ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000995

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 25/05/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complaints under annual leave and public holiday entitlements were submitted twice and therefore duplicated by the processing system.

The following references the complaints and submissions under the various Acts:

CA-00000855-001

Complaint that the provisions of the Organisation of Working Time Act 1997 were not applied in regard to Sunday working.     The complainant submitted his records for the period 2010 to 2015. These included accounts of working on Sundays.

CA-00000855-002 & CA-00000855-005

Complaint that the provisions of the Act were not applied in regard to annual leave. The complainant submitted that he was not paid for annual leave.

CA-00000855-003 & CA-00000855-006

Complaint that the provisions of the Act were not applied in regard to public holidays. The complainant submitted that he did not receive time off or extra pay for working on public holidays.

CA-00000855-004

Complaint under the Payment of Wages Act 1991 that payment in lieu of notice was not given. The complainant submitted that he was dismissed and did not receive any statutory minimum notice.

CA-00000855-007

Complaint under the Terms of Employment (Information) Act 1994 that no written contract of employment was provided.

CA-00000855-008

Claim under the Unfair Dismissals Act 1977 that the complainant was unfairly dismissed.   The complainant submitted that the respondent dismissed his brother who was also an employee, after he refused to work on Saturday. He stated that the respondent then also dismissed him, and he was then sent to the Accountant’s office to collect his P45.

CA-00000855-009

Claim under the Minimum Notice and Terms of Employment Act 1973 that the statutory minimum notice was not given.

Respondent’s Submission and Presentation:

The respondent refutes all of the complainant’s complaints.

In particular, it is submitted that the respondent did not dismiss the complainant. It is argued that he and his brother went to the respondent on the Monday prior to the date of their final day of work and argued for money, and holiday pay. When the respondent would not accede to their requests, he stated that they walked out and said they were finishing up their employment the following Friday.

The complaints under the Organisation of Working Time Act are refuted.   It is argued that the Act does not apply to the complainant as he determined his own working time. Section 3(2) (c) is relied upon to support this argument.   Should the Act be deemed to apply, it is argued that Sunday working did not occur in the complainant’s employment. In regard to holiday pay, it is submitted that when the complainant left his employment, he was provided with a cheque for €942 holiday pay, evidence of which was presented.   In relation to public holidays, it is submitted that the complainant himself sought to work public holidays (and Sundays) and that although rarely worked, time off was given.

Decision:

Preliminary issue raised by the respondent –                                                                                                     I have considered the question does the Organisation of Working Time Act 1997 apply?   Section 3 (2)( c) of the Act provides that Part II of the Act (which governs the working time provisions) shall not apply to

“a person the duration of whose working time (saving any minimum period stipulated by the employer) is determined by himself or herself…”

I have considered the evidence of the working day provided by the parties. I note that the method of getting to work varied by means of (a) getting a lift from the other employee, (b) getting a lift from the respondent himself or (c) the loan of the respondent’s jeep. The complainant worked an average 40 hour week. There may have been some days he did not turn up or worked some weekends to make up for days during the course of his employment but this does not amount to determining his working time.   I do not find that the duration of normal working week was determined by the complainant and I deem that the Act applies to him.   In relation to the substantive complaints I find as follows:

The complainant’s complaints were received on 14^th November 2015. I have decided that the time period covered under the Act is from 15^th May 2015.

CA-00000855-001

Complaint that the provisions of the Organisation of Working Time Act 1997 were not applied in regard to Sunday working.     The complainant submitted his records for the period 2010 to 2015. These included accounts of working on Sundays. The respondent submitted no records.             Section 14 of the Act provides “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..”               The means outlined in the section are (a) payment of a reasonable allowance, (b) increasing the rate of pay, (c) time off, (d) combination of two or more of the above.   I note the complainant’s evidence that on occasions, the respondent wanted him to work some Sundays. I also note the conflicting evidence of the respondent that it was the complainant himself who wished to work Sundays, and who decided which days he would work and when he would take other days off.   On balance, I have decided that while the complainant may have substituted some Sundays for days lost during the week, I accept the evidence of the complainant that he was required to work some Sundays, and I declare his complaint to be well founded. I require the respondent to pay to the complainant the sum of €500 compensation.

CA-00000855-002 & CA-00000855-005

Complaint that the provisions of the Act were not applied in regard to annual leave. The complainant submitted that he was not paid for annual leave.   The respondent provided evidence of a sum of €942 for holiday pay given to the complainant on the final day of employment.           Section 23 of the Act provides:

The Act provides a definition of leave year as follows: “leave year means any year beginning on the 1^st day of April”. Having taken into consideration the sum given to the complainant for annual leave accrued at the end of his employment, I find it falls short of the sum allowable for the leave years 2013-2014 and 2014-2015.   I find that the sum of €904 should be paid to the complainant.

CA-00000855-003 & CA-00000855-006

Complaint that the provisions of the Act were not applied in regard to public holidays. The complainant submitted records he kept of his work days. I find that the complainant was not given a day off or an extra day’s leave, or a day’s pay as provided for in the Act. I declare his complaint to be well founded and I require the respondent to pay to the complainant the sum of €500 compensation.

CA-00000855-007

Complaint under the Terms of Employment (Information) Act 1994 that no written contract of employment was provided.   The Act provides that written terms of employment must be furnished to the employee by the employer within two months of the commencement of the employment.   In this case, the respondent submitted a document which purported to be a written contract given to the complainant. The complainant professed no knowledge of this document whatsoever, and categorically stated that he never received such a document. I believe his evidence and I uphold his complaint that Section 3 of the Act has not been complied with by the respondent. I require the respondent to pay to the complainant the sum of €1,400 compensation.

CA-00000855-008

Claim under the Unfair Dismissals Act 1977 that the complainant was unfairly dismissed.   There was conflicting evidence given in relation to the circumstances in which the employment of the complainant ended. The complainant stated that the respondent dismissed him after his brother refused to work on Saturday, 8^th August 2015. The respondent stated that after he was approached by the complainant and his brother, who was also an employee, looking for money/holiday pay, and after he refused that the two gave verbal notice and finished up the following Friday.   While it is difficult to reconcile the evidence, I note that even if the complainant employee resigned “in the heat of the moment”, there is a responsibility on the employer to resolve the issue or at least give the employee an opportunity to let matters cool down. I note there was no written resignation, or even a request from the respondent for one. In this instance I accept the evidence of the complainant that he was told he was no longer required. I note the evidence given that the other (only remaining) employee of the respondent was sent to bring the complainant up to the Accountant on the Friday.   I do not find it credible that an employee of over 5 years service would walk out of his employment over a dispute regarding holiday pay.   I uphold the complainant’s complaint that he was unfairly dismissed. I require the respondent to pay to the complainant the sum of €6,000 compensation.   In deciding this redress, I have taken into account the fact that re-instatement or re-engagement are not appropriate as the respondent is now sub-contracting the work. I have also taken into account the efforts made by the complainant to mitigate his loss.

CA-00000855-004

Complaint under the Payment of Wages Act 1991 that payment in lieu of notice was not given. The complainant submitted that he was dismissed and did not receive any statutory minimum notice. This is a duplication of CA-00000855-009 and the amount is covered in decision CA-00000855-008.

CA-00000855-009

Claim under the Minimum Notice and Terms of Employment Act 1973 that the statutory minimum notice was not given.   This is a duplication of the claim under CA-00000855-004 and the amount is covered in decision under CA-00000855-008.

I have decided that the complainant’s complaints are well founded and I require the respondent to pay to the complainant the total compensatory sum of €9,304.

Dated:   19^th July 2016