ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000972

Complaint for Resolution:

Date of Adjudication Hearing: 14/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

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

The Complainant was employed from 3^rd July 2013 until the employment terminated by reason of redundancy on 22^nd May 2015. The Complainant was employed as a General Operative and a Driver. He was paid €12.00 an hour and €10.00 an hour travelling time. Both Parties confirmed that the Complainant was not provided with a written statement of his terms and conditions of employment nor was he provided with the Grievance and Disciplinary Procedures of the Company.

The Complainant referred complaints to the Workplace Relations Commission on 14^th July 2015 alleging the (named) Respondent had breached the Payment of Wages Act, 1991 in that he had not been provided with minimum notice on termination of his employment, that the Respondent had breached the Organisation of Working Time Act, 1997 in relation to maximum hours worked and a complaint under the Unfair Dismissals Act, 1977 in relation to his dismissal. These complaints were under the Reference numbers r-158130-pw-15 – R-158181-wt-15 and r-159101-ud-15.

The Complainant referred three similar complaints under the Payment of Wages Act, 1991 – Organisation of Working Time Act, 1997 and the Unfair Dismissals Act, 1977 on 10^th December 2015, these named a different (named) Respondent.

Both Parties agreed to hear all the complaints together under ADJ 972.

The Complaints under the Payment of Wages Act, 1991 were both withdrawn at the Hearing.

The Respondent confirmed that the correct legal name of the Respondent was as set out under Respondent above and as stated in the complaints submitted on 10^th December 2015.

Preliminary Issue – Time Limits.

Section 41 (6) of the Workplace Relations Act, 2015 provides that complaints must be lodged within the period of six months of the alleged contravention to which the complaint relates. However Section 41 (8) of the Act does allow for an extension of time due by a further six months due to “reasonable cause”. The Complainant and his legal representative sought an extension of time on the basis that there was confusion over the name of the Employer and the trading name.

I decide to give an extension of time.

These complaints were submitted to the WRC on 10^th December 2015 and in accordance with Section 41 ((8) of the Act of 2015 the period covered by this complaint is from 11^th December 2014 to 22nd May 2015 when the employment terminated.

Payment of Wages Act, 1991 CA-00001392-002 and R-158130-pw-15.

These complaints were withdrawn at the Hearing.

Organisation of Working Time Act, 1977 CA-00001392-003 and r-158181-wt-15

Summary of Complainant’s Position.

The complaint r-158181-wt-15 named an incorrect Employer on the complaint form. The complaint of 10^th December 2015 stated the correct name of the Employer.

The Complainant stated that he drove from the Respondent’s Premises to sites all over Ireland fitting hygiene systems and wall and floor linings. He was paid for both working time and separately for travelling time. The Complainant stated that he worked on average 57 hours a week in the last year of his employment. He had an average of 46.3 hours from March to May 2015 and an average of 67.06 from January to March 2015. He is claiming the Respondent breached Section 15 of the OWTA 1977.

Summary of Respondent’s Position.

The Respondent stated that the Complainant worked on average 52 hours a week, including driving time.

Findings

A Preliminary Issue arises in relation to this complaint. The Complainant was employed both as a General Operative when he was fitting hygiene systems and doing wall and floor linings but he was also employed as a Driver when he travelled to locations all over Ireland. The issue arises does S.I. 36/2012 apply to the hours spent driving and Section 15 to the hours spent working. I consider the Complainant was employed as a Fitter and not as a Mobile Transport Worker as defined by S.I. 36 of 2012.

I note that the Complainant worked total hours of 683.15 hours from 16^th Feb 2015 to 25^th May 2015 = 52.55 hours on average per week. The Act provides that an Employer shall not allow an employee to work more than 48 hours a week on average in a four month period. I find that the Respondent has breached Section 15 of the Act.

Decision- CA-00001392-003

In accordance with my findings above and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. The Respondent has breached Section 15 of the Act. I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision.

Unfair Dismissals Act, 1977 CA-00001391-001 and r-159101-ud-15

Summary of Respondent’s Position.

The Respondent stated that there were 14 employees working doing similar work as the Complainant. Two employees, including the Complainant, were made redundant in May 2015. The selection was on the basis of Experience – skills- service and duties. The main function of the Respondent Company involved steel fabrication, welding stainless steel on walls, floors, ceilings, drainage systems. Within this a multitude of skills are required.

The Respondent stated that the Complainant came to the Company from a Tiling background but that work is not performed in the Company. He was trained when he joined the Company in July 2013 – this was confirmed by the Complainant at the Hearing. The Respondent stated that they seek to recruit stainless steel fabricators but these are difficult to recruit.

The Respondent identified two named employees who had been recruited after the Complainant but both had the skills and experience required for the job unlike the Complainant. One of the employees was a specialist experienced welder while the second employee held a licence for mobile platforms, a required skill in the Company.

Summary of Complainant’s Position.

The Complainant stated that his hours were being gradually reduced. He approached his Employer requesting a statement for the purposes of claiming Social Welfare in relation to this reduction in hours. He was informed to go to talk to the Accountant. He was informed there was no work for him and he was dismissed. He stated there was no letter of dismissal – he confirmed at the Hearing he had been provided with a letter of dismissal but that he has refused to sign it or acknowledge receipt of same.

The Complainant was informed by the Respondent, named, that there was no work for him. He stated he sought legal advice. He was offered a further two weeks work and he confirmed he did work up to 22^nd May 2015. He was then given his P45 and P60 by the Respondent. The Complainant stated there was no meeting re the selection process for redundancy, he was not provided with any information in relation to the difficulties being experienced by the Respondent.

The Complainant stated that he had resumed employment and he was requested to forward information post the Hearing but did not do so. The Complainant was also requested to provide information from the Department of Social Protection in relation to period of Job Seekers. This was received by the Adjudication Officer on 9^th March 2017. This confirms the Complainant was in receipt of Jobseekers Benefit from 22^nd May 2015 to 12^th October 2015

On the basis of the evidence from both parties at the Hearing I find that the Complainant was informed both verbally and in writing by letter dated 8^th May 2015 of the termination of his employment with an effective termination date of 22^nd May 2015. This was stated as being due to the downturn in business activity.

The Complainant confirmed at the Hearing that his hours had been gradually reducing prior to the termination of his employment.

The Complainant confirmed that he was initially employed and trained having come from a tiling background. The Complainant did not dispute the evidence of the Respondent in relation to welding skills required for the job to be performed. The Complainant did not dispute the evidence from the Respondent in relation to the two employees who were retained but had less service then him, in relation to their experience and skills.

In accordance with Section 8 of the Unfair Dismissals Act, 1977 and in view of my findings above I declare the complaint of unfair dismissal by reason of redundancy is not well founded.

Rosaleen Glackin

Adjudication Officer

Date: 05/04/2017