Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00017237-002

02/02/2018

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

CA-00017237-003

02/02/2018

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

CA-00017237-004

02/02/2018

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

CA-00017237-005

02/02/2018

CA 00017237 – 002 Section 27 Organisation of Working Time Act ,1997

Complainant’s evidence

The complainant states that he was not paid for his public holidays in relation to the 25th and 26th of December 2017 and the 1st of January 2018. He is normally paid €80 per day. That money is lodged into his bank account. He was not paid any additional monies and that is how he knows he was not paid for those public holidays.

Respondent’s evidence

An issue arose with the complainant’s work on the 22nd of December. The complainant requested the day off, as he had a hospital appointment. The respondent informed the claimant that it was the last delivery date before Christmas and there was no way he could take the day off. It would put them under far too much pressure. The complainant said he would not be in.   The respondent sent somebody around to his home to collect the van keys on the night of the 21st. He told him that he was due back to work on the 27th but the complainant told him that he valued his time off over Christmas and like to have a few beers so he wouldn't be back on the 27th. He did not come in to work on the 22nd. In or around lunchtime on the 22nd the complainant was seen in a local shopping centre in Dundalk by an employee of the respondent. The respondent didn't contact the complainant when he didn't show up for work on the 27th based on that conversation I had with their employee on the 21st.

On the 31st December, the complainant stated that he would not be coming back to work until he got his contract of employment. The respondent told him that he had it prepared over the Christmas break and had it for him. The complainant hadn’t come into work on the 27th,28th or 29th so he didn’t get to give it to him.   The complainant told the respondent on the 31st that he would not be returning to work.

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Findings and conclusions CA 00017237 – 002

Based on the evidence of both parties I'm satisfied that the complainant formed the intention to terminate his own contract of employment on the 22nd of December. It was clear from his evidence that he never had any intention of returning to work and wanted to go back onto the dole. He knew that he was due to work on the 27th and he didn't need any confirmation from the respondent in relation to that if he had intended to work he would have showed up on the 27th.

On that basis I find that the complainant’s complaint cannot succeed as he did not consider himself an employee for the period in question.

The claim fails.

CA 00017237 – 003 Section 6 Payment of Wages, Act, 1991

Complainant’s evidence

Thecomplainant has brought a claim pursuant to section 6 of the Payment of Wages Act, 1991 stating that he wasn't paid for the 27th 28th and 29th of December 2017. The complainant accepts that he did not work those dates but states that he was due to work and was available to work. He also stated that somebody else was employed to do his work. The complainant is normally paid €80 .00 per day and states on that basis he's entitled to be paid €240 for the above.

Respondent’s evidence

The respondents stated that the complainant was due to work the 27th 28th and 29th of December. However, on the evening of the 21st of December he told an employee, who was sent by the respondent to the complainant’s house, that he would not be working those dates as he valued his time off at Christmas and liked to have a few beers. The respondent did not send the complainant a text or try to contact him on the 27th due to the fact that they had been put on notice that he would not be working those days. He did get somebody in to cover for the complainant during that period.

Conclusions and findings

The complainant states that he was due to work and was available for work on the 27th to the 29th of December. The respondent also states that the complainant was due to work from the 27th to the 29th of December. I find the respondents evidence credible when it states that it did not contact the complainant on the 27th when he didn't turn up for work because they had been put on notice on the 21st, that he wouldn't be coming into work on the 27th. The complainant did not need confirmation from the respondent whether or not he was due to work on the 27th. If it was his intention to work, he could have just shown up as he always did.

On that basis I find that omplaint CA 17237 – 003 fails

00017237 – 004 Section 7 Terms of Employment Information Act, 1994

Complainant’s evidence

The complainant states that he did not receive his written terms of employment within the first two months of the date of commencement of his employment.

The complainant states that he's commenced his employment with the respondent on the 1st of the November, 2017 and his employment ended on the 31st December,2017 following a text to the respondent.

Respondent’s evidence

The respondent states that the complainant actually commenced employment on the 31st of October, 2017 and ended on 31st of December 2017. The complainant was placed on a 3 month probationary period however he terminated his own contract of employment well before the three months had expired.

The respondent over the Christmas period had his solicitors draft a contract of employment for the complainant however he left his employment prior to him being able to give it to him. The respondent received a text from the complainant, on the 31st of December stating that he wouldn't be coming back to work unless he received the contract of employment and payslips. The respondent said that he had the contract of employment ready for him and that he would see him back at work on Tuesday the 2nd of January. The complainant then replied by stating 'don't worry about your contract I am signing back on the dole". Therefore, he is entitled to succeed under section 7 of the terms of employment Information

Conclusions and findings

I am satisfied based on the financial information that was given during the hearing that the complainant commenced employment on the 31st of October 2017. I am also satisfied based on the evidence suggest that the complainant formed the intention not to return to work on the 22nd of December 2017 and text his notice of termination on the 31st. The respondent received a text from the complainant on the 31st of December stating that it wouldn't be coming back to work unless he received the contract of employment and payslips. The respondent said that he had the contract of employment ready for him and that he would see him back at work on Tuesday the 2nd of January. It was the respondent’s intention to give the complainant his contract on the 27th however he was unable to do so as the complainant did not come in. The complainant never returned, having text the respondent on the 31st 'don't worry about your contract I am signing back on the dole".

In all of the circumstances the complaint CA 00017237 -004 fails.

00017237 -005 Section 27 Organisation of Working Time Act, 1997

Complainant’s evidence

The complainant states that over the period of time he worked 31st October – 31st December, 2017 he was entitled to 4 days holidays. He worked 10 hours per day five days a week for two months.

Respondent’s evidence.

If the complainant is entitled to holiday pay then he will pay it to him. There is no issue with that.

Conclusions and Findings.

Section 19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to:

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment)

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

CA 00017237-005 The complainant succeeds. I am satisfied that the complainant is entitled to four days holiday pay amounting to € 320.00