ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001534

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00002101-001	22/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00002101-002	22/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00002101-003	22/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00002101-004	22/01/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00002101-005	22/01/2016

Date of Adjudication Hearing: 14/04/2016

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, and section 7 of the Terms of Employment (Information) Act, 1994, and section 27 of the Organisation of Working Time Act, 1997, and section 6 of the Payment of Wages Act, 1991 and under Section 11 of the Minimum Notice & Terms of Employment Act, 1973, 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 complainant contends that he was forced to resign from his employment as a result of inter alia the persistent abusive behaviour of his employer.

He further states that he did not receive any written terms of employment pursuant to The Terms of Employment (Information) Act 1994.

He further states that he did not receive appropriate holiday pay, nor public holidays nor compensation for working Sundays. He states that he is owed pay for 40 hours of additional concrete work he carried our plus €200 he paid his son to assist him in August 2015. He states that he was forced to resign and did not receive notice pay.

Respondent’s Submission and Presentation:

The respondent, by letter dated 13^th April 2016, to the complainant’s solicitor, responded to the allegations made, and elaborated at hearing, summarised as follows:

The respondent does not accept that there has been an unfair dismissal. The complainant was taken on in employment as a general labourer following representations made to the respondent from the complainant’s father-in-law. The complainant was not a diligent attender at work. Numerous text messages were submitted in evidence to illustrate the point that the complainant would not turn up for work because his wife was ill, he was ill, the children were ill, his son was attending his debs and other reasons. He sought loans from the respondent and other co-workers and the extent to which the respondent went to try and help the complainant would not lead to the conclusion that this was an abusive employer. There were also many texts in evidence to suggest that the complainant himself had believed he let down his employer on occasions. It is submitted that the complainant left his employment voluntarily due to personal family problems and then asked for his job back in October 2015. Again, it is argued that this does not indicate that the employee was being abused in the manner suggested or at all. It is the respondent’s contention that this latter period was a new start and the respondent hoped the complainant would improve. However, in November he got a text message that the complainant’s car was broken down, and another one 8 days later that his car would not start. This brought the situation up to 28^th November 2015. On 30^th November 2015 the respondent received a text from the complainant to state that he would not be coming back to work as he was treated so badly. This was the first and only time the respondent heard about alleged abusive behaviour towards the complainant. It is entirely inconsistent with the evidence and is of concern to the respondent that this final text was generated to form the basis of the claim which is strongly refuted.

In relation to the Terms of Employment (Information) Act 1994, it is admitted that no written contract was furnished.

In relation to the claim for holiday pay, the respondent employer submits that, in its opinion, all due monies were paid. However, in that respect if it is found not to have been, the respondent has no difficulty. In relation to payment or time off for public holidays, generally employees come in to work for a few hours on public holidays to feed the horses etc and are paid. In relation to Sunday working, the respondent is at a loss to understand what is being claimed here.

In relation to the wages claim, it is argued that the concrete work the complainant carried out was part of his normal duties.

In relation to minimum notice, it is submitted that the complainant left his employment and the employer is not obliged to pay minimum notice.

Decision:

CA-00002101-001

Unfair Dismissal Act 1977

The definition of constructive dismissal in the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In claims of constructive dismissal, the burden of proof falls on the complainant to show that the conduct of the employer was such that it would have been reasonable for the employee to leave his/her employment effectively without notice. Having considered the evidence in this case, I accept the complainant’s evidence that the respondent spoke to him in an offensive manner on many occasions. However, the respondent and his family also went to great lengths to accommodate the complainant in his difficulties. On balance, I do not find that the burden of proof has been discharged in this case and I do not uphold the complainant’s claim that he was unfairly dismissed by way of constructive dismissal.

CA-00002101-002

Terms of Employment (Information) Act 1994.

The respondent admits that the complainant was not furnished with written terms of conditions of employment. The respondent should note that this is a breach of Section 3 of the Act. I require the respondent to pay to the complainant the sum of €1,110 compensation.

CA-00002101-003

There are a number of complaints under the Organisation of Working Time Act 1997 as follows:

Annual Leave:

The complainant was not given the provisions of the Act in relation to compensation for annual leave accrued and not taken on cessation of employment. I note some payment was made but the residual sum of €880 remains to be paid. I find the complaint well founded and I require the sum of €880 to be paid by the respondent to the complainant.

Public Holidays.

The Act provides that an employee should receive one of the following provisions:

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(d) an additional day's pay:

I find that in this case the provisions of the Act were not applied. I find the complainant’s complaint to be well founded and I require the respondent to pay to the complainant the sum of €666 compensation.

Sunday Working.

The complainant’s complaint that the sum of €46 was outstanding in compensation for Sunday working is well founded.

I find the complainant’s complaints in relation to the Organisation of Working Time Act to be well founded and I require the respondent to pay to the complainant the sum of €1,592 which is the monetary value together with the compensatory sum of €1,000 for breaches of the Act, making a total sum of €2,592 to be paid by the respondent to the complainant.

CA-00002101-04.

Payment of Wages Act 1991.

Three original complaints were submitted :

Payment for ‘concrete work’
Overtime (subsequently withdrawn at hearing)
Expenses in relation to race meetings

The complainant was paid €10 per hour in his employment. There was no written contract of employment. The Payment of Wages Act 1991 is designed to regulate what deductions can be made from the wages of employees, it is not a function of the Act or the Adjudication process to determine the appropriate rate for jobs. Section 5 of the Act governs the regulations by which deductions can be made. I do not find that the Act has been breached and I declare the complaint to be not well founded.

The issue of expenses is expressly excluded from the definition of wages in the Act and I do not have jurisdiction to find on the complainant’s claim for €100 shortfall he alleges occurred.

I declare the complainant’s complaints under the Payment of Wages Act 1991 to be not well founded.

CA-00002101-05. Minimum Notice and Terms of Employment Act 1973.

I find that the complainant left his employment and therefore his claim for minimum notice payment is not well founded.

Dated: 31 May 2016