Complainant

Respondent

Parties

Vasile  Stancu

Baku Gls Limited

Representatives

Michael Micle  (Nephew)

Alastair Purdy LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-001

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-002

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063401-003

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-004

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-005

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-006

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-007

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063401-008

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063401-009

10/05/2024

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-00063401-010

10/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063401-011

10/05/2024

The background to this case relates to a discussion about amending the working hours and the number of shifts that the Complainant would work. This discussion arose based on an order forecast that indicated that working hours would have to be reduced to align with the demand for driver hours. That discussion was held with several drivers. No term was changed and the employer stated while others did agree to change their hours the Complainant did not, and no change was implemented.

A separate decision has been made for what appears to be a duplicate complaint ADJ-00050863 that relates to terms and conditions of employment.

The Complainant stated in his complaint form that:

“I have been working for the above-mentioned company as an international driver for 5 years.

The labor relations were going normally until about 3 weeks ago. About 3 weeks ago I received a message from my employer telling or proposing [to] me that I should work for 8 weeks with a 1-month break. I have worked for the last 4 years full-time (normally), i.e. I worked for 6 months after which I had a vacation. I worked for the next 4 or 5 months and had a second vacation. An exception was during the year 2023 when this working time of one year worked and two vacations was changed due to my family problems. As I said above, the employing company sent me a message telling me that I have to work for 8 weeks and then stay at home for 4 weeks.

Thereby I believe that I am constrained or wronged by the reduction of my working time to a period of 8 months worked during a calendar year and 4 months of break or vacation. Thereby I believe that my salary income in the future and the loss of my continuity of work shall be negatively affected, thus for one year of work in the version proposed by the employer, I as an employee will not have one year of work, but it will be 8 months of work and 4 months of vacation that will affect me in the future because I will have to work for a longer period in order to reach the threshold of retirement.I mention that I have not been dismissed, laid off or fired, but I feel compelled to change my job due to this reduction in the working hours.”

He stated that he should have been informed in writing about the change to his terms and conditions.

The  claims appear to be based on an assumption that the Employer had significantly reduced his hours of work without agreement.

No change in any term of employment occurred and the claims as detailed are denied. The Complainant resigned from his employment. No issue existed with the employee until the matter of hours of work were discussed in the context of a reduced order book. No change was implemented as no agreement was reached with him. No grievance was raised by him. No contractual change in his terms occurred and it is denied that any conduct on the employer’s part could be described as unreasonable.

CA-00063401-001 : The complainant stated the following in his complaint form:

I am not given compensation for working on a Sunday

Clause 2.7 of the Complainant’s employment contract states: “If you work on a Sunday, you will receive a premium of 15%. This may be paid as a percentage of a full day or a half day as appropriate.”

Section 14 of the Organisation of Working Time Act 1997 states:

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs

The Financial Controller and HR consultant for the company Mr Moran and Mr Corish respectively stated that the premium was paid. As the complaint is framed as no premium was paid and a premium in fact is paid, I must find that the complaint is not well founded.

I find that he complaint as framed cannot succeed and determine that it is not well founded.

CA-00063401-002 the Complainant stated the following in his complaint form:

I did not receive my paid holiday/annual leave entitlement

The Financial Controller gave evidence that all holidays had been paid and I find that the complaint is not well founded.

It became evident during the hearing that the Complainant had no evidence to present at the hearing to support the claims being pursued.

I note in ISS Limited v Zhivko Mitsov (DWT1159) the Labour Court stated that there is no provision in the Organisation of Working Time Act 1997 as amended to serve a notice for particulars. While I accept that proposition, a tribunal can set procedures that are fair which would include a party to provide further or better particulars. Parties do in fact agree voluntarily to provide further and better particulars to avoid an application for a case to be dismissed for want of sufficient particulars.

I also note that in ISS Ltd the Court stated that the obligation on the Respondent employer to keep records as provided for at section 25 of the Act and the onus on the employer of proving in proceedings that this provision was complied with is subject to the Complainant adducing some facts that non-compliance has occurred:

4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The wording in the Act is specific in that it arises where an employer fails to keep records:

This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that as a matter of basic fairness the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.

In Ryanair v The Labour Court, [2007] ELR 67 the Supreme Court stated that the Labour Court can only make findings that are supported by evidence and/or by the evidence that is presented to it. In accordance with the directions of the Supreme Court, any such statutory body cannot reach conclusions in the absence of relevant oral evidence and documentation.

The Complainant presented no factual evidence to ground this complaint and that pattern continued throughout the hearing.

CA-00063401-003 the Complainant states the following:

My employer has not paid me or has paid me less than the amount due to me

The Respondent is at a loss as to the basis of the lack of detail in this complaint, as the Complainant has failed to specify the amount allegedly owed to him. In any event, the Respondent maintains that all monies due to the Complainant have been paid in full, as evidenced by the payroll records.

The Complainant has not detailed his case with a fact that could ground his claim. As he has failed to properly particularise his claim and no evidence has been presented to support the claim and it is denied by the Respondent, I find that the claim is not well founded.

CA-00063401-004 the Complainant stated that he didn’t get a daily rest period.

The Respondent stated the following:

As stated in the ‘Preliminary Points’ above, we contend that the WRC does not have jurisdiction to hear this complaint as the statutory right to receive daily rest periods is comprised in Section 11 of the OWTA and Section 3 of S.I. No. 342/2015 provides that Section 11 of the OWTA does apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC. 3.4.2 Notwithstanding our objection to the complaint being heard, the Respondent can provide evidence that the Complainant was provided with all statutory daily rest periods as per Regulation 9 (1) of the 2012 Regulations which states that Regulation (EC) No. 561/2006 (as amended) relating to daily and weekly rest shall apply.

3.4.3 Article 8 of Regulation (EC) No. 561/2006 (as amended) provides the following on daily and weekly rest periods:

“1. A driver shall take daily and weekly rest periods.

2. Within each period of 24 hours after the end of the previous daily rest period or weekly rest period a driver shall have taken a new daily rest period. If the portion of the daily rest period which falls within that 24 hour period is at least nine hours but less than 11 hours, then the daily rest period in question shall be regarded as a reduced daily rest period.

3. A daily rest period may be extended to make a regular weekly rest period or a reduced weekly rest period.

4. A driver may have at most three reduced daily rest periods between any two weekly rest periods.

5. By way of derogation from paragraph 2, within 30 hours of the end of a daily or weekly rest period, a driver engaged in multi-manning must have taken a new daily rest period of at least nine hours.

6. In any two consecutive weeks a driver shall take at least:

— two regular weekly rest periods, or

— one regular weekly rest period and one reduced weekly rest period of at least 24 hours.

However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question. A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.

7. Any rest taken as compensation for a reduced weekly rest period shall be attached to another rest period of at least nine hours.

8. Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.

9. A weekly rest period that falls in two weeks may be counted in either week, but not in both.”

 The Respondent maintains that Article 8 of Regulation (EC) No. 561/2006 (as amended) is complied with in full and the Complainant’s record of working hours reflects this.

The Complainant has presented no factual evidence to support his case and the complaint must fail. I find that the complaint is not well founded.

CA-00063401-005 the Complainant stated that I do not get breaks. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-006 the Complainant stated that I work excessive night hours. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-007 the Complainant stated that I do not get weekly rest periods. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-008 the Complainant stated that I work excessive night hours. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded. This complaint is a duplicate of CA-00063401-006.

CA-00063401-009 the Complainant stated that I was not notified in writing of a change to my terms of employment. As no detail is given about the change to a term of employment,I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded. Detail was provided in another complaint ADJ-00050863 and on the facts was also determined to be not well founded.

CA-00063401-10 the Complainant stated that I was not notified ofthe working hours regulations applying to the road transport sector.

The Respondent stated that all drivers, including the Complainant is issued with a driver’s manual. Under Section E of the manual, details in relation to driver’s hours and rest breaks are clearly detailed.

 The Complainant ticked those complaints that in his view might apply. A Complainant carries an evidential obligation to detail a fact that in turn grounds his complaint.  As no fact has been detailed to support his case and it is denied by the Respondent, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-11 Constructive Dismissal: the Complainant stated that he felt compelled to terminate his employment because of the issues arising in this complaint. However, no complaint that has been made against the Respondent has been upheld. The Complainant carries the burden where dismissal is in dispute to prove that he was dismissed arising from a fundamental breach in a contract of employment and/or due to the unreasonable conduct of the employer. No breach of any term of employment has been proven. The conduct of the employer is not questioned other than the imposition of reduced working hours arising from a reduced order book. However, that change never occurred and the employee left in a relatively short time frame, during the discussion about reducing his hours of work. As no evidence has been presented that could support this claim and no grievance was raised by him prior to him resigning, I determine that the Complainant was not Unfairly Dismissed, and the employment ended by reason of resignation.

A Complainant must meet what is referred to as the mirror test as referenced in Meenan, Employment Law 2nd Ed. 2023 (Round Hall):

20-82

The company referred the tribunal to the cases of Conway v Ulster Bank136 and Beatty v Bayside Supermarket.137 Both these cases clearly established that, where there is a union/management agreement containing a grievance procedure, such a procedure should be substantially followed by employees when they consider that there is a breach of contract by their employer. In Harrold v St Michael’s House,138 the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

The question arises should the Complainant have initiated the grievance procedure prior to resigning?

The Complainant received information about his terms and conditions, and no change was made in any of his terms of employment.

The main reason why the claim for constructive dismissal cannot succeed relates to the fact that the conduct complained about was not so unreasonable, a discussion about reducing hours of work,  that discussion cannot be deemed to have effectively given rise to a repudiation of the contract. The Complainant carries the burden of proof where the dismissal is in dispute. While the Complainant experienced anxiety an objective test must be applied to the issues raised that it is argued amount to the repudiation of the contract. It cannot be maintained that discussions about reducing shifts where an order book is significantly down is unreasonable.

 An objective test means the issues detailed must be viewed not in relation to this particular employee and his personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?

Redmond on Dismissal Law elaborates on what this means:

[5.25]

A breach of the implied duty of mutual trust and confidence is always regarded as repudiatory. The EAT in Britain regarded it as a fundamental breach in Morrow v Safeway Stores Ltd. 44 If a breach was not sufficiently serious to amount to a repudiation of the contract, it could not be a breach of the implied duty. Cumulative acts on an employer’s part may be taken into account in determining whether or not the employer has acted in a manner which has undermined the implied obligation of mutual trust and confidence: Lewis v Motorworld Garages. 45 The Court of Appeal in Lewis emphasised another important aspect of the implied obligation: the employer’s conduct is judged objectively, not subjectively. There may of course be circumstances in which it will be self-evident that the employer intends to undermine the relationship of mutual trust and confidence, as in Cantor Fitzgerald v Bird, 46 in which event a subjective intention will be of strong probative value.

The statutory test also provides for a reasonableness test even where no contract provision has been breached that would repudiate the contract. The working relationship between the parties had been good. However, the discussion about reducing the Complainant’s working hours appears to have been the motivation to leave and bring this claim. However, no change in fact had been implemented.

It became evident during the hearing that the Complainant had no evidence to present at the hearing to support the claims being pursued.

I note in ISS Limited v Zhivko Mitsov (DWT1159) the Labour Court stated that there is no provision in the Organisation of Working Time Act 1997 as amended to serve a notice for particulars. While I accept that proposition, a tribunal can set procedures that are fair which would include a party to provide further or better particulars. Parties do in fact agree voluntarily to provide further and better particulars to avoid an application for a case to be dismissed for want of sufficient particulars.

I also note that in ISS Ltd the Court stated that the obligation on the Respondent employer to keep records as provided for at section 25 of the Act and the onus on the employer of proving in proceedings that this provision was complied with is subject to the Complainant adducing some facts that non-compliance has occurred:

4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

The wording in the Act is specific in that it arises where an employer fails to keep records:

This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that as a matter of basic fairness the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.

In Ryanair v The Labour Court, [2007] ELR 67 the Supreme Court stated that the Labour Court can only make findings that are supported by evidence and/or by the evidence that is presented to it. In accordance with the directions of the Supreme Court, any such statutory body cannot reach conclusions in the absence of relevant oral evidence and documentation.

CA-00063401-01 Sunday Premium:

The Financial Controller and HR consultant for the company Mr Moran and Mr Corish respectively stated that the Sunday premium was paid as per the contract. As the complaint is framed as no premium was paid and a premium in fact is paid, I must find that the complaint is not well founded.

I find that he complaint as framed cannot succeed and determine that it is not well founded.

CA-00063401-02 Annual Leave:

the Complainant stated the following in his complaint form:

I did not receive my paid holiday/annual leave entitlement

The Financial Controller gave evidence that all holidays had been paid I find that the complaint is not well founded.

CA-00063401-03 Payment of Wage: The complaint has not detailed his case with a fact or quantified his alleged loss. As he has failed to properly particularise his claim and no evidence has been presented to support the claim and it is denied by the Respondent, I find that the claim is not well founded.

CA-00063401-004 the Complainant stated that he didn’t get a daily rest period. The Complainant has presented no factual evidence to support his case and the complaint must fail. I find that the complaint is not well founded.

CA-00063401-005 the complainant stated that I do not get breaks. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-006 the complainant stated that I work excessive night hours. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-007 the Complainant stated that I do not get weekly rest periods. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-008 the Complainant stated that I work excessive night hours. I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded. This complaint is a duplicate of CA-00063401-006.

CA-00063401-009 the Complainant stated that I was not notified in writing of a change to my terms of employment. As no detail is given about the change to a term of employment.I must find against the Complainant for failing to particularise his complaint and for not detailing any fact at all that could ground his complaint. As no case can be answered arising from such paucity of detail, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-10 the Complainant stated that I was not notified of the working hours regulations applying to the road transport sector.

The Respondent stated that all drivers, including the Complainant is issued with a driver’s manual. Under Section E of the manual, details in relation to driver’s hours and rest breaks are clearly detailed.

 The Complainant ticked those complaints that in his view might apply. A Complainant carries an evidential obligation to detail a fact that in turn grounds his complaint.  As no fact has been detailed to support his case and it is denied by the Respondent, I must find against the Complainant and determine that the complaint is not well founded.

CA-00063401-11 Constructive Dismissal: the Complainant stated that he felt compelled to terminate his employment because of the issues arising in this referral comprising several complaints. However, no complaint that has been made against the Respondent has been upheld. The Complainant carries the burden where dismissal is in dispute to prove that he was dismissed arising from a fundamental breach in a contract of employment and/or due to the unreasonable conduct of the employer. No breach of any term of employment has been proven. The conduct of the employer is not questioned other than the imposition of reduced working hours arising from a reduced order book. However, that change never occurred and the employee left in a relatively short time frame during the discussion about reducing his hours of work. As no evidence has been presented that could support this claim for constructive dismissal and no grievance was raised by him prior to him resigning, I determine that the Complainant was not Unfairly Dismissed, and the employment ended by reason of resignation.

Alleged change in working hours