ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026215
Parties:
| Complainant | Respondent |
Anonymised Parties | HGV Driver | Transport Company |
Representatives | Self | Gareth Kyne |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00032339-001 | 19/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00032339-002 | 19/11/2019 |
Date of Adjudication Hearing: 28/09/2021 and 23/11/2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, 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 as a truck driver by the respondent commencing employment in August 2017. His work involved delivering goods to customers throughout the country. Issues arose between the parties when the respondent sought to introduce a new contract for drivers. The complainant would not accept the new contract and raised queries in relation to the calculation of his wages under the existing contract. The complainant resigned from his employment in June 2019 and the complaints involved in this case were lodged with the WRC on 19 November 2019. These complaints were heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2000. |
Summary of Complainant’s Case:
The complainant’s contract specified an hourly rate of €12.50. The complainant was required to work long hours over 6 days per week and was paid less than the hourly rate set out in his contract. The respondent attempted to introduce a contract with a lesser hourly rate of pay but the complainant refused to sign this contract. In the particular circumstances of this case the complainant is claiming compensation for the period of his employment. Requests for rest days because of excessive working were refused but the complainant believed that Irish drivers were facilitated in this regard. |
Summary of Respondent’s Case:
Prior to commencing employment the complainant was informed that the hourly rate was an amalgamation of wages and subsistence payments. This fact was set out on the complainant’s fortnightly payslips and was never concealed from him. The new contract was an attempt to clarify issues that had been of concern to drivers. The complainant suffered no detriment as a result of not signing the new contract. The complainant has failed to establish a prima facia case of discrimination. Lack of knowledge of the law cannot be accepted as an excuse for not complying with a statutory obligation. |
Findings and Conclusions:
Both witnesses gave evidence under affirmation. I also administered the affirmation to the interpreter. Both parties were subject to cross-examination. Preliminary Issue: As noted above, the complainant had been employed as a HGV Driver by the respondent and he resigned from that employment on 6 June 2019. The complaints in this particular file were lodged with the WRC on 19 November 2019. The complainant submitted that, as his complaint was filed within the 6 months period of leaving employment, all of his employment period should be taken into consideration as regards his complaint under the Payment of Wages Act, 1991. The complainant further cited the fact that English was not his first language and his lack of familiarity with the legal culture in this country as contributory factors in delaying his submission of these complaints. The respondent’s representative argued that not knowing the law cannot be accepted as an excuse or reason for not complying with the application of a particular statute or law. In addition, it was pointed out on behalf of the respondent that the complainant had lodged a previous complaint with the WRC in respect of Sunday premium payments on 30 May 2019 (the complainant’s representative stated that due to postal issues the respondent was unaware of the subsequent hearing and did not attend same). It was submitted therefore that the complaint is limited to the period from 20 May 2019 to 6 June 2019, this being the time period which falls within the 6-month limit. The respondent’s representative referenced a number of legal precedents in support of this position. Section 41(6) of the Workplace Relations Act, 2015, states: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) states: An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. In Cementation Skanskav Carroll (DWT0338) the Labour Court stated as follows: “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay….The claimant’s failure to present the claim within the six-month timelimit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” In particular, the Courts generally have ruled that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body (Ervia v Dealgan Healy, Labour Court, and Minister for Finance v CPSU and Ors. (2007) 18 ELR 36, High Court). In the circumstances of this case I must conclude that the complainant has not put forward a justifiable basis amounting to reasonable cause upon which an extension of time could be granted. Therefore, I can only consider possible breaches of legislation that occurred within the six-month period prior to the complaints being lodged with the WRC on 19 November 2019, i.e. from 20 May 2019. Complaint No. CA-00032339-001: This is a complaint under the Payment of Wages Act, 1991, to the effect that the complainant did not receive the amount of wages to which he was contractually entitled. The complainant was issued with a statement of employment by the respondent which was signed by both parties on 13 August 2017 and which contained a clause entitled “Remuneration” as follows: “Your wage is currently €12.50 ph payable weekly in arrears by credit transfer as detailed on your pay statement. Any additional hours worked will be paid at basic. Your Sunday premium is incorporated into your rate of pay. In accordance with Section 23 of the National Minimum Wage Act, 2000, you may request a written statement of your hourly rate of pay for any reference period falling within the previous 12 months. The complainant stated that he invariably worked around 60 hours per week and when he examined his payslips and divided his gross pay by the number of hours that he actually worked he discovered that his hourly basic pay rate was between €11.10 and €11.18 per hour. Evidence on behalf of the respondent was given by the owner who stated that he had informed the complainant when he was being hired that subsistence was included in the rate of €12.50 per hour. This was strongly denied by the complainant who said that if he had been informed to this effect during his interview he would not have taken up employment with the respondent. I have studied the documentation including wage slips and I note that the number of hours by which the wage is calculated does is not printed on the wage slip. There is a figure for ‘salary’ and a figure for ‘subsistence’. At the end of each slip there is a hand-written note regarding total weekly hours but it is unclear if this is an official notification from the employer. With regard to subsistence, there is nothing in the documentation provided to show the basis on which it is calculated. When it was put to the complainant in cross-examination that the hours worked were based on tachograph readings the complainant responded that the tachograph does not record all duties performed by a driver. I also note that dividing the ‘salary’ figure by the hours worked produces slightly variable figures including a low of €11.05 per hour. I further note that one of the reasons put forward by the respondent for the introduction of a new contract was in order to address an ‘anomaly’. I further note that the respondent employed about 30 drivers and that the issue of confusion regarding the calculation of wages of drivers had been the subject of correspondence with the WRC inspectorate by some drivers. I find that the position of the respondent regarding verbal clarification to the respondent that the figure of €12.50 per hour included subsistence is unacceptable. It is not a clear, transparent means of informing an employee in writing of “the rate or method of calculation of the employee’s remuneration” as required by Section 3 of the Terms of Employment (Information) Act, 1994. It is obvious that the respondent subsequently realised that an issue existed by the circulation of a revised contract. As regards the direct conflict of evidence as to whether the complainant was actually verbally advised by the respondent’s owner to this effect, I must state that I found the evidence of the complainant that he was not so informed to be the more compelling. Having regard to the all of the above factors I therefore decide that the complainant had a contractual entitlement to a payment of €12.50 per hour separate from any subsistence due. I find, therefore, that this complaint is well founded. Complaint No. CA-00032339-002: This is a complaint under the Employment Equality Act, 1998, to the effect that the complainant was discriminated against on the grounds of race and specifically that he was required to work longer hours over 6 days per week compared to other (Irish) drivers. In presenting this complaint the complainant did not specify a particular instance that occurred within the time limits for this complaint. In cross examination the complainant stated that he could not name or remember an Irish driver working less hours than he did. Section 85A of the Employment Equality Acts, 1998 – 2008, states: (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This section sets out the burden of proof which applies to claims of discrimination. It requires that the complainant must establish, in the first instance, facts upon which he or she can rely in asserting that he or she suffered discriminatory treatment on the grounds specified. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that discrimination occurred. The Courts have held that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”. (Melbury Developments Limited v Valpeters, (2010) 21 ELR 64). In the case of Margetts v Graham Anthony & Company Limited, (EDA038), the Labour Court stated: “The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”. In his written submission the complainant stated that he had to work 6 days per week and that when he requested time off he was always refused. The complainant said in the submission that he had learnt that Irish drivers did not have that problem. As noted above the complainant did not provide names or specify incidents in support of this assertion. The respondent denied that any discrimination had occurred and the owner stated that around 40% of the drivers employed by the respondent were non-Irish. Having regard to the evidence before me I find that the complainant has failed to establish a prima facie case that would permit a presumption that he had suffered discriminatory treatment. I therefore find that this complaint is not well founded. |
Decision:
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint No. CA-00032339-001: For the reasons outlined above I find that this complaint under the Payment of Wages Act, 1991, is well founded. As also outlined above, I can only take into account the period commencing 20 May 2019. The complainant ceased employment with the respondent on 6 June 2019. There appear to have been five payslips covering payments made to the complainant in regard of this period; 24 May, 31 May, 7 June, 28 June and 5 July. I have found that the complainant was entitled to a payment of €12.50 per hour and applying that figure in respect of the calculations for hours worked as per the hand-written note (disregarding subsistence) I find that the complainant was underpaid €74.00 in respect of the payment dated 24 May, €85.00 for 31 May and €87.50 for 7 June. The payment dated 28 June is presumably for the balance of hours due plus a payment in respect of the June public holiday. I have calculated a shortfall in this payment of €95.13. Finally, the payment dated 5 July is for outstanding holiday pay which the respondent calculated amounted to 6.5 days in total. There is a shortfall of €291.07 in this payment. The total shortfall calculated on the evidence before me comes to €632.70. I therefore order the respondent to pay to the complainant the sum of €632.70 in this regard. Complaint No. CA-00032339-002: As detailed above I find that in this complaint under the Employment Equality Acts, 1998 – 2015, the complainant has failed to establish a prima facie case that he suffered discrimination on the grounds of race and I therefore find this complaint to be not well founded. |
Dated: 3rd February 2022
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
Payment of Wages Act 1991 Employment Equality Act 1998 Time Limits for Lodging Complaints Prima Facie Case |