ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Senior Care & Support Worker | A Care Service Provider |
Representatives | The Complainant attended the hearing in person and was not represented | Ms. Ruth Colgan B.L. on the instructions of J.O.S. Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00023505-002 | ||
CA-00023505-003 | ||
CA-00023505-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed by the Respondent as Senior Care & Support Worker from 24 August, 2018 until 31 October, 2018 when she resigned from her employment. The Complainant claims that the Respondent has contravened Regulation 5 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 on the basis that she was required to work more than the permitted number of hours in a week. The Complainant claims that the Respondent has contravened the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 by failing to keep statutory employment records. The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide her with a written statement of her terms and conditions of employment. The Respondent disputes the claim that it has contravened the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 in relation to the Complainant’s employment. The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 in relation to the Complainant’s employment. |
Summary of Complainant’s Case:
CA-00023505-002 – Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 The Complainant claims that she was required to work 14-hour days in her role as a Senior Care & Support Worker with the Respondent. The Complainant contends that on many occasions the commute between the patient’s home and base was construed as rest period/break time and she was told that she could eat while driving between appointments. More often than not, there was no time appointed between home visits for rest time. The Complainant contends that rosters provided by the Respondent did not allow for travel time between locations that could be up to 30 minutes’ drive or alternatively, she might be afforded 15 minutes to travel to a location that was more than a 45-minute commute. The Complainant claims that she was continually driving under time pressure and when she complained to the Respondent she was informed that it was a matter of personal time management and her own personal responsibility. CA-00023505-003 – Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 The Complainant claims that the Respondent did not keep statutory records in relation to its employees with the exception that workers were required to sign documentation at the patient’s home to show that they had physically attended an appointment. CA-00023505-004 – Complaint under the Terms of Employment (Information) Act 1994 The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 by failing to provide her with a written statement of her terms and conditions of employment. |
Summary of Respondent’s Case:
CA-00023505-002 - Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 The Respondent disputes the claim that it has contravened Regulation 5 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 in relation to the Complainant’s employment. The Respondent submits that the Complainant was not permitted to work more than the maximum permitted hours. The Complainant worked 40 hours per week and worked three days one week and fours days the following week. The Complainant’s duties as a Senior Care and Support Worker were to provide care and support to persons in houses in different locations within a specific geographical area. The Complainant had the use of a company car on her days of work. The Complainant was required to commute to service users’ homes each day and she was provided with a roster each day which allocated break/rest periods. CA-00023505-003 – Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 The Respondent disputes the claim that it has contravened the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 by failing to keep statutory employment records in relation to the Complainant. The Respondent submits that the company maintained a record of the Complainant’s working pattern, including all hours worked and breaks taken by her. CA-00023505-004 – Complaint under the Terms of Employment (Information) Act 1994 The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act 1994 in relation to the Complainant’s employment. The Respondent contends that the reason the Complainant did not receive a written statement of her terms and conditions of employment was because she handed in her notice one month after commencing employment. There was a verbal agreement in place between the parties and the Complainant never requested a written statement. |
Findings and Conclusions:
CA-00023505-002 - Complaints under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 This complaint seeks adjudication under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. The Complainant claims that the Respondent has contravened Regulation 5 on the basis that she was required to work more than the permitted number of hours in a week. The scope of the Regulations is set out in Regulation 3 which provides that: “3. these regulations apply to - a) mobile workers who are employed by or who do work for one or more undertakings established in a member State, and (b) self-employed drivers Participating in road transport activities to which either the Council Regulations or the AETR applies.” The Regulations permit mobile workers to refer adjudication complaints to the Workplace Relations Commission in relation to a contravention of a provision or requirement set out in the legislation. It is clear that this avenue for redress is only available to mobile workers. It was not in dispute between the parties that the Complainant was not a mobile worker within the meaning of the Regulations; she worked as a Senior Care & Support worker and did not drive a lorry. In the circumstances, I find that her complaint under the Regulations to be misconceived and not well founded. CA-00023505-003 - Complaints under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 The Complainant claims that the Respondent has contravened the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 by failing to keep statutory employment records. As I have already indicated above, I am satisfied that the Complainant was not a mobile worker within the meaning of the Regulations; she worked as a Senior Care & Support worker and did not drive a lorry. In the circumstances, I find that her complaint under the Regulations to be misconceived and not well founded. CA-00023505-004 – Complaint under the Terms of Employment (Information) Act 1994 Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “. It was common case that the Complainant was employed by the Respondent from 24 August, 2018 until she resigned her employment on 31 October, 2018. Therefore, in accordance with its obligations under Section 3 of the Acts, the Respondent was obliged to provide the Complainant with a written statement of her terms and conditions of employment no later than two months from the date she re-commenced employment i.e. by 23 October, 2018. It was not in dispute that the Respondent did not provide the Complainant with a written statement of her terms and conditions of employment during the period of her employment. I am satisfied that the Respondent’s obligations under Section 3 of the Act still applied notwithstanding the fact that the Complainant had indicated her intention to resign after one month of employment. Accordingly, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00023505-002 - Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that her complaint under the Regulations is not well founded. CA-00023505-003 – Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that her complaint under the Regulations is not well founded. CA-00023505-004 – Complaint under the Terms of Employment (Information) Act 1994 Section 41 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. In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened Section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €840.00 being the equivalent of two weeks’ pay in respect of the contravention. |
Dated: 23rd July 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 – Mobile Workers - Terms of Employment (Information) Act 1994 – Section 3 – Written Statement of Terns and Conditions |