ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002373

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/08/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.

Background:

The Complainant is a Mauritian national who was employed as a general labourer with the Respondent from 2nd February 2009 until 15th February 2016 he has made a series of complaints against the Respondent.

Summary of Complainant’s Case:

CA-00003180-004 Complaint under Section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted that he never received his paid holiday/annual leave entitlements for the seven years he had been employed by the Respondent. The Complainant further submitted that if he did not go to work due to national holiday he simply did not get any pay. He maintained that if business was quite he was told there was no work for and he had to take time off but was not paid any wages for this time of. The Complainant submitted that he should have been entitled to four weeks leave paid a year for the past seven years.

CA-00003180-005 Complaint under Section 6 of the Payment of Wages Act, 1991

The Complainant submitted that did not receive the appropriate payment in lieu of notice of on the termination of his employment. He further maintained that the Respondent had not provided him with wages for four weeks prior to the termination of his employment. The Complainant also contended that he would have received three weeks’ pay formally, and two days’ pay in cash, and at times he would not have been paid at the end of the week where he would have had to wait to receive his pay.

The Complainant also advised that he would not have received payslips and that he had been seeking same, and where he would have submitted his concerns to the Respondent in an email on the 25th of February 2016, where he subsequently sought this to be rectified during February and March 2016 in correspondence with the Respondent.

CA-00003180-007 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that he did not receive a statement in writing of his terms of employment. Despite several requests both verbally and in writing to have his terms and conditions provided the Complainant maintains that the Respondent had failed to provide him with this information.

CA-00003180-008 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

The Complainant maintained that the Respondent had failed to keep the statutory employment records with regard to his driving duties.

CA-00003180-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant maintained that he was unfairly dismissed as there was no work for him. The Complainant also maintained that the Respondent has taken his work vehicle off him before he was dismissed. He maintained that he had not been given any work nor requested to attend any sites for work for four weeks in 2016, and that in February 2016 he sought these matters to be addressed by his employer where he advised the Respondent that if his concerns could not be addressed he would regrettably accept his P 45.   He maintained that he did not receive wages that were due to him including payment for his annual leave entitlement, and he was not provided with written information on his term and conditions of employment. As these were not forthcoming he maintained he had no option but to leave his employment, and due to the unreasonable behaviour of the Respondent he was in effect constructively dismissed.

CA-00003180-010 Complaint under section 13 of the Industrial Relations Act, 1969

The Complainant submitted that he tried to address his issues with the Respondent but that he was bullied and harassed, and was afraid to say anything to the Respondent for fear of losing his job. He maintained that he could not afford to be out of work, and therefore could not raise the issues with the Respondent. He further advised that as he worked under a visa and was planning to apply for residency status to stay in Ireland to see his son grow up, and if he was out of work he feared he would lose his visa.

CA-00003180-011 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Complainant submitted that he was penalised by the Respondent for invoking his entitlements under the Protection of Employees (Fixed-Term Work) Act 2003. He further maintained that the Respondent had not confirmed his employment status and had not provided him with work or wages for four weeks prior to his termination of employment.

CA-00003180-012 Complaint under Section 39 of the Redundancy Payments Act, 1967

The Complainant submitted that he did not receive any redundancy payment. He submitted that he was not provided with any work since December 2015 and he was made redundant on 15th February 2016 as no work was provided to him.

CA-00003180-013 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that he did not receive is statutory minimum period of notice on the termination of his employment, or payment in lieu thereof. He maintained he was made redundant on 15th February 2016 without receiving his statutory notice.

Summary of Respondent’s Case:

CA-00003180-004 Complaint under Section 27 of the Organisation of Working Time Act, 1997

The Respondent maintained that it did provide the Complainant with paid annual leave. However, it failed to provide any record of the leave taken. It maintained it had been subject to a WRC inspection where it had received a clean bill of health in April 2016. It therefore contended it would have provided the Complainant with his leave entitlements. The Respondent also submitted pay slips for the period 7th August 2015 to 25th December 2015, and for February 2016, where the February pay slip paid the Complainant for a day’s holiday which he was owed on the cessation of his employment.

The Respondent argued this demonstrated that the Complainant was paid correctly and would have received his holiday pay entitlement. It also maintained that holidays were taken and paid for. The Respondent did not provide a record of annual leave taken by the Complainant.

CA-00003180-005 Complaint under Section 6 of the Payment of Wages Act, 1991

The Respondent maintained that the Complainant had in fact resigned without providing notice to the Respondent and accordingly he was not entitled to the payment in lieu of notice or for the four weeks wages that he was seeking in lieu of notice. The Respondent submitted that it had work for the Complainant in February but that the Complainant failed to turn up for this work, and through a process of communication with the Complainant (by e-mail and letter) the Complainant was advised of the work but decided in March 2016 that he was not returning to work. As the Complainant resigned, and did not serve his notice, the Respondent contended that he was not entitled to his notice period.

The Respondent maintained that it did provide the Complainant with payslips as this was required by the Complainant for a court case in 2013, and payslips were put in place at that stage. The Respondent also submitted that it was subject to an inspection by the WRC and on 13 April 2016 it received a clean bill of health from the Inspector (no verification of this was provided by the Respondent).

In support of its contention that the Complainant was paid correctly, the Respondent submitted payslips for twenty-three weeks for the period 7th August 2015 to 25th December 2015, and for the weeks 12 February 2016. The Respondent also submitted the Complainant’s P60 for 2015 which reflected the payments on the payslips. The Respondent argued this demonstrated that the Complainant was paid correctly.

The Complainant indicated work would vary from week to week and that in addition to the set wage of gross €350 per week, the Complainant also received a weekly subsistence allowance in cash which he only received when working.  

CA-00003180-007 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent conceded that the statement of employment was not provided to the Complainant.

CA-00003180-008 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

The Respondent submitted that as the vehicle provided to the Complainant was less a van the road transport regulations referred to do not apply in this case.

CA-00003180-009 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent disputed that the Complainant was dismissed. It argued that the Complainant resigned and contested that it behaved in a reasonable manner, and denied that the Complainant was constructively dismissed.

In this regard the Respondent submitted that it is well established that the Complainant is required to exhaust the employer’s internal grievance procedures in an effort to resolve his grievance prior to resigning and initiating an unfair dismissal complaint. The Respondent referred to juris prudence in UD 1350/2014, UD 866/1999 and UD 720/2006 all of which it argued supported the need for the Complainant to utilise and exhaust all internal remedies made available to him unless he can show that the said remedies are unfair. The Complainant also referred to UD 828/2011 which states a claimant must show that the Respondent acted in such a way that no ordinary person would continue in the work, and that the employer’s conduct was unfair or damaging to the claimant’s rights and entitlements that they would have no option but to resign your position.

The Respondent maintained that the events which led up to the Respondent’s resignation were associated with a period where not much work was available. It also understood the Complainant was doing some voluntary work to support his studies in February 2016 and was not available for work when it offered the Complainant work in February 2016. The Respondent maintained that when work became available again around 15th February 2016, and when the Respondent contacted the Complainant with regard to the work, that the Complainant did not make himself available for this work. The Respondent also maintained that the Complainant was using the company van at this time, and as the Complainant was not making himself available for the work it required the van. It explained that on 24th February 2016 the Respondent emailed the Complainant seeking an update on his whereabouts, and advising that if the Complainant had not intended to come back to work that they would need the van returned without delay. The Respondent submitted that in the following days, despite attempts to contact the Complainant, the Complainant did not return to work, nor did he return the van. In support of its position, the Respondent submitted a series of correspondence between the Respondent and the Complainant from the 24th February 2016 to early March 2016.

In reviewing this correspondence, the Respondent argued it demonstrated the difficulties it was experiencing with regard to the Complainant returning to work at that time. Despite these difficulties the Respondent advised it continued to offer the Complainant his job but the Complainant refused to return. The Respondent maintained that despite its attempts to have the Complainant return to work the Complainant requested his P 45. The Respondent submitted that eventually the Complainant returned the van, but it was missing tools that had not been returned, and the Respondent had to seek a return of these. The Respondent also submitted documentation that supported their assertion that the Complainant had continued to use the van when he was not at work for his own benefits where the van was being used on the toll roads by the Complainant.

The Respondent also submitted emails which indicated that the Complainant was seeking clarification on his terms and conditions of employment over this time, and on 3rd March 2016 it wrote to him and confirmed to the Complainant that he was a valued employee, that they would like to see his employment continued, and that they were prepared to provide him with the information he had requested with regard to his employment conditions. On 8th March 2016 the Respondent received correspondence which advised them the Complainant would not meet with them to discuss his conditions of employment unless this was part of a mediation process. The Complainant also requested that he be provided with his terms and conditions of employment by email or in written form and that any outstanding holiday pay would be paid to him before he returned. The Respondent advised at this time the Complainant was seeking €16,800as unpaid leave over the previous seven years. The Respondent further invited the Complainant to a meeting on 11th March 2016 to resolve matters, and they also advised that if the Complainant could not attend at that time that the meeting could rescheduled.

The Complainant also submitted that despite offering work to the Complainant in February and March 2016 he had requested his P45 on two occasions, and as a consequence by 16th March 2016 the Respondent had drawn the conclusion that the Complainant was not going to return to work and he had in fact resigned by asking for his P 45.

The Respondent had drawn the conclusion that the Complainant had never intended to return to work and had set up his own business and where he had used the Respondent’s photographs on a website incorrectly presenting their work as his.

Taking all of this into account the Respondent submitted that the Complainant had resigned before matters had been resolved and without meeting with the Respondent to resolve his concerns. On that basis it submitted he had not been unfairly dismissed, nor was there grounds for a constructive dismissal.

CA-00003180-010 Complaint under section 13 of the Industrial Relations Act, 1969

The Respondent maintained that when it first became aware of the Complainant’s concerns by his correspondence in February and March 2016 it did attempt to meet him to discuss his concerns but that the Complainant refused to return to work. Therefore, it advised that because of the Complainant not returning to work the Respondent was not provided with an opportunity to resolve his concerns. The Respondent denied it behaved in a bullying manner towards the Complainant, or that it harassed him as alleged.

CA-00003180-011 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

The Respondent maintained that the Complainant had been working with them since 2009, for some seven years, and as such he was on a contract of indefinite duration and accordingly the Protection of Employees (Fixed Term Work) Act 2003 did not apply to the Complainant. The Respondent therefore denied it could have penalised the Complainant as alleged.

CA-00003180-012 Complaint under Section 39 of the Redundancy Payments Act, 1967

The Respondent maintained that the Complainant was not made redundant and submitted documentation which it believed demonstrated that throughout February and March 2016 it was seeking for the Complainant to return to work, that work was available for him but that he resigned by seeking his P 45 and refusing to return to work. Therefore, the Respondent advised that the job was available at the time the Complainant resigned and a redundancy did not exist.

CA-00003180-013 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent maintained that as the Complainant had resigned without notice it was not obliged to pay him notice on the basis the Complainant had decided to terminate his contract of employment.

Findings and Conclusions:

CA-00003180-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

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

As the Complainant has worked these hours he is entitled to 4 working weeks paid annual leave. The Complainant maintained that he was never paid for the leave he took. He maintained that he would be paid cash in hand for two days each and the remaining three days three days were properly recorded.

The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records of start and finishing times, hours worked each day and each week and leave granted to employees. This legislation is part of the Organisation of Working Time Act 1997. The employer must keep these records for 3 years. As the Respondent has failed to provide these records to the hearing I find on the balance of probability that the Complainant did not receive the proper payment for his annual leave where. Based on the payslips submitted by the Respondent, the Complainant was paid €8.75 per hour, and where the pay slips would amount to five days a week. It argued extra money was paid n cash as a subsistence allowance.

I acknowledge the parties are in dispute in relation to whether annual leave was paid or not, and how the Complainant was paid.

The Complainant is entitled to be paid for his annual leave, and as the 23 payslips submitted demonstrate a flat rate of pay, with the exception of one days’ holiday pay mentioned in one pay slip, I find that the Complainant was paid for five day’s pay for each week he worked since August 2015, and where the pay slips presented would be consistent with the Complainant’s P60 for 2015. However, in the absence of actual leave records I am not satisfied the Complainant received his full holiday entitlement. I therefore find that the Respondent has failed to sufficiently demonstrate that the Complainant received his annual leave entitlement, and on the balance of probability I find in favour of the Complainant.  

CA-00003180-005 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant had submitted he was incorrectly paid in that he did not receive his termination notice payment, that he did not receive his pay slips, and that he was paid some of his wages in cash.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• in the case of a deduction, the employee has given his prior consent in writing to it.

Based on this Complaint I do not find the Complainant is in breach of Section 5 of the Act. I find the Complainant was as recorded in payslips provided by the Respondent, and where these payslips are consistent with the Complainant’s P60 for 2015.

It is outside the scope of the legislation to make a determination in this case regarding the cash payments which were made to the Complainant, and where the Respondent has argued these payments were by way of a subsistence allowance. The Complainant has not clearly demonstrated the basis of any cash payments made, or where unlawful deductions occurred.

As the payment for minimum notice is covered under the Minimum Notice & Terms of Employment Act, 1973, I do not find against the Respondent on that element of the complaint as it is considered in complaint CA-00003180-013 below.

CA-00003180-007 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 an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing…particulars of the terms of the employee’s employment.      

Based on the submissions made, and the acknowledgement by the Respondent, I find the Respondent is in breach of Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00003180-008 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

Having considered this complaint, I do not find these regulations apply to the Complainant as he was driving a van.

CA-00003180-009 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 that 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 of dismissing 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 presented, I am satisfied that the Complainant was not provided with any work for a number of weeks in January/February 2016. However, the Respondent secured further work and contacted the Complainant in mid-February to provide him with work. The Complainant still had use of the Respondent’s van at this time, and clearly had not been dismissed.

A review of the correspondence over this period demonstrates that the Complainant did not return messages or texts immediately, and perhaps on occasion this was genuinely due to technical issues. However, when contact was established, the Complainant seemed reluctant to return to work until certain matters in relation to his contract of employment were resolved. The Respondent did agree to meet with the Complainant to seek to resolve the matters, but the Complainant appears to have escalated the conditions upon which he would meet with the Complainant, and ultimately the correspondence between the parties became frustrated. Notwithstanding, a review of the correspondence clearly indicates the Respondent was keen to meet with the Complainant to resolve matters and to have him return to work.

In the course of this communication the Complainant asked for his P45, and as it appeared he was not going to return to work the Complainant asked for the van to be returned as it was needed to for the work in hand. The Complainant was also slow to return the van, and when it was returned it appeared to be missing an extensive range of tools and the Respondent wrote to the Complainant seeking a return of the tools. I am satisfied whilst all of this was happening the Respondent did not move to dismiss the Complainant, and was still seeking his return to work.

I also find the Respondent was reasonable in offering an alternative time or date to meet with the Complainant to seek to resolve matters, but ultimately the Complainant did not agree to meet with the Respondent. Whilst acknowledging there were significant concerns regarding contractual issues that the Complainant required to be resolved, I am satisfied the Respondent has not acted in any way over this period of time that would have caused the Complainant to have lost such trust in the relationship that a constructive dismissal would be warranted. The Respondent was emphasising work was available, it valued the Complainant, it maintained that it was prepared to meet him and that it wanted him back at work. The evidence presented supports that it was the Complainant who decided not to meet the Respondent and ultimately sough this P45.

On that basis I find that the Complainant resigned before progressing his grievance with the Respondent and where he declined a reasonable offer to meet with the Respondent in order to seek a resolution. Under these circumstances I do not find that the Complainant was unfairly dismissed.

CA-00003180-010 Complaint under section 13 of the Industrial Relations Act, 1969

Section 13 (3)(a)(i) of the Industrial Relations Acts, 1969 requires that I make a recommendation to the parties to the dispute setting forth my opinion on the merits of the dispute.

It is clear a dispute arose between the parties in February 2016 when the Respondent sought the Complainant to return to work. The communication between the parties at this time was by email, text messages and letters.

A review of the correspondence supports that concerns existed by the Complainant with regard to his contract of employment, and where the Respondent sought to resolve the matters and offered to meet with the Complainant. However ultimately the Complainant refused to meet with the Respondent.

There is no evidence to support that the Respondent was behaving in a bullying manner over this time, nor had the Complainant raised any formal complaint of bullying and harassment at that time. On the contrary the Respondent was dealing with the contractual concerns raised by the Complainant and offered to meet with him.

On that basis I do not find that the Respondent behaved unreasonably over the period when the complaints were being dealt with by the Respondent, and therefore I do not find in favour of the Complainant. A process was in place and avenues were open for the Complainant to progress his grievance. However, he decided not to exhaust the procedures despite being provided with some reassurances from the Respondent that it valued the Complainant and was seeking to have him return to work.

CA-00003180-011 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

In accordance with Section 6 of the Protection of Employees (Fixed Term Work) Act, a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

As the Complainant was in employment for seven years period to his termination of employment I find that in accordance with Section 9(3) of the Act, the Complainant was in fact on a contract of indefinite duration. Accordingly, I find the as the Complainant was no longer on a fixed term contract that the Act does not apply to him.

CA-00003180-012 Complaint under Section 39 of the Redundancy Payments Act, 1967

Section 7 (2) of the Redundancy Payments Act, 1967states

…[A]n employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concernedthe dismissal is attributable wholly or mainly to

• the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

• the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

• the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Having reviewed the evidence, I do not find the employee termination of employment was related to any of the above criteria. It is clear from the correspondence presented to the hearing that the Complainant’s position was not made redundant, and where the Respondent clearly stated that the job was open. The Respondent also advised that in the event the Complainant did not return, the job would have to be filled.

As I have already found that the Complainant resigned his position I do not find that his position was made redundant.

CA-00003180-013 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 five years or more, but less than ten years, six weeks.

Having reviewed this complaint I am satisfied that the Respondent did not in fact terminate the employment. The evidence provided supports that the Respondent was seeking to have the Complainant return to work but that the Complaint sough his P45 on two separate occasions and as such resigned his position. Under such circumstances I do not find the Respondent is in breach of this Act.

Decision:

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

CA-00003180-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

A decision of an Adjudication Officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

1. declare that the complaint was or, as the case may be, was not well founded,
2. require the employer to comply with the relevant provision,
3. require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

In the circumstances I find that the Respondent was in breach of Section 19 of the Organisation of Working Time Act, 1997and order the Respondent to pay the Complainant the sum of €1,400 for the unpaid annual leave during 2015, plus €2,000.00 in compensation, i.e. a total payment of €3,400 must be paid to the Complainant.

CA-00003180-005 Complaint under section 6 of the Payment of Wages Act, 1991

In accordance with section 6 of the Act, and having reviewed this complaint, I do not find the complaint is well founded and therefore the complaint fails.

CA-00003180-007 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 his conditions of employment.    

I therefore order the Respondent to pay to the Complainant compensation of four weeks earnings amounting to €1,400.

CA-00003180-008 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

As this Regulation does not apply to the Complainant, I find that the complaint fails.

CA-00003180-009 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.

As I have not upheld that the Complainant was unfairly dismissed, and as I have found that the Complainant resigned before progressing his complaint through the avenues provided by the Complainant, I decide that his claim for unfair dismissal fails.

CA-00003180-010 Complaint under section 13 of the Industrial Relations Act, 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

For the aforementioned reasons I do not uphold that the Respondent behaved unreasonably towards the Complainant in relation to the complaint raised. It is clear from the evidence provided that the Respondent was attempting to address the Complainant’s concerns, and the Complainant decided not to progress his concerns through the reasonable avenue proposed by the Respondent. This complaint therefore fails and does not require a recommendation from me.

CA-00003180-011 Complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

As the Complainant was on a contract of indefinite duration at the time of making his complaint I find that the Protection of Employees (Fixed-Term Work) Act, 2003 does not apply and accordingly I decided the complaint it is not well founded and therefore fails.

CA-00003180-012 Complaint under Section 39 of the Redundancy Payments Act, 1967  

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

As I have not found the role was made redundant I declare that the Complainant was not entitled to a redundancy payment and therefore do no not uphold this complaint.

CA-00003180-013 Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

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 not in Contravention of the Act I therefore decide this complaint is not upheld.

Dated:   12/02/18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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