Representatives

Miles Gilvarry Gilvarry & Associates Solicitors

Terry MacNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008626-001

28/11/2016

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

CA-00008626-002

28/11/2016

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

CA-00008626-003

28/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008626-004

28/11/2016

It was submitted by way of background that the claimant commenced employment with employer A on a temporary basis in May 2008 and was let go in February 2009.He had left permanent employment to take up the post and had been guaranteed 12 months employment but was let go prematurely owing to the financial crisis.He protested and was approached in his home   2 months later by members of management of respondent A who offered him the co-ordinator’s position.He was advised that he could not be paid by employer A for the time being but would be paid by the instant respondent , respondent B pending the opening up of new recruitment for employer A.It was submitted that after several years of employment, the claimant resigned owing to unreasonable behaviour by his employer who left him in a limbo situation , unsure of his future and his employment status.

It was submitted that the claimant was unreasonably treated by respondent B “ in that it took a claim to the WRC, a full hearing and further submissions before it was found that he was an employee of respondent B”.It was submitted that a reasonable employer would issue its employees with a contract and terms and conditions of employment , deal with HR, arrange holidays , pay a rate comparable to other employees in similar jobs and allow him apply for any jobs with respondent B.It was argued that the respondent met none of the foregoing obligations.It was submitted that he was never treated as an employee of respondent B and had been advised that he was an employee of employer A.It was contended that the claimant became frustrated when his status with employer A was not regularised .He was not afforded an opportunity to apply for vacancies with employer A and observed others obtaining permanent employment while he was left as a long term temporary employee without increments or pension contributions.He was not dealt with by respondent B’s HR dept. and his HR and disciplinary procedures were dealt with by employer A.It was submitted that his treatment by the employer was such that he was left with no option but to resign and seek employment elsewhere.It was confirmed that the claimant had obtained alternative employment but incurred a loss pf €5,000 per annum.

It was submitted that this was an egregious case under the Terms of Employment (Information) Act 1994 – it was contended that the claimant was never issued with terms and conditions of employment and the identity of the employer was effectively obscured.

It was advanced that the claimant was paid at a lesser rate than other employees of respondent B who were also employed on the shuttle – he had not pursued the matter as he understood they were engaged by a different employer .The claimant was seeking payment of €20 per hour for a period of 12 months prior to the making of the claim.

It was submitted that employer A and respondent B colluded to obscure the true identity of the employer.

It was submitted that there was no record of any paper trail I relation to personnel matters concerning the claimant .

It was argued that the claimant was paid significantly less than his 2 colleagues assigned to the shuttle and employed by employer A.

The claimant was adamant that he never received the draft contract which contained numerous XXXXs.It was submitted that no copy of a signed or unsigned contract had been produced.

The respondent’s representative gave a background to the company business of providing contract logistics services to clients throughout Ireland.It was submitted that the claimant’s role was an integral part of the fulfilment by the respondent of a contract for service that respondent B supplied to respondent A to support employer A’s training initiatives around Ireland.The claimant’s role as shuttle co-ordinator was created at the request of employer A – as the shuttle was remotely based as were the 2 drivers and the claimant , the day to day interaction tended to be with employer A” so as to fulfil the contract.This is not untypical in the logistics industry”.A detailed description of the claimant’s routine and engagement with the respondent (B) and employer A was presented.The respondent submitted into evidence details of text messages exchanged between the claimant and the payroll administrator with the respondent .It was submitted that the claimant did not at any stage query his employment status with the respondent.

On the 13th.June 2013 , the claimant unexpectedly informed employer A of his resignation – this was communicated to the respondent .The respondent had no prior notice of the resignation , nothing of contention had been raised and no grievance had been pursued by the claimant.

It was submitted that the claimant had failed to meet the contractual test and/or the reasonableness test to sustain a complaint of constructive dismissal.It was submitted that the claimant had not provided any evidence of repudiation of the contract of employment by the claimant and that the respondent had acted reasonably at all times.The provisions of Conway v Ulster Bank UD 474/1981 and McCormack v Dunnes Stores UD 1421/2008 were invoked in support of these contentions.It was submitted that no grievance was ever raised by the claimant in relation to his pay or terms or conditions of employment and that any grievances the claimant had seemingly related to employer A.It was asserted that it was clear from the complaint form that the claimant had voluntarily resigned his employment without trying to resolve any issues – which it was argued is fatal to a complaint of constructive dismissal.The respondent had established formal and informal procedures which were not utilised.The claimant had failed to allow the respondent address any of his concerns and UD 321/2009 (Murphy v Chartbusters) and UD 1163/2007 were invoked in support of this argument.It was submitted that no dismissal had occurred within the meaning of subsection 1 of the Act.

The respondent was at a loss to understand the claim being made under the Payment of Wages Act as it was submitted there was no under payment or non payment of wages – payslips for the claimant’s last 6 months in employment were submitted into evidence.

It was submitted that the reckonable period for the purposes of the Act was the 29th.May – 28th.Nov. 2016 and there was no evidence of non payment between the 29th.May and the last day of employment which was the 17th.June2016.It was submitted that it was clear from the payslips that the claimant was paid and accepted the same rate of pay over the period without complaint.

It was submitted that the claimant was furnished with a contract of employment and job description in April 2010 .A copy of the job description and draft contract of employment were submitted in evidence .It was submitted that while the respondent was not in possession of a signed contract of employment , the claimant clearly worked to his job description and at no stage requested a copy of these documents.It was contended that there was no detriment to the claimant from any omission therein.The claimant had not sought a copy of the documents until 6 months after his resignation and a copy would have been provided if the claimant had sought same.It was argued that if a breach were to be found , no loss or damage has been caused to the claimant and the provisions of TE248/2009 were invoked in this regard.

The respondent denied the charges of obfuscation by the claimant’s representative and submitted that from the outset the claimant has named the incorrect address for the respondent.It was submitted that it was abundantly clear from the payroll texts that the claimant knew of the relationship with the respondent.

It was submitted that the claimant was furnished with the draft contract and job description approximately 6 months after commencement.