A van driver who said he had to urinate in a bottle because of the pressure of 10-hour cross-country delivery runs for an Italian food importer has won €15,000 for working excessive hours without breaks.
However, the driver, Bray man Dumitru Sehleanu has failed in his constructive dismissal claim against Cordelia Foods Ltd of Lower Kilmacud Road, Stillorgan, Co Dublin under the Unfair Dismissals Act, with other statutory complaints also rejected by the Workplace Relations Commission.
In a decision published today, an adjudicator wrote that there had been "significant working time breaches" in the case which were "longstanding".
At a hearing in January 2022, Breda Pickford of Bray Citizens' Information Centre, which represented Mr Sehleanu in his complaints, said her client was supposed to work from 7am to 5pm for €100.
But instead he found himself working an average of 12 to 13 hours a day.
He had to make return journeys of 600km to 900km on delivery routes stretching from the firm's warehouse in Newtownmountkennedy, Co Wicklow as far as counties Mayo, Sligo, Limerick, Clare, and even Co Kerry, Ms Pickford said.
On top of that, she said, Mr Sehleanu was also asked to pull orders and pack the van at the warehouse and balance invoices and cash takings at home at the end of the day, she said.
"He had no time to take a lunch break or any rest period. He continued this way for a year before he brought the issue to his line manager who told him he should be driving quicker," Ms Pickford said, adding that her client's only chance to use a bathroom was by asking delivery customers.
"When nature called, he did have a bottle in the van in order to cover those situations," she said.
Raffaele Capolupo, a human resources consultant representing Cordelia Foods, said this was untrue.
"I appreciate the comparison that you have drawn with Amazon, with the big scandal. There has never been a bottle in the van," he said.
Ms Pickford also put it to Mr Capolupo that her client had sent a number of WhatsApp messages to his line manager Mr Matozzo referring to driving in excess of the maximum legal speed limit on a public road, including a picture showing a measured speed.
"My client is showing you he's going at 150km/h in order to get his deliveries done," she said.
In another text she said Mr Sehleanu had written that he was "leaving Tullamore" and would have to drive at "140 or 150km/h in order to get to Bray by 5".
Mr Capolupo said if those texts from Mr Sehleanu were a true account of his driving "he should be fined".
Ms Pickford said it was her case that there had been "a combination of breaches of legislation" which left her client with "no choice" except to resign because of the "actions of the employer".
"Every week was well beyond 48 hours. It varied, we are being generous [in saying] 55 up to 70 – that would be including hours at home," she said. "Our client worked a minimum of 60 hours, along with Saturdays, every week."
"It was very difficult to hear all that," said Mr Capolupo. "Everything Ms Pickford said is incorrect."
"There were significant working time breaches, and these were longstanding," wrote adjudicating officer Kevin Baneham in his decision on the case.
He rejected vehicle tracking data submitted by the firm as a record of Mr Sehleanu's working time, as there was no record of who was driving, some of the firm's vans were not fitted with trackers and because they did not capture the complainant's other duties.
"I accept the complainant’s evidence of not being able to take breaks and even having to be "creative". This is borne out by his frustration in the messages to the respondent, about being stuck in congestion for hours," he wrote, upholding Mr Sehleanu’s claim under the Organisation of Working Time Act.
"Rest at work is important, in particular for those doing physical work and driving long distances. For these reasons, I award redress of €7,500," Mr Baneham wrote.
Mr Baneham also ruled that Mr Sehleanu was working "beyond the weekly maximum of hours" over a four-month reference period between 11 May 2020 and 10 August 2020, awarding a further €7,500 in compensation.
Mr Baneham wrote that the working time violations on their own did not amount to a "repudiatory breach" of contract on the company’s part, but taken in combination with the health and safety issues, they could have, Mr Baneham wrote – if Mr Sehleanu had raised it with the employer before quitting.
"He did not do so and therefore there was no repudiation of the term of mutual trust and confidence. He resigned out of the blue. He cannot succeed on the reasonableness test," Mr Baneham wrote.
He rejected Mr Sehleanu’s constructive dismissal complaint pursuant to the Unfair Dismissals Act on that basis, along with a further claim of penalisation under the Safety, Health and Welfare at Work Act.
A National Minimum Wage Act complaint was also rejected in the case, as the complainant had failed to seek a statement of his hours from his employer prior to lodging it.
The total compensation awarded to Mr Sehleanu was €15,000.
The WRC was told he had since secured new employment as a firefighter stationed in his home town, Bray, Co Wicklow.
