ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035146
Parties:
| Complainant | Respondent |
Parties | Tymoteusz Ogrocki | Wentworth Transport Ltd Clf International Freight |
Representatives | Self-represented | Gary Conlon, Managing Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00046296-002 | 18/09/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00046296-003 | 18/09/2021 |
Date of Adjudication Hearing: 08/04/2022 and written submissions up to 16 May 2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints 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:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and two witnesses for the respondent gave their evidence under affirmation. The interpreter provided her services under affirmation. No conflicting evidence was given. The complainant was paid a net amount of €550 per week. This amount was agreed by both parties. The parties provided documentary evidence and written submissions post hearing up to 16 May 2022. |
Summary of Complainant’s Case:
CA-00046296-002 The complainant submitted that he was not provided with a copy of his hours as provided for in the regulation. CA-00046296-003 The complainant submitted that he was not provided with a written copy of the terms and conditions of his employment. |
Summary of Respondent’s Case:
CA-00046296-002 The respondent submitted that it did retain a copy of the complainant’s hours and tachygraph recordings. CA-00046296-003 The respondent accepted that it did not provide the complainant with a written copy of his terms and conditions of employment. |
Findings and Conclusions:
CA-00046296-002 The respondent provided the WRC with a copy of the complainant’s documentation in post hearing submissions. However, I am satisfied that these were not provided to the complaint in response to his request for such documentation. An employers obligations 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 are laid out in Regulation 12 as follows: 12. An employer shall do each of the following in relation to each mobile worker employed by him or her: (a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability; (b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation; (c) include time worked for another employer in the calculation of the mobile worker’s working time; (d) keep records which are adequate to show that these Regulations are being complied with; (e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records; (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker; (g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require; (h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g). I am satisfied that the complainant requested copies of his records as provided for at 12(f) above. I am also satisfied that this request was not complied with as the respondent required time to assemble the records in response to a request from the Adjudication Officer. Therefore, I find that the complaint is well founded. Regulation 18(3) of the Regulations states that: A decision of a rights commissioner under paragraph (2) shall do one or more of the following: (a) declare that the complaint was or was not well founded; (b) require the employer to comply with the provisions of these Regulations that have been contravened; (c) require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );
and the references in clause (b) and (c) to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership. I note that the respondent has complied with the provisions of the regulations in submitting the post hearing documentation to the WRC, copying the complainant. In all the circumstances outlined at the hearing, I order the respondent to pay the complainant the equivalent to 26 weeks net pay which I consider just and equitable in all the circumstances. I therefore award the complainant €14,300 in compensation. CA-00046296-003 The respondent accepted that it did not provide the complainant with a written copy of his terms and conditions of employment noting that it was “negligent in this matter”. Therefore, I find that the complaint is well founded. Section 7(2) (d) of the Terms of Employment (Information) Act, 1994 provides for the following: in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977. Having regard to the provisions of the Act, I find that three weeks net pay as compensation is just and equitable in the circumstances whereby the respondent accepted its breach and I order the employer to pay the complainant €1650 in compensation. |
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-00046296-002 Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complaint is well founded, and I award the complainant €14,300 in compensation. CA-00046296-003 Having regard to all the written and oral evidence in relation to this complaint, my decision is that the complaint is well founded and I award the complainant €1,650 in compensation. |
Dated: 28-11-2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Road Transport Regulations – complaint well founded - award of compensation – Terms of Employment (Information) - complaint well founded - award of compensation |