencies in the travel time claimed by the claimant.
It was submitted that the claimant’s allegation of late payment of wages happened on one occasion only and was attributable to the absence of the respondent’s secretary and an IBB banking breakdown.
The claimant’s arguments about the inaccuracy of atm transactions was disputed and it was submitted that the respondent had checked with his own bank and been advised of the accuracy of the withdrawal times. The respondent undertook to submit supporting documentation confirming this but no such documents ere furnished.
The respondent Mr.B asserted that he was never approached by the claimant about any grievances or about being unapproachable. He stated that the claimant put his letter of resignation through his letter box in the middle of the night ; he didn’t answer his calls when he rang him about it and he alleged that the claimant ran away when he tried to approach him about the resignation in a car park .Mr.B vehemently denied making the comment about Downes Syndrome people to the claimant .The respondent asserted that he kept all required statutory employment records and that these time sheets were completed by the claimant on a weekly basis. He submitted that he never made a deduction from the claimant’s wages – he stated that the €100 subsistence/expenses payment was not paid when the claimant was on holidays as he did not incur any such expenses when he was off. He stated that he now had an administrative person in his office and all holidays and public holiday entitlements were paid. He said that when the lads were off site , the onus was on them to take their lunch breaks. He stated that if you deducted the one hour lunch break and the claimant’s travel to and from the yard and factored in holidays and bank holidays the claimant worked an average of 43 hours per week. The respondent asserted he never docked money from the claimant – that they were friends and he was invited to his wedding and his stag party. He suggested the claimant had misrepresented his working time in his diaries and was factoring in times it took to travel to the yard.
He stated under cross examination that the office and yard were at the back of his house- the claimant started in the yard not in the office. He submitted that he never told the claimant to be at the yard at 7.00a.m.He stated that his records were based on google maps , not on van trackers. He confirmed that he never advised the claimant that his pay included €100 expenses/subsistence payment but stated that everyone else knew this was the case .He was referred to the records for the 18th.March 2016 which record the claimant working 14 hour day- it was submitted by the claimant’s representative that there was nothing to demonstrate that the claimant had been paid for those hours. He asserted that evidence regarding payment for holidays and bank holidays was clear from the claimant’s own time sheets which the claimant completed himself .He maintained that where staff worked over and above regular hours they got paid time off in lieu. He submitted that staff would sometimes leave early. The respondent gave a breakdown of the payment of €270 made to the claimant on the 28th.January which included payment for diesel , tolls and the remainder for the claimant. The respondent advanced that the claimant never raised any issues with him about excessively long hours including the 17th.Feb. 2016 and the 5th.May 2016.The respondent was unable to explain non payment to the claimant for the 5th./11th.August and submitted that there was confusion about annual leave pay being owed by the claimant. Mr.B stated that if the claimant took just one day off in a week , he would not make a deduction from his subsistence allowance. The respondent submitted that his employees were on a salary as opposed to a daily or weekly rate of pay. He indicated that he did not examine time sheets or records and submitted that staff knew from their pay slip if they were receiving TOIL.
The respondent stated that he paid for morning breaks but that lunch time was unpaid. He submitted that the claimant smoked 20 cigarettes a day. When questioned how he knew if staff were taking their lunch breaks he replied “ they are big lads”. The respondent suggested that the claimant on occasions arrived in early to work without having been requested to do so and he was found asleep in the driveway. He asserted that he pulled the claimant many times about arriving at work too early. He insisted that all staff were salaried and no overtime was paid.
Witness for the respondent Mr.PG submitted that the respondent was approachable and friendly .He stated that he took lunch breaks every day and several cigarette breaks throughout the day. He submitted that he would sit in the van for an hour at lunchtime. He asserted that he worked with the claimant and did most of the driving. He usually started at 8.00a.m.He confirmed that he had a signed contract and was aware of his terms and conditions of employment. He knew his place of work would vary and that he was required to work all over the country. He thought the claimant enjoyed his job and he had no recollection of the claimant complaining to him about the remark relating to Downe’s Syndrome and denied witnessing the incident. Where he was recorded as having worked 55 or 61 hours per week, it would include travel .He contended that if he worked late he might be told to take the next day off.
In summing up the respondent’s representative submitted that the claimant had factored in annual leave and public holidays in his inaccurate calculations and that when the respondent did their calculations the claimant worked less than a 48 hour week. It was argued that the claimant had exaggerated his records on 17 occasions and that the claimant was not required to return to Mayo and that he could have availed of overnight accommodation on the company credit card . When Mr.B tried to engage with the claimant following his resignation , the claimant refused to speak to him. He had gotten his best friend a job with the company – this was inconsistent with the picture painted by the claimant. The claimant had conspired against the respondent by keeping diaries- this was underhand and the claimant had never raised a grievance. The respondent was a reasonable employer and had not made any illegal deductions to the claimant’s wages. The respondent categorically denied the claimant’s allegations about the name calling incident in Dublin.
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.
The claimant’s complaint was received on the 1st.Nov. 2016 – the time frame for consideration of this complaint is the 1st.May 2016 – 1st.Nov. 2016.The claimant’s employment was terminated on the 27th.August 2016.
I have reviewed the evidence presented at the hearings and the voluminous submissions of both parties.I accept the respondent’s contention that there are inaccuracies contained in the claimant’s diary for example factoring in travel time from home to the yard and I further accept the respondent’s arguments that the claimant was not always required to return to base and could have chosen to stay overnight in a hotel. However , I do note there were a significant number of occasions where owing to the work assignment the following day , the claimant was obliged to return to Mayo late in the evening. I further accept that the claimant was at his employer’s disposal while incurring travel and that consequently the claimant was working during those times – this is consistent with the reasoning in the ECJ Tyco finding. I accept the claimant’s representatives contention that the respondent put no compelling evidence forward to demonstrate that time off in lieu was given as a matter of course and have noted the respondent’s acknowledgement that he did not monitor his employees working hours. Additionally , I found the claimant’s evidence of the hours worked to be convincing .Accordingly, while I acknowledge that the claimant’s records were exaggerated on occasions, I am partially upholding the complaint and find that the non payment of wages for overtime worked constituted an illegal deduction. I require the respondent to pay the claimant €1, 750 compensation within 42 days of the date of this decision.
I found no compelling evidence was advanced to support the complaint of delayed payment during the relevant time frame and accordingly I am not upholding this element of the complaint.
Organisation of Working Time Act 1997
Summary of Complainant’s Case:
In his complaint form the claimant asserted that he did not receive his paid holiday , annual leave or public holiday entitlements. He stated that he did not get daily rest periods and – and that in his diary he was excluding the travel time to work .He asserted that he worked excessive hours and did not receive weekly or daily rest periods.
It was submitted that while the claimant was employed to work a 40 hour week , from the outset he exceeded this by 15-20 hours per week and regularly worked a 60 hour week. It was submitted that on a regular basis the work would change on a daily basis from one location to another for example he could be working in Carlow one day and would have to be on site in Sligo or Mayo the following day. The claimant’s diary for the last 8 months in employment was submitted in evidence. It was advanced that the 11 hour rest period between shifts was rarely observed. It was submitted that the claimant’s diary was used on the suggestion of the claimant’s father .It was submitted that from January to the termination of employment , the average weekly hours worked by the claimant were 56 hours and 50 minutes.
It was advanced that the claimant did not get rest periods during the 10-12 hour day – while he would get a chance to grab a meal he was not provided with any structured or organised rest period. He felt constantly under pressure to finish the job within the day “ given the extraordi nary travel requirements involved in his job “ which required him to finish the job , return to base and travel to the next job the following day which could be hundreds of miles away. He was never advised of his entitlements to rest breaks. It was asserted that when the claimant was driving to and from work sites , he was at his place of work and at the disposal of his employer and that this travel had to be factored in as part of his working time.
In his direct evidence the claimant stated that a typical working week could involve travel to Kerry, Cork, Mayo , Dublin or Wexford. The claimant stated that he would be at the respondent’s yard at 7.00a.m. and would be expected to be on site at 8.00a.m.If he was travelling to Wexford he would be required to be at the yard at 4.30a.m. as he would incur a 3.5 hour journey to get on site. He may finish in Wexford and drive back to Mayo that night to be on site in Sligo the following morning. He stated that the diaries he was submitting into evidence recorded the time he left , the time he reached the site and what he did while on site. He maintained he worked 60-70 hours per week and was paid for a 40 hour week. The claimant said he started keeping a diary on the suggestion of his wife who was concerned about the amount of overtime he was doing. The claimant advanced that he worked on his own 20% of the time .He submitted that he was denied an 11 hour rest period almost every week he worked. The claimant said he never got a contract of employment and consequently had no set hours. He complained of being deducted €100 per week without notice or explanation and cited the week of his honeymoon as a week when that deduction was made. He said the first he knew about the €100 being an expense/subsistence payment was at the first hearing. He stated that he did not complain about the deduction because the respondent was unapproachable and his attitude when you did complain was that there were plenty of people looking for jobs. The claimant stated that he knew of another worker who had complained and lost work as a result. He believed he was endangering his job by complaining. The claimant asserted that things were ok when he started initially but got worse overtime – he rarely knew where he would be the following day and the hours got longer over the 2 year period.
The claimant insisted that he left the employment because he was constantly “ knackered”. He said that when he started off he was told he was on a 40 hour week working from 8.00a.m. to 5.00p.m.He stated his wages were often late and that he ate on the go if you got a chance. He contended that the company credit card covered hotel stays but did not cover lunch. The claimant said that he invited the respondent to his wedding because he could n’t not invite him and he had invited other employees to go. The claimant spoke of being verbally abused by the respondent and recounted his allegation of the respondent saying “ Here’s your gang Jethro” when referring to a group of people with Downe’s Syndrome while assigned to a Dublin site.
Under cross examination the claimant said that he got his friend a job with the respondent because he was really stuck and needed a job. He contended that it should have been made clear on his payslip that €100 per week was being paid for subsistence/expenses. The claimant was unable to identify a late payment in 2016 but suggested it may not have happened that year. The claimant was challenged on alleged inconsistencies in the diaries including varying start and finishing times. He stated that the reliance by the respondent on bank ATM withdrawals was inaccurate and inappropriate as they did not accurately reflect the transaction times. On re- examination the claimant set out explanations for the varying start times and clarified why the journey to ok so long on the 9th.June 2016 when he had to divert to take a colleague into Galway.
The claimant was adamant that he was never told to take a lunch break and he never took an hour for lunch. When he was travelling he asserted that he ate on the go when he got a chance.
The claimant’s wife stated in evidence that she encouraged the claimant to keep a diary – she never knew where he was going to be from one day to the next and they could not make any plans. She stated that she and the claimant used each other’s debit cards and the transaction times were not an accurate reflection on where the claimant was at any particular time. She described how the claimant broke down when he discovered that he had been deducted pay - she feared he might suffer a nervous breakdown .She herself was pregnant at this time. She recounted her experience of hearing the claimant’s account of the allegation relating to the respondent’s name calling.
In summing up the claimant’s representative submitted that one of the main issues was the issue of travel time constituting working time and the provisions of the ECJ decisions were invoked in support of these arguments. It was advanced that during those hours the claimant was at the respondent’s disposal and consequently this was working time that the claimant was never paid for .It was submitted that no real evidence of getting time off in lieu was presented by the respondent. It was submitted that on 33 occasions over an 8 month period the claimant did not get his 11 hour rest break. The respondent , it was submitted , had confirmed that he did not check the time sheets completed by his staff. It was submitted that the Organisation of Working Time Act 1997 was designed to ensure that excessive hours were not allowed. It was argued that the use of bank statements to track the claimant’s whereabouts was unconvincing as the atm transactions were an in accurate reflection of when the transaction took place .It was submitted that this was borne out by confirmation from AIB that the time set out in the statement was the time the withdrawal was approved by the bank. The claimant was never made aware that his pay included €100 for expenses/subsistence. It was contended that Mr.B was impossible to approach and the claimant had nowhere to turn to to have his grievances addressed. It was contended that the power balance was all on one side and that for the sake of his relationship and in order to avoid any further stress or deterioration n his health he had no option but to resign. It was submitted that the claimant was entitled to resign because of the respondent’s behaviour.
Summary of Respondent’s Case:
The respondent denied breaching the Act and asserted that the claimant’s records were inaccurate and misleading. It was submitted that the claimant misrepresented the journey time to his home which it was argued was 10 minutes away from the respondent’s site. It was submitted that the vehicle tracker records and the claimant’s own bank records of atm transactions supported the respondent’s contentions with respect to the inaccuracies contained in the claimant’s records. In a later schedule of hours submitted by the respondent , it was contended that the following deductions would have to be made – 1 hour each day for meals/breaks and “ allowing travel time to and from the claimant’s house to the yard “ amounting to 1hr 40 mins per day and 8 hours 20mins per week”. It was further submitted that the respondent used GPS to record drive times from the yard to the site and that this accounted for the further reductions in the respondent’s schedule of hours worked. It was submitted that the respondent’s records demonstrated compliance with the Act , that the claimant was always afforded appropriate rest periods and that his day involved a morning break a one hour lunch break and several cigarette breaks.
It was submitted that the claimant made grossly exaggerated claims regarding attendance times and was factoring in travel time to the yard – it was submitted that the times should be reduced by 40 mins per day for this return trip and by a further hour per day for lunch. It was argued that the claimant submitted schedules he did not work and included times where he was not at work.
The claimant was questioned on obtaining a job 3 weeks after he tendered his resignation and was challenged for never pursuing a formal grievance against the respondent.
The respondent Mr.B asserted that he was never approached by the claimant about any grievances or about being unapproachable. He stated that the claimant put his letter of resignation through his letter box in the middle of the night ; he didn’t answer his calls when he rang him about it and he alleged that the claimant ran away when he tried to approach him about the resignation in a car park. Mr.B vehemently denied making the comment about Downes Syndrome people to the claimant .The respondent asserted that he kept all required statutory employment records and that these time sheets were completed by the claimant on a weekly basis. He submitted that he never made a deduction from the claimant’s wages – he stated that the €100 subsistence/expenses payment was not paid when the claimant was on holidays as he did not incur any such expenses when he was off. He stated that he now had an administrative person in his office and all holidays and public holiday entitlements were paid. He said that when the lads were off site , the onus was on them to take their lunch breaks. He stated that if you deducted the one hour lunch break and the claimant’s travel to and from the yard and factored in holidays and bank holidays the claimant worked an average of 43 hours per week. The respondent asserted he never docked money from the claimant – that they were friends and he was invited to his wedding and his stag party. He suggested the claimant had misrepresented his working time in his diaries and was factoring in times it took to travel to the yard.
Mr.B stated under cross examination that the office and yard were at the back of his house- the claimant started in the yard not in the office. He submitted that he never told the claimant to be at the yard at 7.00a.m.He stated that his records were based on google maps , not on van trackers. He confirmed that he never advised the claimant that his pay included €100 expenses/subsistence payment but asserted that everyone else knew this was the case. He was referred to the records for the 18th.March 2016 which record the claimant working 14 hour day- it was submitted by the claimant’s representative that there was nothing to demonstrate that the claimant had been paid for those hours. Mr.B asserted that evidence regarding payment for holidays and bank holidays was clear from the claimant’s own time sheets which the claimant completed himself. He maintained that where staff worked over and above regular hours they got paid time off in lieu. He submitted that staff would sometimes leave early. The respondent gave a breakdown of the payment of €270 made to the claimant on the 28th.January which included payment for diesel , tolls and the remainder for the claimant. The respondent advanced that the claimant never raised any issues with him about excessively long hours including the 17th.Feb. 2016 and the 5th.May 2016.The respondent was unable to explain non payment to the claimant for the 5th./11th.August and submitted that there was confusion about annual leave pay being owed by the claimant. Mr.B stated that if the claimant took just one day off in a week , he would not make at deduction from his subsistence allowance. The respondent submitted that his employees were on a salary as opposed to a daily or weekly rate of pay. He indicated that he did not examine time sheets or records and submitted that staff knew from their pay slip if they were receiving TOIL.
The respondent stated that he paid for morning breaks but that lunch time was unpaid. He submitted that the claimant smoked 20 cigarettes a day. When questioned how he knew if staff were taking their lunch breaks he replied “ they are big lads”. The respondent suggested that the claimant on occasions arrived in early to work without having been requested to do so and he was found asleep in the driveway. He asserted that he pulled the claimant many times about arriving at work too early. He insisted that all staff were salaried and no overtime was paid.
Witness for the respondent Mr.PG submitted that the respondent was approachable and friendly .He stated that he took lunch breaks every day and several cigarette breaks throughout the day. He submitted that he would sit in the van for an hour at lunchtime. He asserted that he worked with the claimant and did most of the driving. He usually started at 8.00a.m.He confirmed that he had a signed contract and was aware of his terms and conditions of employment. He knew his place of work would vary and that he was required to work all over the country. He thought the claimant enjoyed his job and he had no recollection of the claimant complaining to him about the remark relating to Downe’s Syndrome and denied witnessing the incident. Where he was recorded as having worked 55 or 61 hours per week, it would include travel .He contended that if he worked late he might be told to take the next day off.
In summing up the respondent’s representative submitted that the claimant had factored in annual leave and public holidays in his inaccurate calculations and that when the respondent did their calculations the claimant worked less than a 48 hour week. It was argued that the claimant had exaggerated his records on 17 occasions and that the claimant was not required to return to Mayo at night that he did so of his own accord. When Mr.B tried to engage with the claimant following his resignation , the claimant refused to speak to him. He had gotten his best friend a job with the company – this was inconsistent with the picture painted by the claimant. The claimant had conspired against the respondent by keeping diaries- this was underhand and the claimant had never raised a grievance. The respondent was a reasonable employer and had not made any illegal deductions to the claimant’s wages. The respondent categorically denied the claimant’s allegations about the name calling incident in Dublin.
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.
The claimant’s complaint was received on the 1st.Nov. 2016 – the time frame for consideration of this complaint is the 1st.May 2016 – 1st.Nov. 2016.The claimant’s employment was terminated on the 27th.August 2016.
I have reviewed the evidence presented at the hearings and the voluminous submissions of both parties. I accept the respondent’s contention that there are inaccuracies contained in the claimant’s diary for example facto ring in travel time from home to the yard and I further accept the respondent’s arguments that the claimant was not always required to return to base and could have chosen to stay overnight in a hotel. However , I do note there were a significant number of occasions where owing to the work assignment the following day , the claimant was obliged to return to Mayo late in the evening. I further accept that the claimant was at his employer’s disposal while incurring travel and that consequently the claimant was working during those times – this is consistent with the reasoning in the ECJ Tyco finding. I accept the claimant’s representatives contention that the respondent put no compelling evidence forward to demonstrate that time off in lieu was given as a matter of course and have noted the respondent’s acknowledgement that he did not monitor his employees working hours. Additionally , I found the claimant’s evidence of the hours worked to be convincing – all be it as stated in the Payment of Wages complaint, in part exaggerated .
On the basis of the evidence presented at the hearing I am satisfied that the respondent met their obligations regarding holidays and public holidays.
I have considered the diary evidence of the claimant and while I acknowledge that the claims are somewhat exaggerated , I found the claimant’s evidence to be more convincing than that of the respondent. For example , I found the claimant’s evidence that he ate on the go to be more credible than the evidence of the respondent and his witness .I note in this regard that the respondent did not keep a record of rest breaks taken by the claimant.
I have concluded that the respondent was in breach of Section 11 (daily rest period)and require the respondent to pay the claimant €1,500 compensation within 42 days of the date of this decision.
I have concluded that the respondent was in breach of Section 12 (rest and intervals at work) and require the respondent to pay the claimant €1,250 compensation within 42 days of the date of this decision.
I have concluded that the respondent was in breach of Section 15 ( Weekly Working Hours ) and require the respondent to pay the claimant €1,000 compensation within 42 days of the date of this decision.
European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities )Regulations , 2012,S.I. No.36/2012
Summary of Claimant’s Case
It was submitted that these regulations applied to the claimant given that his work involved driving to and from his work site on a daily basis.It was submitted that the respondent kept no records of travel times by workers thereby putting their health and safety at risk and that driving took up on occasions half their working day.
Summary of Respondent’s Case
The respondent denied any breach of the Regulations.
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.
I have reviewed the evidence presented at the hearing and noted the respective position of the parties.Having considered the submissions I find the claimant does not meet the definition of mobile worker under the Regulations and accordingly I must decline jurisdiction on the matter.
Unfair Dismissal’s Acts 1977-2017
Summary of Claimant’s Case
The claimant it was submitted was regularly exhausted as a result of his excessive working hours and found it impossible to continue in his job. It was submitted that the work was arduous and the long hours were draining. It was submitted that the claimant raised these matters on numerous occasions and was told if he wasn’t happy he could go elsewhere. It was advanced that the claimant’s colleagues had been penalised for raising grievances about pay and conditions. It was submitted that the respondent was completely unapproachable and simply blamed staff when issues were raised with him. It was submitted that the claimant could not express his opinion to his employer for fear of suffering penalisation like his colleagues.
It was submitted that the claimant was regularly abused by his employer in the presence of his colleagues and in his direct evidence the claimant alleged that when working in Dublin one day when a group of people with Downe’s Syndrome passed by ,the employer made a crude and mocking comment “ here comes your gang .”It was contended that the non payment for hours worked , the lack of overtime, the refusal of the employer to address grievances and the domineering attitude of the employer crushed the claimant’s confidence at work leading him to conclude that he had no option for the sake of his health and well being to quit his job and hand in his notice.
It was submitted that on the 27th.August , the claimant wrote to the respondent advising that he could no longer work for him – on that occasion his wages were late and had been deducted by €100 without explanation. It was submitted that because the claimant had no contract of employment he could not invoke a grievance procedure. It was submitted that it was reasonable for the claimant to terminate his employment owing to the conduct of the employer.
The claimant was 3 weeks out of work before he secured alternative employment and was incurring an ongoing loss of €100 per week. In his direct evidence the claimant stated that a typical working week could involve travel to Kerry, Cork, Mayo , Dublin or Wexford. The claimant stated that he would be at the respondent’s yard at 7.00a.m. and would be expected to be on site at 8.00a.m.If he was travelling to Wexford he would be required to be at the yard at 4.30a.m. as he would incur a 3.5 hour journey to get on site. He may finish in Wexford and drive back to Mayo that night to be on site in Sligo the following morning. He stated that the diaries he was submitting into evidence recorded the time he left , the time he reached the site and what he did while on site. He maintained he worked 60-70 hours per week and was paid for a 40 hour week. The claimant said he started keeping a diary on the suggestion of his wife who was concerned about the amount of overtime he was doing. The claimant advanced that he worked on his own 20% of the time .He submitted that he was denied an 11 hour rest period almost every week he worked. The claimant said he never got a contract of employment and consequently had no set hours. He complained of being deducted €100 per week without notice or explanation and cited the week of his honeymoon as a week when that deduction was made. He said the first he knew about the €100 being an expense/subsistence payment was at the first hearing. He stated that he did not complain about the deduction because the respondent was unapproachable and his attitude when you did complain was that there were plenty of people looking for jobs. The claimant stated that he knew of another worker who had complained and lost work as a result. He believed he was endangering his job by complaining. The claimant asserted that things were ok when he started initially but got worse overtime – he rarely knew where he would be the following day and the hours got longer over the 2 year period.
The claimant insisted that he left the employment because he was constantly “ knackered” .He said that when he started off he was told he was on a 40 hour week working from 8.00a.m. to 5.00p.m.He stated his wages were often late and that he ate on the go if you got a chance. He contended that the company credit card covered hotel stays but did not cover lunch .The claimant said that he invited the respondent to his wedding because he could n’t not invite him and he had invited other employees to go. The claimant spoke of being verbally abused by the respondent and recounted his allegation of the respondent saying “ Here’s your gang Jethro” when referring to a group of people with Downe’s Sndrome.
Under cross examination the claimant said that he got his friend a job with the respondent because he was really stuck and needed a job. He contended that it should have been made clear on his payslip that €100 per week was being paid for subsistence/expenses. The claimant was unable to identify a late payment in 2016 but suggested it may not have happened that year. The claimant was challenged on alleged inconsistencies in the diaries including varying start and finishing times. He stated that the reliance by the respondent on bank ATM withdrawals was inaccurate and inappropriate as they did not accurately reflect the transaction times. On re- examination the claimant set out explanations for the varying start times and clarified why the journey took so long on the 9th.June 2016 when he had to divert to take a colleague into Galway.
The claimant was adamant that he was never told to take a lunch break and he never took an hour for lunch. When he was travelling he asserted that he ate on the go when he got a chance.
The claimant’s wife stated in evidence that she encouraged the claimant to keep a diary – she never knew where he was going to be from one day to the next and they could not make any plans. She stated that she and the claimant used each other’s debit cards and the transaction times were not an accurate reflection on where the claimant was at any particular time. She described how the claimant broke down when he discovered that he had been deducted pay - she feared he might suffer a nervous breakdown .She herself was pregnant at this time. She recounted her experience of hearing the claimant’s account of the allegation relating to the respondent’s name calling.
In summing up the claimant’s representative submitted that one of the main issues was the issue of travel time constituting working time and the provisions of the ECJ decisions were invoked in support of these arguments. It was advanced that during those hours the claimant was at the respondent’s disposal and consequently this was working time that the claimant was never paid for .It was submitted that no real evidence of getting time off in lieu was presented by the respondent. It was submitted that on 33 occasions over an 8 month period the claimant did not get his 11 hour rest break. The respondent , it was submitted , had confirmed that he did not check the time sheets completed that excessive hours were not allowed. It was argued that the use of bank statements to track the claimant’s whereabouts was unconvincing as the atm transactions were an in accurate reflection of when the transaction took place. It was submitted that this was borne out by confirmation from AIB that the time set out in the statement was the time the withdrawal was approved by the bank. The claimant was never made aware that his pay included €100 for expenses/subsistence. It was contended that Mr.B was impossible to approach and the claimant had nowhere to turn to have his grievances addressed. It was contended that the power balance was all on one side and that for the sake of his relationship and in order to avoid any further stress or deterioration n his health he had no option but to resign. It was submitted that the claimant was entitled to resign because of the respondent’s behaviour .
Summary of Respondent’s Case
It was submitted that the claimant’s case was entirely bound up with inaccurate assertions regarding his working time and it was denied that the employer had in any way acted improperly. The assertion regarding the comment about Downe’s Syndrome was vehemently denied. It was contended that the employer was a long time friend of the claimant and they had attended each other’s weddings .It was submitted that 3 complaints had been made about the claimant’s behaviour culminating in a verbal warning being issued to him.
It was contended that the claimant had failed to meet the test for constructive dismissal – no concerns had been raised or put in writing prior to the claimant’s resignation and it was suggested that notwithstanding this the claimant had submitted a well constructed letter of resignation. It was submitted that the claimant’s claim would be limited to the 3 weeks loss incurred while out of work. The claimant was questioned on obtaining a job 3 weeks after he tendered his resignation and was challenged for never pursuing a formal grievance against the respondent.
The respondent Mr.B asserted that he was never approached by the claimant about any grievances or about being unapproachable. He stated that the claimant put his letter of resignation through his letter box in the middle of the night ; he didn’t answer his calls when he rang him about it and he alleged that the claimant ran away when he tried to approach him about the resignation in a car park. Mr.B vehemently denied making the comment about Downes Syndrome people to the claimant .The respondent asserted that he kept all required statutory employment records and that these time sheets were completed by the claimant on a weekly basis. He submitted that he never made a deduction from the claimant’s wages – he stated that the €100 subsistence/expenses payment was not paid when the claimant was on holidays as he did not incur any such expenses when he was off. He stated that he now had an administrative person in his office and all holidays and public holiday entitlements were paid. He said that when the lads were off site , the onus was on them to take their lunch breaks. He stated that if you deducted the one hour lunch break and the claimant’s travel to and from the yard and factored in holidays and bank holidays the claimant worked an average of 43 hours per week. The respondent asserted he never docked money from the claimant – that they were friends and he was invited to his wedding and his stag party. He suggested the claimant had misrepresented his working time in his diaries and was factoring in times it took to travel to the yard.
He stated under cross examination that the office and yard were at the back of his house- the claimant started in the yard not in the office. He submitted that he never told the claimant to be at the yard at 7.00a.m.He stated that his records were based on google maps , not on van trackers. He confirmed that he never advised the claimant that his pay included €100 expenses/subsistence payment but asserted that everyone else knew this was the case. He was referred to the records for the 18th.March 2016 which record the claimant working 14 hour day- it was submitted by the claimant’s representative that there was nothing to demonstrate that the claimant had been paid for those hours. Mr.B asserted that evidence regarding payment for holidays and bank holidays was clear from the claimant’s own time sheets which the claimant completed himself. He maintained that where staff worked over and above regular hours they got paid time off in lieu. He submitted that staff would sometimes leave early. The respondent gave a breakdown of the payment of €270 made to the claimant on the 28th.January which included payment for diesel , tolls and the remainder for the claimant. The respondent advanced that the claimant never raised any issues with him about excessively long hours including the 17th.Feb. 2016 and the 5th.May 2016.The respondent was unable to explain non payment to the claimant for the 5th./11th.August and submitted that there was confusion about annual leave pay being owed by the claimant. Mr.B stated that if the claimant took just one day off in a week , he would not make at deduction from his subsistence allowance. The respondent submitted that his employees were on a salary as opposed to a daily or weekly rate of pay. He indicated that he did not examine time sheets or records and submitted that staff knew from their pay slip if they were receiving TOIL.
The respondent stated that he paid for morning breaks but that lunch time was unpaid. He submitted that the claimant smoked 20 cigarettes a day. When questioned how he knew if staff were taking their lunch breaks he replied “ they are big lads”. The respondent suggested that the claimant on occasions arrived in early to work without having been requested to do so and he was found asleep in the driveway. He asserted that he pulled the claimant many times about arriving at work too early. He insisted that all staff were salaried and no overtime was paid.
Witness for the respondent Mr.PG submitted that the respondent was approachable and friendly .He stated that he took lunch breaks every day and several cigarette breaks throughout the day. He submitted that he would sit in the van for an hour at lunchtime. He asserted that he worked with the claimant and did most of the driving. He usually started at 8.00a.m.He confirmed that he had a signed contract and was aware of his terms and conditions of employment. He knew his place of work would vary and that he was required to work all over the country. He thought the claimant enjoyed his job and he had no recollection of the claimant complaining to him about the remark relating to Downe’s Syndrome and denied witnessing the incident.Where he was recorded as having worked 55 or 61 hours per week, it would include travel .He contended that if he worked late he might be told to take the next day off.
In summing up the respondent’s representative submitted that the claimant had factored in annual leave and public holidays in his inaccurate calculations and that when the respondent did their calculations the claimant worked less than a 48 hour week. It was argued that the claimant had exaggerated his records on 17 occasions and that the claimant was not required to return to Mayo at night that he did so of his own accord. When Mr.B tried to engage with the claimant following his resignation , the claimant refused to speak to him. He had gotten his best friend a job with the company – this was inconsistent with the picture painted by the claimant. The claimant had conspired against the respondent by keeping diaries- this was underhand and the claimant had never raised a grievance .The respondent was a reasonable employer and had not made any illegal deductions to the claimant’s wages. The respondent categorically denied the claimant’s allegations about the name calling incident in Dublin.
Decision:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] 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).
I have reviewed the evidence presented at the hearing and noted the conflicting accounts of the parties. The respondent’s representative has argued that the claimant’s failure to pursue a complaint regarding his treatment , was fatal to his complaint of constructive dismissal. While I acknowledge that a claimant is obliged to act reasonably and afford his employer an opportunity to address any grievances he may have , there are authorities that demonstrate that this is not a universal rule e.g. New Era Packaging v A Worker [2001]ELR 122 and Liz Allen v Independent Newspapers [2002].I have concluded that in this case there are a number of factors that excuse the claimant’s failure to pursue his grievances further with his employer. I found that claimant’s evidence that he did raise complaints with the respondent to be credible. The claimant did not have access to a grievance procedure arising from the respondent’s non compliance with the Terms of Employment (Information) Act 1994.The respondent accepted in evidence that the claimant was never informed that €100 of his weekly income constituted a subsistence payment that did not apply unless the claimant was on the road. The respondent further accepted that he did not look at or monitor his employees time sheets. I have found that the respondent was in reach of the Terms of Employment (Information) Act , 1994 , the Payment of Wages Act, 1991 and the Organisation of Working Time Act 1997.Additionally , I found the evidence of the claimant regarding the name calling incident to be persuasive. The claimant had no opportunity to pursue this grievance in the absence of any dignity at work / harassment policy.
Having regard to the foregoing I have concluded that the claimant’s failure to further pursue his complaints internally is not fatal to his constructive dismissal complaint .I am satisfied that the claimant has met the high bar required to sustain a complaint of constructive dismissal by demonstrating the unreasonableness of the respondent’s treatment of him and have concluded that he was unfairly dismissed.I am taking into account in my calculation of award of the ongoing loss incurred by the claimant arising from the reduced wages he is receiving from his current employer. I require the respondent to pay the claimant €€9,350 compensation within 42 days of the date of this decision.
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Date: 11th April 2018