Complainant

Respondent

Parties

Jordi  Romero Coll

Caspian B.M.P Limited T/A Caremark Galway

Representatives

Self-represented 

Michael Kinsley BL instructed by Jason O Sullivan ,J.O.S Solicitors

Act

Complaint 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-00061945-002

03/03/2024

The Complainant commenced his employment with the Respondent on 25 September 2023.

On 3 March 2024, he referred his complaint to the Director General of the WRC pursuant to 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.

The Respondent rejects the claim.

The Complainant engaged in regular, albeit somewhat unstructured, correspondence with the WRC. For the purposes of this decision only the pertinent correspondence will be addressed.

On 14 March 2025, the Complainant emailed the WRC stating that he was dismissed from his employment and asking what he could do in this situation. A WRC official replied to the Complainant by way of email stating that should he wish to make additional complaints to the WRC, he needed to complete the e-complaint form which could be found on our webpage www.workplacerelations.ie.  The Complainant was further informed that the WRC Information and Customer Services do not provide advice or advocacy services, and he might wish to seek his own independent legal advice.

The Complainant reverted stating: “No, the only thing I want is for justice to be done, they have fired me for reporting terrible working conditions”.

In that regard and for the avoidance of any doubt, at the adjudication hearing on 22 May 2025, I explained to the parties that there was no other valid complaint before me other than the claim pursuant to 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.

On 15 Aril 2024, a letter informing the parties of a hearing scheduled for 8 May 2024 issued. The Complainant emailed the WRC confirming his attendance and stating that the WRC would need a Spanish-speaking interpreter. He forwarded a list of eight witnesses including a representative from the Spanish Embassy.

On 30 April 2024, the Respondent successfully applied for a postponement of the hearing. The Respondent also objected to the hearing being held remotely. In response to a request for comments, the Complainant replied on 1 May 2024 that the hearing should be in-person.

On 8 May 2024 correspondence issued to the parties informing of the arrangements for a hearing to be held on 6 June 2024.  On 9 May 2024, the Respondent successfully applied for a postponement of the hearing.

On 20 May 2024, correspondence issued informing the parties of the arrangements for a hearing to be held on 12 July 2024.  The hearing was cancelled by the WRC on 24 May 2024 and the parties were notified of same.

On 2 July 2024 correspondence issued informing the parties of the arrangements for a hearing to be held in-person on 30 July 2024. The Complainant emailed the WRC on the same day stating that: ‘As I said, it has to be ONLINE, since all my witnesses and I cannot attend in person. All this seems very unserious to me. Can the Spanish embassy contact you? Since the embassy is checking all the documents.’

The Complainant’s previous email where he indicated that the hearing must be in-person was forwarded to him. He was asked to clarify why an in-person hearing is not appropriate for this case. The Complainant reverted that he would be in Spain at the time of the hearing and all his witnesses were outside of Ireland.

On 4 July 2024, the WRC acknowledged the Complainant’s request to have the hearing held via remote means and informed the parties that the hearing scheduled for 30 July 2024 was cancelled and new remote/hybrid arrangements would be facilitated.

On 19 July 2024, correspondence issued informing the parties of a remote hearing scheduled for 9 August 2024. On the same day, the Respondent applied for a postponement on the basis of a scheduling conflict. The Respondent application for a postponement was approved.

Correspondence informing the parties of a hearing to be held on 22 May 2025 issued on 2 April 2025. Following the Complainant’s confirmation that he now resided abroad, the hearing was scheduled to be held remotely.

On the first day of the hearing, the Complainant requested an adjournment to allow him to prepare his response to the preliminary issue raised by the Respondent. The hearing was adjourned and the Complainant was afforded an opportunity to furnish his written submissions on both the preliminary and the substantive matters by 12 June 2025. The parties were informed that the Respondent would be then given three weeks to provide a replying submission. The Respondent requested that a decision regarding the disposal of the claim on the basis of the preliminary issue be made and communicated to the parties prior to the second day of the hearing.

On 27 May 2025, the parties were informed in writing that the next hearing would take place remotely on 9 July 2025.

On 11 June 2025, the Complainant furnished his written submission. A replying submission was received from the Respondent on 8 July 2025.

I wrote to the parties on 11 June 2025 with my reply to the Respondent’s request to dispose of the matter on the basis of the preliminary issue raised.

A second day of the hearing was held on 9 July 2025.

I wrote to the parties on 2 October 2025 and, to ensure procedural clarity, I informed the parties that a hearing would be arranged in due course to inquire into the substantive matter pursuant to 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 of 2012).

On 3 October 2025, correspondence issued informing the parties of the arrangements for a hearing to be held remotely on 19 November 2025.  

On 17 November 2025 at 3.04pm, the Complainant emailed the WRC informing that he was unwell and, for medical reasons, he would not be able to attend the virtual hearing scheduled for 19 November 2025. He requested that the hearing be rescheduled to a later date once he has recovered. The WRC reverted to the Complainant requesting a medical certificate to be furnished by 12pm on 18 November 2025. There appeared to have been no reply from the Complainant, I will address this point later. It is important to highlight that unless and until a party receives confirmation that the hearing has been postponed, the hearing will proceed as scheduled.

The hearing opened as scheduled on 19 November 2025. There was no appearance by, or on behalf of the Complainant at the adjudication hearing. The Respondent and its representative were in attendance and ready to defend the claim.  A Spanish language interpreter was also in attendance.

On my instruction, a WRC official contacted the Complainant on his mobile phone. The Complainant informed the official very briefly that he would not attend the hearing and that he had emailed a medical certificate to the WRC.

In light of the application from the Complainant, it was open to me, having heard from the Respondent, to either adjourn the hearing to an alternative date on the basis of the Complainant’s non-attendance, or to decline the application and proceed to decide the complaint on the basis of the written submissions and testimony already presented to me. 

The Respondent strongly objected to any further delay in this case and requested that a decision be issued on the basis of what was before me.

I explained to the Respondent that exceptional circumstances would have to prevail for me to allow for the adjournment of the hearing at this late juncture and rescheduling on another occasion.

On the basis of the Complainant’s statement that a medical certificate explaining his non-attendance had been emailed to the WRC, I decided to inquire into the matter further prior to deciding on his application. I informed the Respondent of my decision, and the Respondent raised no objections to this approach.

On inspection, it was determined that an email message which appeared to have been sent from the Complainant’s email address on 18 November 2025 at 18:15:22 (post the specified deadline) was blocked by the WRC IT service because it appeared to contain password protected data that was unable to be checked for viruses or content.

The WRC emailed the Complainant on 21 November 2025 informing him of the blocked email and requesting that should he wish to furnish any supporting documentary evidence regarding his non-attendance and his request to reschedule the hearing, he would be given a further opportunity to do so by close of business on Monday 24 November 2025.

The Complainant replied on the same day with a photograph of a document in Spanish which appeared to be a medical certificate. The WRC immediately responded to his email requesting that a translated version be furnished by close of business 24 November 2025. There was no reply to this request.

The WRC emailed the Complainant again on 9 March 2026 at 11.44am noting that the document he had submitted in support of his application to postpone the hearing was not in English or Irish nor was it accompanied by an official translation. The Complainant was informed that, with the view to assisting the assessment of his application, the Adjudication Officer was proposing to rely on the following google translation:

“Patient: Jordi Romero Coll

Date: 29 October 2025

Procedure: LASIK for astigmatic, myopic, and compound eyes (right/left).

Medical treatment and home rest are recommended for the next 24 hours. Post-operative instructions and appointments will be explained and provided.”

The Complainant was informed that should he have any objections to the translation, he would be given the opportunity to provide a certified translation by close of business 13 March 2026.

An email was received from the Complainant’s email address at 12.23pm on the same day containing no text but an attachment only. The attachment appeared to be unofficial translation of the medical certificate and stated as follows:

“Patient: JORDI ROMERO COLL

Date: 29/10/2025

Procedure:

LASIK – Compound Myopic Astigmatism (Right Eye)

LASIK – Compound Myopic Astigmatism (Left Eye)

Recommendations

Medical treatment and home rest are recommended for the next 24 hours. Postoperative

instructions and follow up appointments have been explained and provided.

Dr. José Luis Ruiz Tolosa – Medical License No. 080835631

Doctor's Signature

[Doctor’s contact details]”

Having carefully considered the matter, I decided that sufficient cause had not been shown to justify adjourning the case. In deciding to decline the Complainant’s request, I had regard to the following.

This complaint was referred to the Director General of the WRC on 3 March 2024. Two adjudication hearings regarding this complaint have already been held. The Complainant had requested and was granted an adjournment on the first day of the hearing to allow him to prepare his reply to the matters raised by the Respondent.

The medical certificate, as provided did not explain the Complainant’s non-attendance. The certificate is dated 29 October 2025. It states that the Complainant has had LASIK eye procedure on both eyes and required 24 hours recuperation. There was nothing in the certificate and in the correspondence from the Complainant to suggest that some 20 days after the procedure, he was unable to attend a remote hearing.

The requirement for fairness and equity must apply to both parties. In that regard, I considered the following obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd. [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows.”

Having regard to all the above, I was satisfied that, in all the circumstances, a further delay would be contrary to the parties’ right to have a fair and expeditious hearing of the matter within a reasonable timeframe. I decided that justice would not be served by postponing the hearing further.

An adjournment application is subject to the “exceptional circumstances and substantial reasons” test, I decided that there has been no compelling medical evidence before me to grant the adjournment.

I wrote to the parties on 18 March 2026 informing them of my decision that the Complainant’s application for an adjournment was denied. I informed the parties that the adjudication hearing has concluded and I will issue my decision in due course.

In the WRC complaint referral form, the Complainant alleged that he was required to work more than the maximum permitted number of hours.

In the Complaint Specific Details or Statement area of the form. The Complainant asserted as follows.

“They modify the rosters on the same work day, adding more hours that are not reflected in the application we have to know how many hours we work. Since the first day in this company, both I and my colleagues always work many more hours than legally allowed.”

On the first day of the hearing, 22 May 2025, in response to the Respondent raising a preliminary issue of the legislation pursuant to which the Complainant had submitted his claim, the Complainant stated that he chose it in error. He accepted that he was not a mobile worker. The Complainant stated that he made a “random choice”. The Complainant accused the Adjudication Officer of bias owing to the fact that I was “listening to what the Respondent’s lawyer was saying”.

Following a recess, the Complainant applied for his complaint to be considered under different legislation. The Complainant requested an adjournment to allow him to make a submission on the preliminary issue.

On 11 June 2025, the Complainant emailed the WRC with his submission. The WRC replied to the Complainant informing him that his submission appeared to contain personal data of third parties and could not be accepted by the Adjudication Officer unless it was redacted. Following some exchange of emails objecting to the requirement to redact the third persons data, the Complainant furnished his written statement as follows.

“

I.                     Preliminary Legal Clarification and Request to Amend the Complaint Form

…

I have received the legal point raised by the Respondent, arguing that my case does not fall under the scope of Regulation 18 of SI 36/2012 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

After reviewing this regulation, I acknowledge that my job duties do not strictly fall within the definition of “road transport activities” under this regulation. Therefore, I hereby formally request the amendment of my complaint form before the WRC to be considered under the more appropriate legislation, namely the Organisation of Working Time Act 1997.

This legislation specifically regulates:

Maximum permitted working hours per week The right to adequate rest and breaks Compensation for overtime Protection against systematic work overload I believe this legislation better reflects the legal basis of my claim and the abuses suffered during my employment at Caremark Galway / Caspian.

II.                   Written Statement on the Merits of the Claim

I, Jordi Romero Coll, hereby present the following statement regarding a series of contractual breaches and labor abuses experienced during my employment with Caremark Galway / Caspian. I provide supporting documentation for each relevant point.

Working Hours Exceeding Officially Recorded Hours

I regularly worked between 12 and 14 actual hours, while the records reflected only between 8 and 9 hours. Travel times between patients’ homes and returning to my own residence were not accounted for. Moreover, I was never granted a genuine one-hour rest break.

Attached evidence: IMG_1056.png, IMG_1057.png, IMG_1059.png (rostering sheets).

Mandatory Vehicle Charging Outside Working Hours

We were required to charge company vehicles outside working hours, initially at midnight (00:00), interrupting our rest. After repeated complaints, this was moved to 10:00 PM (22:00), which still remained outside paid working hours and without compensation.

Furthermore, we were threatened verbally and in writing that if the vehicle was not charged, it would be our fault. We were told we would have to bear any costs personally and that the lost time would not be paid.

Attached evidence: Screenshots of messages containing these warnings.

Transporting Colleagues Outside My Working Hours

After finishing my shift, I was required to drive colleagues to their homes, which added between 30 minutes and over an hour extra per day, time that was never recorded or compensated.

Attached evidence: Messages or records assigning me this task.

Physical Assault by a Client and Lack of Employer Action

On one occasion, a client physically assaulted me during work. I reported this incident to my employer, Caremark Galway / Caspian, expecting appropriate support and measures. However, the company took no action to protect me, investigate the incident, or prevent future occurrences. This neglect contributed to an unsafe and hostile work environment.

Attached evidence: Incident report or correspondence related to the assault.

Pressure to Accept Shifts on Days Off and Harassment Outside Working Hours

During my days off, I received 5 to 6 calls in a single day, pressuring me to accept shifts. Although I responded that I would notify if available, shifts were assigned without my explicit consent, as if I had accepted them.

Additionally, colleagues sent by the company came to my home as early as 6:00 AM, ringing the doorbell or knocking to ask for car keys, claiming they were not in the mailbox, although I always left them where instructed. These interruptions were constant, making it impossible to sleep even five hours consecutively, even on my days off.

Attached evidence: Screenshots and communication logs reflecting these interruptions.

Breach of Terms Established in the Signed Contract

My employment contract clearly stated that:

All hours worked would be fully paid Rest breaks and pauses would be respected The working day would be reasonably limited These terms were systematically ignored by the employer.

Additionally, I am attaching two versions of my employment contract: the original contract and a second contract provided to me after we raised complaints. However, this second contract did not reflect any substantial changes in the terms nor address the issues I reported.

Attached evidence: Copies of both contracts.

Attempted Forced Relocation Outside the Contracted Workplace and Retaliation After My Complaint My contract clearly states that my workplace is Galway.

Up until I raised complaints about working conditions, the company was very satisfied with my performance. I never received warnings or formal complaints.

However, in January 2024, Caremark attempted to relocate me to Mayo, nearly two hours from my home, expecting me to sleep there and work the entire weekend. This requirement directly violated my contract and adversely affected my personal life and health.

After I rejected this abusive condition and continued to complain about the working conditions, I was dismissed, despite my previously positive performance reviews. I consider this to be a direct retaliation for exercising my right to complain.

Attached evidence: Contract excerpt indicating Galway as workplace; messages related to the relocation attempt.

III.                 Request for Investigation and Compensation

I formally request:

A thorough investigation by the WRC into the systematic labor abuse practices of Caremark Galway / Caspian. Financial compensation for: Unpaid overtime hours Interruptions of rest time for undeclared tasks Transporting colleagues outside working hours Abusive attempted relocation Contract breaches and possible retaliation after complaint Failure to protect employees from client violence.”

On the second day of the hearing, on 9 July 2025, the Complainant stated that he did not know how to explain the matter of the referral of his claim under the Regulation 18. He said that he clearly made a mistake, but when he saw the Organisation of Working Time Act, 1997, he realised that his complaint would be more appropriate under the Act.

The Complainant submitted that he was not Irish, he completed the WRC complaint referral form by himself and he did not know much about legislation.

On 20 May 2025, the Respondent furnished the following written submission.

Overview

The Complainant has brought a claim against the Respondent under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“the 2012 Regulations”).

The Complainant does not indicate on the WRC form what reference period is being relied on or referred to in his claim under the 2012 Regulations.

The Complainant forwarded a submission to the WRC which outlines a number of matters of complaint against his former employer. However, the only claim before the WRC is the claim commenced under the 2012 Regulations.

Factual Background

The Respondent is a company providing home care services to service users within the community.

The Complainant applied for employment with the Respondent in September 2023 and was successful. The Respondent provides a comprehensive programme of training for new employees and the Complainant underwent this training which was completed on 9 October 2023.

The Complainant was appointed as Field Care Supervisor on 1 October 2023 commencing work, following training, on 9 October 2022.

The Complainant’s work involved travelling to service user’s houses and providing care as required. The Complainant received a salary as set out in his contract of employment and received accommodation and the use of a company vehicle.

The Complainant’s employment terminated on 15 March 2024.

Preliminary Issue

The Complainant has commenced a claim under Regulation 18 of the 2012 Regulations. Regulation 18, as amended, provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of Regulation 5, 8, 10, 11 or 12 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provisions of these Regulations that have been contravened, or

(c) require the employer to pay the mobile worker compensation of such amount (if any) as the adjudication officer considers 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”

Regulation 3 of the 2012 Regulations sets out the scope of the Regulations. It provides:

“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 Regulation or the AETR applies.”

Therefore, in order to invoke the provisions of the 2012 Regulations a worker must be engaged I “road transport activities” to which Council Regulation (or the AETR) applies.

“Council Regulation” means Regulation (EC) No. 561/2006 of the European Parliament and of the Council of 15 March 2006 as amended by Regulation (EC) No. 1073/2009 of the European Parliament and of the Council of 21 October 2009.

The AETR is defined as “the European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport done at Geneva on 1 July 1970”.

Article 2 of Regulation (EC) 561/2006 provides the scope of the Regulation. It states

“This Regulation shall apply to the carriage by road:

(a) of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3,5 tonnes, or

(b) of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose.”

The Complainant herein was not therefore engaged in “road transport activities” for the purposes of the 2012 Regulations and is therefore not entitled to bring a claim under those Regulations.

It is submitted that, given that the Complainant herein is not a person engaged in “road transport activities” the WRC does not have jurisdiction to hear the Complainant’s claim.

Response to claim

The Complainant was employed between October 2023 and March 2024.

The Complainant’s contract provides that his working hours would “not exceed 48 hours”. This provision of the Complainant’s contract was complied with. The Clamant worked 5 days one week and 4 days the next. The Respondent has submitted documentation in support of this.

The Complainant received a salary of €27,300.

The Complainant was rostered to drive from one service user’s home to another service user. The Complainant’s hours of work during this period averaged less than 48 hours per week including travel time. The Complainant was afforded all of his breaks and rest periods.

Conclusion

The Respondent complied with all of its legal and contractual obligations towards the Complainant. The Complainant has not set out clearly his claim against the Respondent and the Respondent is therefore prejudiced in its defence of the claim.

On 8 July 2025, the Respondent furnished the below supplementary submission.

Overview

This submission should be read in addition to the Respondent’s previous submission in this case.

The within case was listed for hearing online on 22nd May 2025.

The Complainant has brought a claim against his employer under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“the 2012 Regulations”).

Very little detail is provided regarding the nature of the Complainant’s claim in the WRC form, which states that

“the roster only reflects the hours of customer service without taking into account travel between clients. Additionally, some clients are outside the county and the travel that this implies is not taken into account.”

At the WRC hearing, the Complainant indicated that he wished to make an application to amend the WRC claim form. As set out in letter dated 9 June 2025 from WRC Adjudicator following the hearing:

“At the adjudication hearing, the Complainant indicated that he wished to make an application to amend the complaint form. The Complainant was provided with an opportunity to make a submission in that regard by 12 June 2025. Thereafter, the Respondent would be given an opportunity to provide its submission in reply.”

At the hearing of the matter the Respondent indicated its opposition to any amendment of the WRC claim form and indicated that, without prejudice to this position, any such amendment application must be made in detailed and particularised format and the Respondent should be given an opportunity to respond, in light of any amendments sought by the Complainant.

The Complainant was therefore provided by the Adjudicator with an opportunity to set out his application for an amendment in full.

The Complainant submitted a further submission on 11 June 2025. This submission, contained in text of email of 11 June states that the Complainant wishes to have an amendment made to the WRC claim form to include a claim under the Organisation of Working Time Act 1977. These claims are itemised as “Working Hours Exceeding Officially Recorded Hours I regularly worked between 12 and 14 actual hours, while the records reflected only between 8 and 9 hours. Travel times between patients’ homes and returning to my own residence were not accounted for. Moreover, I was never granted a genuine one-hour rest break.”

Further, the Complainant states

“Mandatory Vehicle Charging Outside Working Hours

We were required to charge company vehicles outside working hours, initially at midnight (00:00), interrupting our rest. After repeated complaints, this was moved to 10:00 PM (22:00), which still remained outside paid working hours and without compensation. Furthermore, we were threatened verbally and in writing that if the vehicle was not charged, it would be our fault. We were told we would have to bear any costs personally and that the lost time would not be paid.”

The remainder of the matters set out in this email of 11 June 2025 appear not to relate to a claim under the OWTA 1997.

It is submitted that the sole legislative provision cited by the Complainant is the OWTA 1997 and it is therefore this Act alone which is the subject of the Complainant’s request for an amendment.

The Complainant’s written submission consists of contractual documentation, email and other correspondence and photographs. No detail is provided in the Complainant’s submission regarding what relevance these matters have to his claim.

It is submitted that it is for the Complainant to identify what changes to the WRC claim form he requires, and it would not be appropriate or in compliance with fair procedures and natural justice for the WRC Adjudicator to, make amendments on behalf of the Complainant.

The Complainant has failed to provide a reasonable basis for any amendment of the WRC form. The Complainant provides no explanation in submission or email of 11 June 2025 for either the amendment he seeks, or the reasonable basis for his failure to identify those pieces of legislation or causes of action when he lodged his claim. It is submitted that the Complainant must identify a reasonable basis for the amendment and his failure to identify other causes of action at the time of the submission of his complaint to the WRC.

Further, and without prejudice to the above it is submitted that the Complainant’s case is not a case in which it is appropriate to amend the claim form. In the Complainant’s case, he has identified matters in the WRC form which would engage the 2012 Regulations. It is submitted therefore that the Complainant’s failure to identify any other legislation in his claim form is not the result of a typographical error but rather an error of law. It is submitted, and without prejudice to the above submission that it is for the Complainant to identify the exact amendments he wishes to make, that any jurisdiction on the part of the WRC Adjudicator to make amendments to the WRC form cannot extend to rectifying errors of law in the form. The Complainant has made his claim under the 2012 Regulations, and the Respondent has identified a preliminary issue regarding jurisdiction that the Complainant cannot overcome. It is respectfully submitted that the WRC Adjudicator is not entitled at this remove, to rectify the Complainant’s claim.

In County Louth VEC v the Equality Tribunal [2009] IEHC 370 (and on appeal at [2016] IESC 40) the High Court indicated that it was permissible for the WRC (or Equality Tribunal in that instance) to amend the form underlying the complaint. However, it is submitted that a number of important limitations were placed on that power by both the High Court. In the first instance, the Court permitted an amendment which essentially expanded an employment equality claim brought by the Complainant to include matters which had not been included on the EE1 form. The High Court commented that this was permissible “so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

It is submitted that what is sought by the Complainant herein is entirely different. The Complainant herein seeks not to expand a statutory claim which has already been submitted but to bring new claims under legislative provisions not previously identified by the Complainant.

Further, and importantly, it should be noted that the Supreme Court on appeal. Per MacMenamin J and McKechnie J respectively held that the decision of the High Court Judge in respect of the effect of the EE1 form were to be overturned or were merely obiter.

It is submitted therefore that County Louth VEC is not authority for the proposition that the WRC Adjudicator in the instant case enjoys a wide-ranging authority to amend the underlying claim form. In this regard, the Respondent relies on the comments of Mr Justice McKechnie at paragraph 35 and 36 of his judgement in County Louth VEC where the Court outlined the limitations placed on the role of a statutory decision maker. The Court stated

“35. It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.

36. Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.”

It is submitted that the WRC Adjudicator in the within case has been referred the within complaint by the Director General of the WRC pursuant to Section 41(1) of the WRA 2015. The said subsection provides

“An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer”.

It is submitted that the relevant complaint referred by the Director General of the WRC was in respect of the alleged contravention of the 2012 Regulations (which are contained at Part 2 of Schedule 5, as required by Section 41(1). It is respectfully submitted that this referral sets the parameters of the WRC Adjudicator’s statutory jurisdiction in this matter. It is submitted therefore that it is not open to the WRC Adjudicator to amend the claim form and to embark upon an inquiry into matters outside of the 2012 Regulations. It is respectfully submitted that such an enquiry would amount to a “freelance” enquiry as discussed in the decision of the Supreme Court in County Louth VEC and would be ultra vires the 2015 Act.

It is submitted that there is no lawful basis for the extension of the complaint before the WRC to include legislative schemes which were not invoked by the Complainant and haven’t been invoked within the statutory period

It is submitted that the decision of the Court in County Louth VEC makes clear that a respondent must be in a position to know what legislative provisions are being relied upon in the case against it. It is submitted that the Respondent herein cannot be in a position to know this, given that the Complainant hasn’t identified the relevant statutory schemes.

It is submitted that the WRC Adjudicator should determine the issue of the amendment of the claim form as a preliminary issue so that the Respondent is in a position, as a matter of procedural fairness, to know what case it is to meet. In this regard, the Respondent relies on the decision of the Supreme Court in County Louth VEC and the decision of the High Court in Hanley v PBR [2024] IEHC

Conclusion

The Respondent submits that the claim under 2012 Regulations must be held to be unfounded and dismissed.

The Respondent submits that the Complainant has failed to provide any basis for the amendment of the WRC claim form, despite being given ample opportunity to do so. It is respectfully submitted that it would be ultra vires the WRC and an error of law to amend the WRC claim form in the circumstances.

On the second day of the hearing on 8 July 2025, the Respondent reiterated it preliminary objection. The Respondent asserted that the Complainant made a claim under Regulation 18, the Director General delegated a claim pursuant to Regulation 18 to the Adjudication Officer. The Respondent argued that there was no statutory basis to amend the claim.

The Respondent asserted that the Complainant made a choice and was given an opportunity to explain why he made this choice. He never argued that he did not understand or ticked an incorrect box. It was argued that the Complainant made an error of law and on foot of what happened at the hearing, he decided that he wanted to amend his claim.

On 3 March 2024, the Complainant referred his complaint to the Director General of the WRC pursuant to 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 (‘Regulations 2012’).

The Respondent rejects the claim.  

The Respondent asserted that the Complainant referred his claim pursuant to the Regulations 2012. The Respondent asserted that the Complainant was not a “mobile worker” as defined by the Regulations 2012, and therefore the Respondent requested that the claim be dealt with and disposed of on a preliminary matter.

I have considered the Respondent’s request. On 11 June 2025, I wrote to the parties regarding the Respondent’s request to have the preliminary matter decided upon in advance of the second day of the hearing.

“…I note your reliance on Hanley v PBR Restaurants Ltd. [2024] IEHC 662 and, in particular, para. 16 of this judgment.

“16. Where a party to an appeal does not agree to the court determining a preliminary issue (other than in relation to a jurisdictional issue such as time where there is a clear jurisdiction to determine jurisdiction as a preliminary issue) then no matter how efficient a preliminary determination might appear to be, the Labour Court is required to allow that party to be heard and to present its evidence including any new evidence it may wish to raise, in accordance with section 44.”

The reference of time limit and the issue of jurisdiction in that decision is, in my view, an obiter and whilst it is given as an example of what could be suitable for preliminary hearing it does not delve in the details of the circumstances where it could be considered possible.

It was suggested at the adjudication hearing that, in circumstances where the matter is disposed of on a preliminary matter basis and without hearing the substantive matter, the Labour Court would nevertheless be permitted to hear the matter in full at a de novo hearing.

The nature of a de novo appeal was set out by the Supreme Court in Fitzgibbon v The Law Society of Ireland 2015 1 IR 516 and was relied upon by Ms Justice Bolger in the Hanley judgement where she stated at para. 13

13. (…) Clarke J. (as he was then) set out what was involved in a de novo hearing. He stated at para. 102: “It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first instance body are not automatically properly before the appeal body. It seems to me that, by defining an appeal as a de novo appeal, any legally effective instrument necessarily carries with it those two requirements.”

He went on at para. 107:

“In summary, therefore, it seems to me that the use of the term ‘de novo appeal’ or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies.”

He did recognise at para. 103 that, “…the process at first instance may narrow the issues which truly remain alive in whatever adjudicative proceedings are under consideration.” He gave the example of the de novo appeal to this court from almost all civil decisions of the Circuit Court which are considered by the High Court judge “…afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit Court Judge”, although the pleading exchanged in the Circuit Court may have narrowed the issues between the parties. Clarke J. concluded that “the issues remain thus narrowed on any appeal.”

Neither the Hanley nor the Fitzgibbon judgment, in my view, suggest that an appeal would be available in the absence of a decision in the first instance.

Furthermore, neither the Workplace Relations Act 2015, as amended, nor the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, as amended, empowers me to make a separate decision on a preliminary matter in a manner analogous to the provision of section 79(3A) of the Employment Equality Act 1998, as amended.

I rely on the following dicta of Phelan J in Singh v Corbertt [2023] IEHC 27 in support of my position:

“[T]he jurisdiction to direct the trial of a preliminary issue is one to be exercised with great caution … which stems from litigation experience which shows that it may be very difficult in some cases to predict in advance of the hearing what facts might be critical in determining the issues which they potentially give rise to.”

Furthermore, in a recent judgment in McKeown v The Minister for Defence, Ireland and the Attorney General [2025] IEHC 177 Mulcahy J at para. 34 recites the criteria set in Campion v South Tipperary County Council [2015] IESC 79; [2015] 1 IR 716 and highlights that it is rarely appropriate to have the matter dealt with by way of preliminary trial

If I were to accede to your request to make a decision on a preliminary matter, which on appeal to the Labour Court was overturned, the Labour Court could not remit the case back to the WRC for a fresh hearing of the whole case.

If this were to happen, the parties would be denied access to justice as is their right. The fact that both parties have provided submissions on the preliminary matter does not confer any discretion on me in this regard. Hence my intention to hold a unitary hearing into this case.”

On 2 October 2025, I wrote to the parties regarding the Respondent’s request that, prior to the third day of the hearing, correspondence be issued to the parties specifying the legislation under which the matter would proceed. I outlined the parties’ respective positions on the matter and concluded as follows.

“The Complainant did not dispute that, at the time of the referral of his claim, he believed his entitlements in the context of his claim derived from the Regulations of 2012. Whilst I recognise the Complainant presented as a litigant in person and did not have representation (albeit in his correspondence to the WRC of 8 May 2024, the Complainant makes reference to “legal expenses”), on the first day of hearing the matter was clarified to him and he was given an opportunity to obtain any advice he deemed appropriate or explore the matter himself.

The Complainant subsequently sought to amend the complaint form as, upon review, he believed that the Organisation of Working Time Act, 1997 “better reflects the legal basis of [his] claim”

I note that the circumstances in which a Complainant can subsequently amend an original claim were considered by the High Court in the case of the Louth VEC v The Equality Tribunal [2009] IEHC 370 in which McGovern J. held as follows at paragraphs 6.2 and 6.3:-

“I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint remains the same."

In considering this matter, I have noted the judgement of McKechnie J. in the Supreme Court case of County Louth VEC v The Equality Tribunal [2016] IESC 40 where it was held that:

“As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant … seeks redress by referring the case to the Director (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact, the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

McKechnie J. further held that:

“Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.”

I have regard to Mc Kechnie J stating that the Tribunal cannot “freelance its inquiry”:

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.”

I also note the dicta of MacMenamin J. in County Louth VEC at para 61:

“It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I note that this judgement related to a claim under the Employment Equality Acts. However, I am satisfied that the reasoning in relation to the referral of complaints to a quasi-judicial body using a non-statutory form is applicable to the present case. The online complaint referral form used by the WRC is not a statutory form, and therefore, a complainant is not legally obliged to use this form when referring a complaint to the WRC.

It is clear from the jurisprudence that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the circumstances, the question that I must decide is whether the inclusion of the claim pursuant to the Organisation of Working Time Act, 1997 constituted the furnishing of further and better particulars in relation to the Complainant’s initial claim or if these matters constitute an entirely different complaint than that, which had been made in the original complaint.

In applying the dicta of MacMenamin J. in the County Louth VEC case it is clear that the jurisdiction of an Adjudication Officer when investigating a complaint only relates to matters which have been referred or notified to the WRC by the Complainant and does not extend to the conduct of a “wide ranging inquiry”.

It is clear that the Complainant’s initial claim only refers to the Respondent modifying the rosters, adding more hours, and working more hours than legally permitted. The Respondent correctly noted that all these matters could potentially fall within the ambit of the Regulations 2012 if an employee was a mobile worker.

In his submission addressing the matter the Complainant acknowledges that his “job duties do not strictly fall within the definition of “road transport activities” under this regulation.” He then seeks an amendment of the complaint form to allow the matter to be considered under “the more appropriate legislation, namely the Organisation of Working Time Act 1997” and states:

“This legislation specifically regulates:

Maximum permitted working hours per week The right to adequate rest and breaks Compensation for overtime Protection against systematic work overload

I believe this legislation better reflects the legal basis of my claim and the abuses suffered during my employment at Caremark Galway / Caspian.”

The Complainant then goes on and under a heading “Written Statement on the Merits on the Claim” lists the following “relevant points”

·         Working hours exceeding officially recorded hours

·         Mandatory vehicle charging outside working hours

·         Transporting colleagues outside working hours

·         Physical assault by a client and lack of employer’s action

·         Pressure to accept shifts on days off and harassment outside working hours

·         Breach of terms established in the signed contract

·         Attempted forced relocation outside the contracted workplace and retaliation in response to his complaint

In the circumstances, I find that the inclusion of the claim pursuant to the Organisation of Working Time Act, 1997 does not constitute the furnishing of further and better particulars in relation to the Complainant’s initial claim. I find that the Complainant’s request in relation to the matters raised in his email of 11 June 2025 goes beyond the furnishing of further and better particulars in relation to the Complainant’s initial claim, and therefore, constitutes a new complaint which had not been included in the initial referral.

I note my jurisdiction to hear the complaint as delegated to me derives from the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. I find that I cannot now simply change direction in this case and depart from my delegated jurisdiction to a separate jurisdiction.

I have carefully considered the matter and, to ensure procedural clarity, I wish to confirm that a hearing will be arranged in due course to inquire into the substantive matter pursuant to 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 of 2012).”

An adjudication hearing for the purpose of an investigation of the substantive claim was scheduled for 19 November 2025. The parties were notified of the arrangements for the hearing on 3 October 2015.

At the commencement of the hearing, it became apparent that there was no attendance by, or on behalf of the Complainant. A WRC official contacted the Complainant on his mobile phone. The Complainant stated briefly that he would not be attending the hearing and that he had forwarded a medical cert.

The Respondent attended the hearing with its representative to defend the complaint. The Respondent requested that I decide this case in the absence of the Complainant at hearing. I explained to the Respondent that in order to make a decision on the adjournment application, I needed to investigate whether the Complainant did, in fact furnish a medical cert and, if that was the case, whether the cert would shed light on the reasons of the Complainant’s non-attendance.

The circumstances relating to the receipt of the medical cert are outlined above.

The principles governing applications to adjourn proceedings on grounds that a party is unfit to progress the litigation are set out in the case law of the Supreme Court (Tracey v. McDowell [2016] IESC 44 and Tracey v. Irish Times [2019] IESC 62) and of the Court of Appeal (Kildare County Council v. Reid [2018] IECA 370; Hanrahan v. Gladney [2018] IECA 403; Geary v. Property Registration Authority [2020] IECA 132 and Hanrahan v. Minister for Agriculture and Food [2020] IECA 340).

In accordance with the case law, any application for an adjournment sought on medical grounds must be supported by evidence in the form of a medical report or certification prepared by a medical professional which, at the very least, identifies the party’s medical condition(s) based upon a proper examination, provides a professional opinion that the party is medically unfit to attend the hearing, and identifies when the party may be able to attend a hearing in the future, given his or her condition and the prognosis thereof.

In light of the difficulties with the Complainant’s password protected documents, the Complainant was given an opportunity post-hearing to furnish medical evidence explaining his non-attendance.

Having carefully considered the matter, I concluded that the medical cert, as provided does not explain the Complainant’s non-attendance. I wrote to the parties on 18 March 2026 informing them of my decision that the Complainant’s application for an adjournment was denied. I informed the parties that the adjudication hearing has concluded and I will issue my decision in due course.

My jurisdiction in this case is drawn from 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.

The Respondent asserted that the Complainant was not a mobile worker within the definition of the Regulations. The Complainant did not dispute this assertion.

There was no dispute that the Complainant was not a mobile worker within the definition of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 and, therefore, was not covered by the Regulations.

I declare this complaint to be not well founded.

Not a mobile worker