ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030213
Parties:
| Complainant | Respondent |
Parties | Ruslan Rybak | Noel Hughes & N J Hughes Haulage & Plant Hire |
Representatives | Marius Marosan | Respondent Managers |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040366-001 | 12/10/2020 |
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-00040366-002 | 12/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-004 | 12/10/2020 |
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-00040366-008 | 12/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-009 | 12/10/2020 |
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-00040366-010 | 12/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040366-012 | 12/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040366-013 | 12/10/2020 |
Date of Adjudication Hearing: 12/01/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 , Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information) Act, 1994, 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, Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.
There were no issues with Confidentiality.
The hearing was facilitated by the Remote attendance of the Complainant, currently in the Armed Services of the Ukraine.
This was possible pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
A closely related Adjudication Adj 31084 was also heard simultaneously.
Background:
The issues in contention concern a Driver and a Transport Company. The employment began on the 10th October 2005 and ended on the 3rd June 2020. The rate of pay was stated to have been €10.83 per hour for an alleged 85-hour week. The complaints were Unfair Dismissal, Working Times, Information and Payment of Wages |
1: Summary of Complainant’s Case:
To assist matters a Tabular format will be used.
The Complainant was represented by Mr Marosan, Oral testimony was given, and a written submission was provided.
1:1 | ||
Act | Complaint/Dispute Reference No. | Complainant’s statements |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040366-001 | No Statement in Writing of Terms and Conditions was provided. |
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-00040366-002 | No Statutory records maintained by the Respondent Employer |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-004 | No Daily Rest period was provided by the Respondent Employer |
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-00040366-008 | No Work breaks between work periods provided. Hours in excess of 35 continuous duty stated in evidence.
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Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-009 | The Complainant alleged that he did not get proper breaks. He had to eat and sleep in his truck. He stated that he sometimes had to work 100 hours nonstop and had to sleep in the Truck cabin.
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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-00040366-010 | The Complainant had to work well in excess of the 48 Hour week and sleep/eat in the Truck |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040366-012 | The Complainnat was dismissed in the Respondent Yard without any warning or proper procedures. See further details below |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040366-013 | The Complainnat alleged that he did not receive any Sunday premium. |
1:2 CA-00040366-012 Unfair Dismissal
The Complainant was constantly under work pressure involving long work periods that necessitated sleeping in the Truck for over a Year. On the 1st July 2020 he was doing a trip to a major Customer. The Customer kept ringing him on his mobile as regards the expected delivery times. The Complainant told him he was not “Driving a Rocket”. It became a testy exchange. Later that day after doing another load the Respondent Principal spoke to hm very aggressively and dismissed him without any procedures or right of appeal.
2: Summary of Respondent’s Case:
To assist matters a Tabular format will be used.
The Respondent was self-represented but assisted by Manager, Ms McG. Extensive Oral testimony was given and supported by a written statement.
2:1 | ||
Act | Complaint/Dispute Reference No. | Complainant’s statements |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040366-001 No Statement in Writing of Terms and Conditions was provided | Respondent refuted this complaint. A Statement of Terms and Conditions was presented in evidence. |
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-00040366-002 No Statutory records maintained by the Respondent Employer | Respondent rebutted this complaint. Letter from WRC Inspection Services referring to records presented in evidence. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-004 No Daily Rest period was provided by the Respondent Employer | Respondent rebutted this complaint. Tachograph Records presented in evidence. |
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-00040366-008 No Work breaks between work periods provided. Hours in excess of 35 continuous duty stated in evidence. | Respondent rebutted this complaint. Tachograph Records presented in evidence. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-009 The Complainant alleged that he did not get proper breaks. He had to eat and sleep in his truck. He stated that he sometimes had to work 100 hours nonstop and had to sleep in the Truck cabin. | The Respondent rebutted this complaint. Work records from / completed by the Complainant were presented in evidence. The Respondent gave oral testimony that the Complainant lived completely voluntarily In the Truck cabin. He used open hygiene / shower facilities at an Irish Cement site. Offers of accommodation had been refused as the Complainant did not wish to pay any rent. |
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-00040366-010 The Complainant had to work well in excess of the 48 Hour week and sleep/eat in the Truck | The Respondent rebutted this complaint. Work records from / completed by the Complainant were presented in evidence |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040366-012 The Complainnat was dismissed in the Respondent Yard without any warning or proper procedures. | See detailed discussion below. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040366-013 The Complainnat alleged that he did not receive any Sunday premium. | The Respondent rebutted this complaint. Full pay details presented to demonstrate that all entitlements were properly paid. |
3:2 CA--00040366-012 – Unfair Dismissals Act 1977 complaint.
The Respondent outlined a long history with the Complainant. The Complainant was in the habit of leaving the job quite abruptly to return home to the Ukraine. He had done so on a number of occasions, but the Respondent had always re employed him on his return. He was an excellent heavy truck driver who generally worked without complaint.
On the day in question, it was well known that the Complainant was planning a return trip and had applied for an Emergency “Covid” Flight from his Embassy. The “Rocket Driver” exchange with a main customer had been “salty” to say the least. The Customer had complained to the Respondent.
The Respondent stated that the Complainant had said, in a very “salty” manner, that he was leaving when the Respondent attempted to discuss the issues with him.
He walked off the Yard and no further contact was possible as he flew out to the Ukraine two days later.
No Unfair Dismissal took place as the ending of the employment, walking out of the Yard, was well in keeping with the Complainants’ track record of regularly leaving abruptly to go home to the Ukraine.
3: Findings and Conclusions:
As an assistance the Tabular format will be used save for the Unfair Dismissals claim which we will discuss first. 3:1: CA-00040366-012 – Unfair Dismissals Act 1977 complaint. The Legal position is well set out in the Unfair Dismissals Act,1977 and Statutory Instrument 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures. In plain English “on the spot” dismissals without procedures are a non-runner. In this case it was clear that the Complainant had quite a “head of steam” up before he met the Respondent. To be fair he had been driving a large truck all day. A salty exchange followed. Both sides were under sworn / affirmation testimony. The onus is always on the former employer to justify a Dismissal, save where it is “constructive” i.e. the Employee formally resigns alleging serious issues with the former Employer. In this case and on the civil law balance of probability basis a dismissal took place but heavily discounted by the actions of the Complainant and his previous record of leaving at very short notice to return to the Ukraine. Redress for an Unfair Dismissal has to be awarded.
3:2 General Comment on Record based complaints below. It was clear that the Employer kept extensive Records, paper-based tachographs. The Complainant challenged these. In a Sworn / Affirmative Hearing the Adjudicator has to form an opinion as to veracity of records and evidence. It was clear that the overall employment relationship was quite irregular – almost “Wild West” in character with the Complainant working for a few months even years and then disappearing. His Family were home in the Ukraine. He clearly wished to reside in the Truck Cab to avoid paying rent it appears as his periods of employment were hard to predict even to himself. He obviously wished to work to the maximum amount possible and was not particularly interested in Breaks etc as he had, by his own choice, no domestic life in Ireland. The Record issue would require a very extensive forensic analysis by Tachograph experts. An Adjudication probability decision has to be made. The Respondent Manager responsible for Records was very professional in her approach and demeanour. The Complainant, also forthright and impressive in his demeanour, also submitted records that were equally contested. It was worth noting for WRC records that this was probably the first instance of witness evidence being received from an active battlefield. In an overall “Judgment of Solomon” the Adjudication decision is that a round sum of €1,000 (€250 x 4) be awarded to the Complainant on the records/working times issues. CA: CA-00040366-004, CA-00040366-008, CA-00040366-009 & CA-00040366-010. On the balance of probability and the complete ambiguity at both sets of records €250 by 4 a total of €1,000 is awarded in redress of these complaints. | ||
Act | Complaint/Dispute Reference No. | Adjudicator Discussion |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040366-001 No Statement in Writing of Terms and Conditions was provided | The issue was that the Complainant had been employed, left and reemployed on a number of occasions. The Document produced by the Respondent was not signed. However, on balance the view had to be that it was genuine. This complaint is accordingly Not Well Founded. |
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-00040366-002 No Statutory records maintained by the Respondent Employer | The Respondent quite obviously kept records as they had been presented to the WRC Inspection Service and in evidence at the Hearing. This complaint is accordingly Not Well Founded.
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Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-004 No Daily Rest period was provided by the Respondent Employer | On the Balance of Probability, a Lump Sum of € 250 is awarded in Redress for Breach of a Statutory Right. This is not Renumeration. |
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-00040366-008 No Work breaks between work periods provided. Hours in excess of 35 continuous duty stated in evidence. | On the Balance of Probability, a Lump Sum of € 250 is awarded in Redress for Breach of a Statutory Right. This is not Renumeration. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-009 The Complainant alleged that he did not get proper breaks. He had to eat and sleep in his truck. He stated that he sometimes had to work 100 hours nonstop and had to sleep in the Truck cabin. | On the Balance of Probability, a Lump Sum of € 250 is awarded in Redress for Breach of a Statutory Right. This is not Renumeration. |
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-00040366-010 The Complainant had to work well in excess of the 48 Hour week and sleep/eat in the Truck | On the Balance of Probability, a Lump Sum of € 250 is awarded in Redress for Breach of a Statutory Right. This is not Renumeration. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040366-012 The Complainnat was dismissed in the Respondent Yard without any warning or proper procedures. | See detailed discussion above at paragraph 3:1 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040366-013 The Complainnat alleged that he did not receive any Sunday premium. | The Respondent rebutted this complaint. Full pay details presented to demonstrate that all entitlements were properly paid. On the basis of the clear Oral testimony of Ms McG, Respondent Manager this Complaint is deemed Not Well Founded. |
4: Decision:
Section 41 of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information) Act, 1994, 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, Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
Again, a Tabular format for assistance.
Act | Complaint/Dispute Reference No. | Adjudication Decision |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040366-001 | Not Well Founded Contract presented in evidence. |
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-00040366-002 | Not Well founded. Records presented in evidence |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-004 | Well, Founded on the Balance of Probability Redress for Breach of a Statutory Right of €250 awarded. |
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-00040366-008 | Well, Founded on the Balance of Probability Redress for Breach of a Statutory Right of €250 awarded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00040366-009 | Well, Founded on the Balance of Probability Redress for Breach of a Statutory Right of €250 awarded. |
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-00040366-010 | Well, Founded on the Balance of Probability Redress for Breach of a Statutory Right of €250 awarded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040366-012 | An Unfair Dismissal has been satisfactorily set out. Claim is Well founded. However, the size of a redress Award has to be tempered by the contribution of the Complainant which in this case is deemed to be 50%. Accordingly, a Redress Award under Section 7 of the Unfair Dismissals Act of €2,000 is awarded -this being “just and equitable”. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040366-013 | Complaint Not Well Founded as per discussion in section 3 above. |
Dated: 2nd April 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information) Act, 1994, 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, Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 |