Truck driver was underpaid but not discriminated against, WRC finds

A South African-born truck driver has been awarded close to €8,000 in underpaid wages and a shortfall in pay in respect of annual leave, but his claim that he was discriminated against because of his race has been rejected.

The Workplace Relations Commission ruled that there was a difference between the wage set down on the general work permit for Johannes Lodewikus Lee and the variable wage he received from Transeuro, a family-run logistics business which employs 11 workers.

Mr Lee was seeking adjudication under the Payment of Wages Act, 1991; the Organisation of Working Time Act, 1997; the Terms of Employment (Information) Act, 1994; and the Employment Equality Act, 1998.

Mr Lee worked as a HGV truck driver in his native South Africa. In November 2019, he was offered €39,000 (€750 per week) as a professional HGV driver with Transeuro. He accepted the job and a work permit was granted to cover the period January 19th, 2020, to January 2022 on €711 per week. The statement of main terms of employment reflected work done for a named customer supermarket.

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From the outset, he submitted his pay did not reflect that recorded on the work permit. This caused him to feel discriminated against, he said.

He worked a variable five- or seven-day week. He received €600 for five days net and €720 for six days net, but said he often received a basic wage of €450 to €500 per week, without explanation. There was an agreed upward alignment in his allowance paid in August 2020 from €42 to €63 per week.

Hannah Cahill BL, instructed by Molan Solicitors, said that Mr Lee typically started daily at 11am and finished at 4am, and following this he was forced to sleep in his unbranded truck, in locations bereft of washing or dining facilities and the payment of “sleep out” money.

Ms Cahill argued that Mr Lee was treated less favourably than his Irish co-workers in comparable positions based on his race. His conditions of employment were “completely degrading and unsuitable” when compared to those of the Irish staff, she said.

She said he encountered problems with his shortfall in wages due to his race, and he was not provided with a revised contract when the supermarket work ended.

She said he was not provided with a grievance procedure, and he raised issues through the informal pathway.

Mr Lee said he was “disgusted” to see a differential in wages. He said the salary “chopped and changed”, but he never received €711. He said that he had been taken advantage of by the company departing from the amount listed on the work permit rate. He said that another driver had a take-home pay of over €1,000 per week.

Transeuro, represented by Donnacha Kiely BL, instructed by Charles Daly & Co Solicitors, disputed all claims and contended that the working relationship between the parties constituted a “reasonable working relationship”.

The company said it held a reasonable expectation that Mr Lee would remain in the truck overnight on four nights per week from week 31 in 2020. They said this was not discrimination.

Workplace Relations Commission adjudication officer Patsy Doyle said that she had identified that there was a shortfall in gross pay for 25 of the 26 weeks immediately preceding February 9th, 2021.

Ms Doyle ruled that Mr Lee was underpaid wages within the cognisable period allowed for this claim, August 10th, 2020 to February 9th, 2021.

The adjudicator also identified a shortfall in the divisor paid in respect of annual leave based on the €750 gross wage.

Ms Doyle ordered Transeuro to pay the complainant €6,973 as reasonable compensation for the deduction in pay without consent. She also ordered the company to pay him €750 in respect of the contravention of the Organisation of Working Time Act, 1997. She further ordered them to maintain records of rest time given in respect of annual leave.

Ms Doyle found that Mr Lee had not discharged the evidential burden required to prove facts that discrimination on grounds of race occurred, nor had he discharged the evidential burden required to prove that harassment or victimisation on grounds of race occurred.