ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00011099

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/06/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

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

Background:

The Complainant is a brother of the Respondent’s delivery company. He commenced his employment as a delivery driver in April 2007 and submitted that he was unfairly dismissed on 8th April 2017, and that he was not paid for his notice period.

In addition, the Complainant has raised a number of complaints under the Organisation of Working Time Act; that he did not receive his terms of employment in writing; and that he was not notified in writing of any changes to his terms and conditions of employment. The Complaint submitted that his pay was made up of €429 per week plus €100 cash per week and a €100 cheque per week, amounting to €727.94 per week. The payments as submitted by the Respondent indicate a weekly pay of €683.98.

Since the alleged unfair dismissal, the Complainant has found alternative employment on 14th May 2018 at a rate of €627 per week.

Summary of Complainant’s Case:

CA-00014743-001 Complaint under section 27 of the Organisation of Working Time Act, 1997 Sunday Premium                                                                                                                                                               

The Complainant submitted that he had worked occasional Sundays and in 2015 he was required to work three Sundays but that he did not receive a Sunday premium.

CA-00014743-002 Complaint under section 27 of the Organisation of Working Time Act, 1997 Weekly Working Hours                                                                                                                                                   

The Complainant submitted that he was required to work in excess of 48 hours per week. The Complainant also submitted that he had requested a record of the hours worked but these were not provided to him.

The Complainant maintained that he was required to work every Monday from 3:15 am to 1:30pm; Wednesday from 5am to 2pm, and at times to 18:00 when he had to do an extra run; Thursday and Friday from 5am until 4 pm; and Saturday from 4:30 am to 4pm. His total working hours per week were 54 hours each week, and sometimes he would have worked 60 hours per week.

The Complainant submitted that he would be told of his deliveries by random texts and when he raised any concerns he was told by the Respondent that he could be used like that. He also submitted that every other three months he would be required to work in excess of 48 hours per week.

CA-00014743-003 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements

The Complainant submitted that he did not receive his annual leave entitlements. He advised he had one holiday in 2016 and he would have worked for the remainder of his leave entitlement where he have been paid in lieu of taking his annual leave.

CA-00014743-004 Complaint under section 27 of the Organisation of Working Time Act, 1997 Public Holiday Entitlements                                                                                                                                    

The Complainant maintained he was not compensated for working public holidays. For 2016 he had worked six of the nine public holidays. (During 2017 it transpired he had not worked any public holiday).

CA-00014743-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Working Hours                                                                                                                                

The Complainant submitted that he did not receive adequate notice of changes to his working hours in that he could receive a text message the evening before to require him to start earlier, or have a longer delivery run which would have impacted on his working hours for the following day.

The Complainant maintained that during 2016 this occurred on from 15th to 20th November, 23rd November, and 14th December, and he provided further examples of text messages he received in 2016 and 2017 regarding notification of changes to his start and finish times within 24 hours of being required to work these hours.

CA-00014743-006 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements on Cessation of Employment                                                                         

The Complainant’s last day at work was 8th April 2017. He did not return to work after an alleged incident where the Complainant submitted he was told not to come to work the following day. He was paid until 4th May 2017. The Complainant has submitted he was unfairly dismissed that day without notice, and that he never gave in his notice. He was seeking his annual leave entitlements for 2017.

CA-00014743-007 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Start and Finish Times                                                                                                                             

This complaint is similar to the complaint made under 005 above and has been heard under that complaint.

CA-00014743-008 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Additional Hours of Work                                                               

This complaint is similar to the complaint made under 005 above and has been heard under that complaint.

CA-00014743-009 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that he never received any written notice of his Terms of Employment.

CA-00014743-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Changes in Terms and Conditions of Employment

The Complainant maintained that changes were made to his conditions of employment regarding his working hours and delivery runs but he was never consulted of such changes, nor did he receive notification of such changes in writing.                                                                                                                    

CA-00014743-011 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that on 8th April 2017 he was manoeuvring his lorry and another haulier came out screaming at him. There was an altercation between them where the other haulier assaulted him knocking his hat off, and where they shook hands after the event. The Complainant said he was then was contacted by a named party and asked for his paper work regarding stock levels. The Complainant maintained that he had been told by another employee who had quit not to be providing this person with his paperwork as he would be bombarded by him. The Complainant indicated to the person that he did not need the paperwork relating to stock levels at that time as it was after 4pm on a Saturday, and he asked the person to stop contacting him. He advised the person that he would give him the sheets, but not at that time.

The Complainant then went home and he received a call from the Respondent, who is also his brother.   They discussed what had happened earlier that day. The Complainant maintains that the Respondent then told him not to bother to turn up for work. The Complainant was surprised with this as he had always turned up in time for work.

The Complainant did not hear again from the Respondent until there was contact from him and where the Complainant was asked if he was around on 4th May 2017 to meet up. The Complainant advised that he was at his doctor when this contact was made, and he did not follow up. He advised that his P45 was issued that day.

On that basis the Complainant maintained he had been unfairly dismissed. The Complainant submitted that he had made two requests and one had delivered request to the Respondent asking for reasons for his dismissal and he had not received a response.

CA-00014743-012 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that on 4th May 2017 he was dismissed from his employment and he did not receive his statutory notice period.                                                                                                               

Summary of Respondent’s Case:

CA-00014743-001 Complaint under section 27 of the Organisation of Working Time Act, 1997 Sunday Premium                                                                                                                                                               

The Respondent submitted that the Complainant was not required to work Sundays. If the Complainant worked Sundays it was only over the Christmas period or to do deliveries when the owner was on holidays. There was no requirement for the Complainant to work Sundays during 2016 or 2017.

CA-00014743-002 Complaint under section 27 of the Organisation of Working Time Act, 1997 Weekly Working Hours                                                                                                                                                   

The Respondent denied that the Complainant worked in excess of the weekly working hours. It denied that the Complainant would have to start at 3am on Mondays. It maintained that the Complainant would have been asked to take breaks and that the hours alleged by the Complainant would have contained his rest breaks. The Respondent acknowledged that whilst the job could change it did not change every three months as alleged by the Complainant.

The Respondent maintained that the Complainant’s total working hours per week were 41 ½ hours each week. The Responded did not provide any working time records but provided weekly handwritten notes of payments made to the Complainant.

CA-00014743-003 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements                                                                                                                                    

The Respondent denied that the Complainant was not provided with his annual leave entitlements. The Respondent submitted annual leave records which it maintained demonstrated the Complainant received 15 days paid annual leave in the 2015 calendar year, and worked a winter week for an extra €750 in lieu of his annul leave; that he received 14 days paid annual in the 2015 calendar year , and worked a winter week for an extra €600 in lieu of his annul leave; and in 2017 he received 6 days annual leave prior to his termination on 4th May 2017.

CA-00014743-004 Complaint under section 27 of the Organisation of Working Time Act, 1997 Public Holiday Entitlements                                                                                                                                    

The Respondent failed to provide any record of the public holidays granted or where the Complainant would have been paid compensation for working on public holidays.

CA-00014743-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Working Hours                                                                                                                                

The Respondent denied that the Complainant was not provided with reasonable notice if there was to be a change in working hours. The Respondent submitted that the Complainant worked a regular 5 day week and if there were changes to the start or finish time it was not by a significant amount. In addition, it advised that if there was an early start the Complainant would finish early. The Respondent also argued that the Complainant decided his own start time and where it would only take 15 minutes to load the delivery and if the Complainant arrived much earlier than was required that was his decision.

CA-00014743-006 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements on Cessation of Employment                                                                         

The Respondent submitted that there was an altercation with the Complainant and another staff member on 8th April 2017 and following a conversation between the Respondent and the Complainant, the Complainant was advised not to attend work the following day. The Respondent advised that the Complainant was paid for four weeks up to 4th May 2017 but he never turned up for work from 8th April 2017. When the Respondent attempted to address matters on 4th May 2018 the Complainant’s job was terminated. The Respondent did not provide evidence that the complaint was compensated for loss of his untaken annual leave.

CA-00014743-007 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Start and Finish Times                                                                                                                             

This complaint is similar to the complaint made under 005 above and has been heard under that complaint.

CA-00014743-008 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Additional Hours of Work                                                               

This complaint is similar to the complaint made under 005 above and has been heard under that complaint.

CA-00014743-009 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent did not provide evidence that the Complainant was provided with his Terms of Employment in writing.

CA-00014743-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Changes in Terms and Conditions of Employment

The Respondent submitted that there was no change in the terms of employment. Changes in delivery runs and times would vary, but not significantly. It maintained this was an integral part of the Complainant’ s work duties.

CA-00014743-011 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent advised that on 8th April 2018 there had been an altercation between the Complainant, who is his brother, and another haulier over access to a loading bay. Following this altercation, the Complainant then went to another area and he was asked by an employee of the Respondent’s client to provide details of stock levels in various stores he had delivered to. The Respondent submitted that the Complainant was particularly aggressive to this employee telling him not to contact the Complainant in the future.

As these matters were brought to the Respondent’s attention the Respondent phoned the Complainant to discuss what had happened. The Respondent maintained that the Complainant was particularly aggressive, so he decided to tell the Complainant not to come to work on the following Monday to allow the Complainant cool down. The Respondent was aware the Complainant was also off on the Tuesday, so he expected the Complainant to return to work on the Wednesday. However, the Complainant did not return to work and the Respondent did not hear from the Complainant over the following four weeks.

The Respondent also maintained that he had tried to contact the Complainant by phone on both the company phone and the Complainant’s private phone, but he did not get a response. The Respondent therefore reached the decision on 4th May 2017 that the Complainant had left his employment and was not returning to work so he sent him his P45. The Respondent maintained that the first he had heard from the Complainant regarding the matter was when the complaint was forwarded by the WRC.

In his evidence the Respondent advised the Complainant had a history of aggressive behaviour and there had been disputes before between the Complainant and other staff members, but these had been resolved. It was for this reason the Respondent had told the Complainant not to come in the following Monday and where the intention was to allow his brother the opportunity to cool down. The Respondent denied it was a dismissal.

The Respondent submitted that the surrounding circumstances should be taken into account, that the Respondent had paid the Complainant over the four weeks, and had tried to contact the Complainant but the calls were not returned. The Respondent advised that it could not afford to keep the Complainant on pay if he was not turning up for work.

Referring to jurisprudence the Respondent quoted Tanner v DT Kean, and where the words used by the Respondent in the case within, namely that the Complainant was not to bother turning up for work referred only to the following workday. Set in the circumstances, and where the Complainant was paid for a further four weeks, the Respondent advised that those words could not be constituted as a dismissal and were not intended to bring the contract of employment to an end. Referring to the Tanner v DT Kean case, the Respondent maintained that under the circumstances a reasonable employee could not have understood that they were dismissed. The Respondent argued that the actions after the event would demonstrate that the Complainant had not in fact been dismissed. Referring also to Martin v Yeomen Aggregates Ltd, the Respondent maintained that from 8th April 2017 the Complainant had incorrectly closed his mind the fact that he was not dismissed whereas a reasonable assessment of what occurred would not have drawn that conclusion.

CA-00014743-012 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent acknowledged that on 4th May 2017 it terminated the Complainant’s employment as the Complainant had not returned to work during the previous four weeks, and when it contacted the Complainant on 4th May 2017 he did not return the call. On that basis the Respondent maintained the Complainant had resigned without giving any notice.

Findings and Conclusions:

CA-00014743-001 Complaint under section 27 of the Organisation of Working Time Act, 1997 Sunday Premium                                                                                                                                                               

Having considered the evidence, I do not find the Complainant was required to work on Sundays. No evidence was adduced that the Complainant had to work on Sunday’s during 2016 or 2017. I do not conclude the Respondent was in breach of its obligations under Section 14 of the Act. I therefore do not find the complaint is well founded.

CA-00014743-002 Complaint under section 27 of the Organisation of Working Time Act, 1997 Weekly Working Hours                                                                                                                                                   

Under Section 15(1)(a) of the Organisation of Working Time Act, 1997, 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.

Having reviewed the evidence submitted I find there is a dispute between what hours the Complainant submitted he worked and what the Respondent maintained were the hours worked.

No records of working time were provided by the Respondent

Under Section 25 (1) of the Act An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as maybe prescribed, as will show whether the provisions of this are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making. Section 25 (4)further states Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this in relation to an employee, the onus of proving, in proceedings before a [Adjudicator] or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

As the Respondent failed to provide records of the hours worked by the Complainant I am compelled to find in the Complainant’s favour. I therefore find the Complainant was required to work hours in excess of section 15 of the Act. As such I find the complaint is well founded.

CA-00014743-003 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements                                                                                                                                    

Section 19(1)(a) of the Organisation of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours.

Based on the evidence provided it appears that the Complainant did not receive his full annual leave entitlement as follows:

• 2015- 5 days
• 2016- 6 days
• 2017- 1 day.   
  
  In addition, it is noted the Complainant was paid in lieu of annual leave for 5 days in 2015 and 2016.
  
  In accordance with the Sixth Schedule of the Organisation of Working Time Act (COUNCIL DIRECTIVE 93/104/EC of 23 November 1993), Article 6.2 of the Directive states the minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

I therefore find that the Complainant did not receive his full annual leave entitlements in 2015 and 2016, and that the Respondent was in breach of Article 6 of Council Directive 93/104/EC of 23 November 1993 by paying the Complainant in lieu of granting him his minimum period of annual leave during 2015 and 2016.

CA-00014743-004 Complaint under section 27 of the Organisation of Working Time Act, 1997 Public Holiday Entitlements                                                                                                                                    

Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays. I find that the Complainant is well founded and the Complainant was entitled to six public holidays during 2016.

CA-00014743-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Working Hours                                                                                                                                

Section 17 of the Organisation of Working Time Act, 1997 requires:

• If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

• If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

• If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second mentioned day, in which he or she has been required to do work for the employer.

• A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

• It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.

Having considered the evidence, and in circumstances where the Complainant had not been provided with a written contract of employment and where his work was not covered under an employment regulation order, I find that the Complainant would have been required to work earlier start times, or to work longer hours. The Complainant submitted sample text messages where he would have received notification about his delivery runs the evening before or during the day and that he was not notified of such changes in advance of 24 hours of the requirement. Following a review of the text messages it was not always clear what the basis of the messages were for, but nonetheless I am satisfied they demonstrate the Complainant would have received notification of changes to his work hours within 24 hours of such changes.

I am satisfied that the nature of work would have required changes, perhaps frequently, in the Complainant’s daily runs, and this would be an inherent part of his work.   In accordance with S17(4) the Act does not prejudice the Respondent from requiring the Complainant to start or finish work or, as the case may be, to work the additional hours at times other than those specified in circumstances, which could not reasonably have been foreseen. Some of the changes appear to have been unforeseen, whereas other seem to be more routine and ought to have been known in advance.

As this matter is disputed by the parties it could be resolved by a review of the Complainant’s working records. However, these records were not provided by the Respondent, despite the Complainant seeking them before the hearing. As already mentioned, Under Section 25 (1) of the Act An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as maybe prescribed, as will show whether the provisions of this are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making. Section 25 (4)further states Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this in relation to an employee, the onus of proving, in proceedings before a [Adjudicator] or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

As the Respondent failed to provide records of the hours worked by the Complainant I am compelled to find in the Complainant’s favour and conclude that he was not properly notified of changes to his start and finish time. As such I find the complaint is well founded.

CA-00014743-006 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements on Cessation of Employment                                                                         

Section 23(1)(a) of the Organisation of Working Time Act, 1997 states Where—(i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

In circumstances where the last paid day for the Complainant was 4th May 2017 I find that he had accrued 7 days annual leave during 2017. The leave records indicate the Complainant had taken six days annual leave for 2017. I therefore find the Complainant was entitled to one days annual leave at the time of his cessation of employment.

CA-00014743-007 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Start and Finish Times                                                                                                                             

This complaint is similar to the complaint made under 005 above and as I have already made findings under this complaint I do not make further findings.

CA-00014743-008 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Additional Hours of Work                                                               

This complaint is similar to the complaint made under 005 above and as I have already made findings under this complaint I do not make further findings.

CA-00014743-009 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Based on the evidence provided I am satisfied that the Respondent has not met its obligations under section 3 of the Act in that it failed to provide a detailed terms and conditions of employment to the complainant on his appointment.

Based on the evidence provided I am satisfied that the Respondent has failed to meet its obligations under the Act and I therefore find the complaint is well founded.

CA-00014743-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Changes in Terms and Conditions of Employment

Section 5(1) of the Terms of Employment (Information) Act, 1994 requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…,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 1 month after the change takes effect.

Having considered the evidence I do not find that any significant change was made or occurred in the particulars of employment for the Complainant. I therefore do not find this complaint is well founded.

CA-00014743-011 Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

• the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

• the conduct of the employee,

• the redundancy of the employee, and

• the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

Having reviewed the evidence I find that two events occurred on 8th April 2017 where the Complainant’s behaviour, as reported to the Respondent, was of concern. The Respondent contacted the Complainant to discuss what had happened and this led to a heated discussion where the Respondent did in fact advise the Complainant not to come to work. However, this conversation must also be set in the context of the surrounding circumstances.

These circumstances would indicate that the Complainant had a history of challenging behaviour and where such matters were previously dealt with informally. In addition, the relationship between the two parties where they are brothers must also be considered, as must other evidence relating to their relationship. (This information is not disclosed in this decision, but the parties will be aware of other matters between them that was discussed during the hearing and which would not typically feature in an employment relationship). In addition, the Respondent paid the Complainant from 8th April 2017 to 4th May 2018, despite the fact that he did not attend work over this period. Based on all this evidence I find that the Complainant was not dismissed on 8th April 2017, and any reasonable employee could not have drawn the conclusion that they had been dismissed at this point. It is somewhat remarkable that neither party progressed matters with each other, and I conclude a key contributory factor to this was that they were brothers.

I most now consider the manner of the eventual termination of the contract which occurred on 4th May 2017. The evidence provided indicates that the Respondent contacted the Complainant on 4th May 2017 seeking an update. The Complainant did not return this call, stating he was at his doctor at the time. As a consequence of getting no response from the Complainant, the Respondent concluded the Complainant had resigned and issued the P45 after that point. There was no prior notice provided to the Complainant about this decision being made, nor was there any reason provided to the Complainant about why the contract was being terminated.

I also find that the Complainant contributed to this situation in that he did not turn up to work for four weeks despite being paid over this time. He also did not return a call from the Respondent on 4th May 2017. Based on the fact he had been paid, and that the Respondent had attempted to contact him, the Complainant could not have reasonably drawn the conclusion that he had been dismissed up to this point. A reasonable employee would have contacted their employer at that point in time, if not before. But that did not happen.

The fact remains however that the Respondent decided to terminate the Complainant’s contract of employment on 4th May 2017 without formally contacting the Complainant to seek a review of his status, or advising him that his continued absence would amount to his dismissal. The omission of the Respondent to observe such a process renders the dismissal to have been unfair.

I therefore find the Complainant was unfairly dismissed on 4th May 2017 as he was not afforded a reasonable process before the Respondent decided to terminate the contract of employment.

CA-00014743-012 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 4 of the Minimum Notice & Terms of Employment Act, 1973 requires that an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provision set put in S4(2)(d)- if the employee has been in the continuous service of his employer for (d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks.

As I have concluded the Respondent terminated the contract of employment and did not provide the Complainant with six week notice, I find the Complainant is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00014743-001 Complaint under section 27 of the Organisation of Working Time Act, 1997 Sunday Premium                                                                                                                                                               

Based on the evidence provided I have decided this complaint is not well founded.

CA-00014743-002 Complaint under section 27 of the Organisation of Working Time Act, 1997 Weekly Working Hours                                                                                                                                                   

Based on the evidence provided I have decided this complaint is well founded. In accordance with Section 27 (3) (c) of the Act, as the proper recording of working hours is an important requirement under health and safety obligations, and particularly for this involved in driving duties, I require the employer to pay to the employee compensation of €5,470 (subject to any lawful deductions) which amounts to two months earnings as being just and equitable having regard to all of the circumstances.

CA-00014743-003 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements                                                                                                                                    

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act.

As I have found the Complainant did not receive 11 days annual leave entitlements over the period I require the Respondent to pay the Complainant arrears of €1.328.77.

I deal with the Complainant’s annual leave entitlement for 2017 under complaint 006 below.

CA-00014743-004 Complaint under section 27 of the Organisation of Working Time Act, 1997 Public Holiday Entitlements                                                                                                                                    

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not receive his entitlements for 6 public holidays, I decide the complaint is well founded and I require the employer to pay the Complainant arrears of €820.78.for his public holiday entitlements.

CA-00014743-005 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Working Hours                                                                                                                                

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 17 of that Act. As I have found that the Complainant was not properly notified of changes in his start and finish I require the Respondent to pay the Complainant compensation of two weeks wages amounting to €1,368 (subject to any lawful deductions).

CA-00014743-006 Complaint under section 27 of the Organisation of Working Time Act, 1997 Annual Leave Entitlements on Cessation of Employment                                                                         

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 23 of that Act.

As I have found the Complainant had accrued seven days annual leave for 2017, but he had only taken 6 days leave, the Respondent to pay the Complainant compensation of one day pay amounting to €120.80 (subject to any lawful deductions).

CA-00014743-007 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Start and Finish Times                                                                                                                             

This complaint is similar to the complaint made under 005 above and a decision has been made under 005. I therefore decide it is not in order for me to make a further decision in relation to this complaint.

CA-00014743-008 Complaint under section 27 of the Organisation of Working Time Act, 1997 Notification of Additional Hours of Work                                                               

This complaint is similar to the complaint made under 005 above and a decision has been made under 005. I therefore decide it is not in order for me to make a further decision in relation to this complaint.

CA-00014743-009 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

In accordance with Section 7 of the Act I find that the complaint is well founded, and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.

I therefore order the Respondent to pay to the Complainant compensation of two weeks pay amounting to €1,208 (subject to any lawful deductions).

CA-00014743-010 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 Changes in Terms and Conditions of Employment

In accordance with Section 7 of the Act I find that the complaint is not well founded and therefore falls.

CA-00014743-011 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Having considered all the circumstances, I find on the one hand the Respondent failed to adhere to reasonable procedures before dismissing the Complainant, and on the other hand the Complainant remained absent from work for four weeks on pay without making any contact with the Respondent, and then ignored the Respondents call on 4th May 2017. The Complainant must therefore have to   shoulder some responsibility for the decision to dismiss him. A further factor that undoubtedly influenced the matter was the relationship between the parties as they were brothers. It is evident that this relationship had become estranged as a consequence of the events of 8th April 2018, and other historical factors.   I am also mindful that the Complainant has found alternative employment ten days later at the rate of €627 per week which significantly mitigate any losses.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant compensation of €1207.86 (subject to any lawful deductions) for the Unfair Dismissal

CA-00014743-012 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act. As I have found the Respondent is in Contravention of the Act and I direct that the Respondent pay to the employee compensation of six weeks’ pay, which represents his statutory notice, and amounts to €3,623.88.

Dated:   17th December 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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