Representatives

Katherine McVeigh, Barrister. Delany Quinn Solicitors

Connellan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00012280-001

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012280-003

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012280-004

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00012280-006

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012280-007

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012280-008

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012280-009

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00012280-012

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00012280-013

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012280-014

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00012280-015

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012280-016

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00012280-017

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012280-018

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012280-019

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00012280-020

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00012280-021

03/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00012280-022

03/07/2017

The complainant was on probation and alleged that he was required to work excess hours meaning that he was in receipt of less than the minimum wage and in breach of the Organisation of Working Time Act. He was also dismissed during his probationary period on the grounds of incompetency which he disputes. He feels he was subjected to bullying.

The complainant was employed as a Business Development Manager with the respondent and commenced on 4th July 2016. He was responsible for recruiting professional candidates, in particular, in the engineering area. During his employment the emphasis kept changing between candidate focus to client focus. It was necessary for the complainant to travel to Dublin most days and attend on building sites to increase the profile of the company. He was on the road approximately 39 days during the period of his employment. His objective was to source CVs from white collar professional personnel in the construction industry. This work necessitated additional hours of approximately 12.5 per week over a period of 11 weeks and 3 days – from 11th July until 29th September - which meant that the complainant was receiving less than the minimum wage. The complainant was unable to take rest periods during this time.

On the second week of his employment the complainant met with one of the Directors of the company and, following further consultation with the second Director, Mr A, they arranged to have a meeting on 22 July in Carrick on Shannon to discuss a marketing plan. This meeting never took place. On 4th October the complainant was taken ill with shingles. He informed the respondent and submitted medical certificates. He received no response. He offered to work from home for the period of illness. He did not receive payment or commission for this period. He returned to work on 31st October and remained until 8th December when he suffered a relapse and was absent for a further week. The marketing meeting never took place and there was no budget or short-term management plan. He was subjected to constant harassment by Mr A when calling to building sites.   Mr A would call at 10.a.m. asking how many sites he had called to. The complainant was working 12 to 14 hours per day, covering about 150 sites as well as trying to deal with a promotion in Knock Airport. He spent 9 days at the airport and had to be there for 10 to 12 hours plus travel time each way of about 40 minutes.  In mid-November, following discussions with Mr A, the complainant was requested to work in the office. He was informed he would receive training to improve his IT skills which did not happen. He was subjected to constant scrutiny and harassment by Mr A who would sit close to the complainant, staring at him with periods of deliberate silence. The terms of the complainant’s contract were changed in December requiring him to combine site visits with office work. The office was closed from 21st December until 4th January 2017. During this period the complainant did work by phone and email. On his return, he was called to the office by Mr A and dismissed on the grounds of incompetency on IT skills.   Mr A said he was giving the complainant one week’s notice. The complainant has considerable experience in business and sales and did not believe that his dismissal was related to incompetency or performance.

The complainant did not have the review after three months of his employment as required under his contract. The disciplinary process outlined in his contract was not adhered to. The nature of the employment conditions and expectations placed on him were changed without notice altering the original nature of his contract.

While the complainant received one week’s pay in lieu of notice, his contract only provided for payment in lieu of notice if agreed. The complainant did not agree.

In relation to the hours worked the respondent was in breach of the minimum wage. In the course of his employment he worked 58 hours per week which is in excess of the maximum under the Organisation of Working Time Act. He did not receive the required breaks.

The Respondent, in a preliminary issue, objected to the hearing of issues under the Industrial Relations Act. The respondent sent an email within the required time period to an address on the WRC web site.

The complainant originally asked the respondent to employ him. He was never employed in a marketing capacity. At no stage did the respondent require the complainant not to take breaks and the email dated 19th July is evidence of this. Furthermore, the respondent was given receipts for food purchased during this period. It was up to the complainant to manage his own time in this regard. The respondent disputes that there were 39 days spent on site visits and from his records believes the figure to be 25. This is based on receipts from tolls.

During his period of employment the complainant was given regular feedback on his performance including emails detailing the areas where improvement was expected. A manual was prepared for him detailing how to use the IT system. In spite of this the complainant was unable to use the system and damaged it by deleting records. Other performance issues included not visiting 10 sites per day as required, inaccurate information on excel files, sending out CVs without Mr A’s approval, using his personal phone during office hours, contacting people from companies who were already clients of the respondent.   Mr A met with the complainant to discuss these problems on 2nd December and followed up that meeting with a letter dated 5th December. There was no improvement and therefore the respondent gave him a week’s notice at the beginning of January. The respondent paid him one week’s pay in lieu of notice.

Preliminary issue.

Section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 states that a rights commissioner shall not investigate a trade dispute—

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Section 36.—(1) of the Industrial Relations Act 1990 states; An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.

By letter dated 5th July 2017 the respondent was notified of the requirements as follows;

Please indicate whether you wish to object to an investigation by an Adjudication Officer by completing the enclosed form and returning it to Information and Customer Services, Workplace Relations Commission, O’Brien Road, Carlow within 21 days of the date of this letter.

Failure to reply to this enquiry form within the period specified will be regarded as consent to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969, and the dispute will proceed for a hearing on the earliest date.

Therefore the respondent was informed of both the deadline and method of communication to be used if objecting. The respondent forwarded an objection to a different web-site address – which could not reasonably have been expected to be used by the particular office of the WRC specified - on the evening of 26th July 2017. I therefore find that he did not object within the required time period and that the matters referred under the Industrial relations acts may be heard by me.

Substantive issues

At the hearing the complainant confirmed that he was not pursuing the complaints referred under both section 77 of the Employment Equality Act, 1998, and under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

Payment of Wages Act, 1991

No evidence was presented at the hearing of any unlawful deductions of wages. At the hearing the complainant withdrew the complaint in relation to payslips.

Minimum wage;

Section 8.—(1) of The National Minimum Wage Act, 2000 states;

For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9 , “working hours”, in relation to an employee in a pay reference period, means—

(a) the hours (including a part of an hour) of work of the employee as determined in accordance with—  

(i) his or her contract of employment,

(ii) any collective agreement that relates to the employee,    

(iii) any Registered Employment Agreement that relates to the employee,  

(iv) any Employment Regulation Order that relates to the employee,  

(v) any statement provided by the employee's employer to the employee in accordance with section 3 (1) of the Terms of Employment (Information) Act, 1994 ,  

(vi) any notification by the employee's employer to the employee under section 17 of the Organisation of Working Time Act, 1997    

(vii) section 18 of the Organisation of Working Time Act, 1997 , or  

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

or

(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,  

whichever, in any case, is the greater number of hours of work.  

(2) “Working hours” under this section shall include—  

(a) overtime,  

(b) time spent travelling on official business, and  

(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

Certain employees are required to provide record of working hours to their employer.

9.—(1) Where an employee's working hours are assessed as provided in section 8 (1)(b) but are not normally controlled by his or her employer, the following shall apply:

(a) the employee shall keep a written record of his or her working hours during every day he or she is employed during a pay reference period;  

(b) the employee shall give the record to his or her employer as soon as reasonably practicable after the end of the pay reference period;

Section 24 of the Act states as follows;

   (2) A dispute cannot be referred to or dealt with by a rights commissioner—  

(a) unless the employee—  

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or  

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

The complainant has confirmed that he has not complied with these two preconditions for a hearing to take place and therefore I find that I cannot hear the complaint.

Organisation of Working Time Act, 1997

Section 15.—(1) of the Act deals with the maximum permitted weekly hours and states;

An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months,

The complainant in evidence has stated that the period during which he worked in excess of the maximum was for 11 weeks and 3 days. I find therefore, that the maximum permitted weekly hours period has not been exceeded.

In relation to the question of breaks there is no evidence that the complainant was prevented from taking these.

Terms of Employment

Section 5.—(1) of the Terms of Employment (Information Act) 1994 states;

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—  

(a) 1 month after the change takes effect

The respondent furnished the complainant with a revised contract which the complainant signed indicating acceptance of the terms. The position in the original contract was described as Account Manager/ Recruitment Consultant and as Recruitment Consultant/Resourcer in the second. Neither contract detailed explicit duties other than to state You will be required to be flexible in this position and must be prepared to undertake such other work as may be assigned to you by the company from time to time.

In providing the complainant with the revised contract in writing the respondent has complied with the requirements of Section 5 of the Act.

Notice

The complainant received one week’s pay in lieu of notice and argues that his contract only provided for payment in lieu of notice if agreed and that he did not agree. There is no statutory requirement for payment in lieu of notice to be agreed. There are two separate sections in the contract dealing with this issue, one in Section A.4 in which it states both parties are free to waive their right to notice and/or accept pay in lieu of notice, if agreed between them. The second section B.4.(b) dealing specifically with termination during the probationary period states You will receive one week’s notice. B.4. (e) states The employer reserves the right to make payment in lieu of notice at its sole discretion.  While there are contradictions within the contract it is clear that the respondent was never obliged to pay more than the one week’s pay in relation to notice and he did pay this amount. Whether or not the complainant should have been allowed work this period is unclear, however, he was at no financial loss and therefore no compensation is warranted.

Industrial Relations Act

The complainant alleges that he was subject to bullying and harassment as the respondent called him by mobile early in the morning to relating to how many sites he had visited and exerted constant pressure on him. Later, when he was office based he was subjected to constant supervision including staring. The complainant also refutes the allegation of incompetency and states that no, or inadequate training was provided on the IT system.

Evidence was provided at the hearing by the two witnesses to the effect that they made many efforts to train the complainant on the system including the preparation of a manual for his use.

In relation to the requirement for a review, the respondent met with the complainant in early December and detailed the areas in need of improvement. Witness 2 confirmed that this was followed up in writing to the complainant.

The complainant states that the disciplinary process as outlined in his contract was not applied. Again, as with other issues there are different procedures detailed in the contract in respect of ‘permanent’ employees and those on probation. For those on probation Section B.3. (c) states an abridged version of disciplinary procedure may be used. The details of this ‘abridged version’ have not been committed to writing and the respondent was unable to provide details. Any such abridged version should have been consistent with the rules of natural justice. In this instance, I do not believe that the process was adequate. From 2th December – the first occasion when there was a formal meeting regarding perceived deficiencies in performance – until the 4th January, the date of notice, allowing for the closure of the office at Christmas, there was only a short period of working days, in which an improvement could have been made. The decision to dismiss had already been taken by the time the next meeting took place and therefore that meeting could not be claimed to be in conformity with the principles of natural justice. It is clear that the perceived underperformance of the complainant was in part at least due to the mismatch of expectations in relation to the role. The responsibility for this must lie with the respondent, particularly given the nature of the business in which he is involved. The pressure exerted to attend sites, particularly as the respondent refused to consider time travelling from Carrick on Shannon to Dublin as part of the working day, could reasonably be construed as harassment.   I believe that the complainant should be compensated for this treatment.

I recommend that the respondent pay the complainant €2,000 as full and final compensation for the unfairness of its treatment to her, which sum, not being an award of wages is not subject to tax.

Dismissed during probation with inadequate procedures