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-00012904-018

23/07/2017

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

CA-00012904-019

23/07/2017

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

CA-00012904-001

23/07/2017

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

CA-00012904-002

23/07/2017

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

CA-00012904-003

23/07/2017

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

CA-00012904-004

23/07/2017

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

CA-00012904-005

23/07/2017

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

CA-00012904-006

23/07/2017

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

CA-00012904-007

23/07/2017

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

CA-00012904-008

23/07/2017

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

CA-00012904-009

23/07/2017

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

CA-00012904-010

23/07/2017

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

CA-00012904-011

23/07/2017

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

CA-00012904-012

23/07/2017

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

CA-00012904-013

23/07/2017

Complaint seeking adjudication by the Workplace Relations Commission 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

CA-00012904-014

23/07/2017

Complaint seeking adjudication by the Workplace Relations Commission 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

CA-00012904-015

23/07/2017

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

CA-00012904-016

23/07/2017

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

CA-00012904-017

23/07/2017

The complainant referred the above complaints on 23 July 2017.   On 30 November 2017, they were delegated to me by the Director General for hearing and decision.   I held a hearing in respect of them on 11 January 2018. The final correspondence in relation to the complaints was received on 16 March 2018.  CA-00012904-018 and CA-00012904-19, under the Payment of Wages Act 1991, were previously disposed of in my decision ADJ-00009972.

Complaints under the Terms of Employment (Information) Act, 1994 (CA-00012904-001, CA-00012904-003, CA-00012904-004, CA-00012904-005, CA-00012904-006, CA-00012904-007, CA-00012904-008 and CA-00012904-014):

The complainant complains that his contract does not give his pay for the purpose of calculating the National Minimum Wage. In particular, his representative argues that with the extra hours which the complainant worked, he earned less than the minimum wage.   It was further argued that reference to the statutory notice periods he is entitled to is missing from his contract of employment; that the complainant’s break times are not listed in his contract of employment ; that the complainant’s contract of work does not give the respondent’s address in the state (the respondent is a UK company which also trades in Ireland), that the complainant’s contract does not give the complainant’s place of work; that the complainant’s contract of employment is not signed and dated; that the complainant’s position in the respondent company changed, yet he was not given written confirmation of this change;   and that the complainant was not properly notified of his rights under the S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, pursuant to regulation 11 of same. The complainant’s representative subsequently accepted that the complainant was aware of this through the training he received from the respondent.  

Complaints under the Organisation of Working Time Act, 1997 (CA-00012904-002, CA-00012904-009, CA-00012904-010, CA-00012904-011, CA-00012904-012, CA-00012904-13 and CA-00012904-015): CA-00012904-012 and CA-00012904-015 were withdrawn during the hearing of the complaint.

The complainant states that contrary to S. 20 of the Organisation of Working Time Act, he was not paid in advance for his holidays, although he accepts that his salary continued to be paid into his bank account, via EFT, as normal. He also accepted that he never protested this payment method. His representative clarified that his client did not claim a detriment in respect of this complaint, but a technical violation of the law.

The complainant further stated that in violation of S. 19 of the Organisation of Working Time Act, he did not get all his holidays within the statutory leave year. The complainant was unable to specify his working hours within one of the relevant reference periods for the purpose of computing his entitlement pursuant to S. 19(1).

In his complaint pursuant to S. 17 of the Organisation of Working Time Act, the complainant states that he was not notified in advance of additional hours he needed to work, and that he was not notified in advance of the need to work overtime.

In his complaint pursuant to S. 12 of the Organisation of Working Time Act, the complainant stated that he did not get his daily rest periods.

Complaints under the Payment of Wages Act, 1991 (CA-00012904-016 and CA-00012904-017): The complainant states that he did not receive €1,500 due to him for the period from 21 June to 3 July 2017, or alternatively, that he got paid less than the amount due.

Complaints under the Terms of Employment (Information) Act, 1994 (CA-00012904-001, CA-00012904-003, CA-00012904-004, CA-00012904-005, CA-00012904-006, CA-00012904-007, CA-00012904-008 and CA-00012904-014): The respondent states that the complainant’s contract of employment shows his annual salary of €25,419.   It also states that the monthly pay interval is referenced in the contract. Payslips were submitted in evidence which show that the complainant was paid for overtime. The complainant’s contract of employment was submitted in evidence. In respect of the notice period, counsel for the respondent argued mootness, but the complainant’s representative countered that the reference to the complainant’s statutory entitlements under the Minimum Notice and Terms of Employment Acts was missing from the contract.

As regards the complainant’s entitlement to rest breaks in his work first as a driver’s assistant, and later as a driver, the respondent argues that this information was contained in the training documents which the complainant received and for which he signed. These were submitted in evidence.

In respect of the respondent’s address in the state being provided in the contract, counsel for the respondent accepted that a technical breach may have occurred. As regards the complainant’s place of work and the issue of valid signatures on the contract, she pointed to the job offer letter which was issued to the complainant along with the contract, which provides these details, and argued that the documents in conjunction form the complainant’s contract.

Complaints under the Organisation of Working Time Act, 1997 (CA-00012904-002, CA-00012904-009, CA-00012904-010, CA-00012904-011, and CA-00012904-13):

The respondent considers the complainant’s complaint about the holiday pay (S. 20) to be frivolous and vexatious, given that the complainant admits that he suffered no detriment. Counsel for the respondent also referred to the Labour Court decision TED1728, Grant Engineering (Ireland) Unlimited Company v. Denis Delaney, in which the Chairman of the Court, Mr Kevin Foley, addresses the situation of a technical legislative breach without concurring detriment rather extensively.

The respondent further states that records of hours worked, to calculate holiday entitlements pursuant to S. 19 of the Organisation of Working Time Act, were provided to the complainant following a data access request, and that it should therefore have been possible for the complainant’s representative to make the required calculations.   The respondent stated that the complainant worked full time and was entitled to 20 days statutory leave, and that overtime was paid rather than given as time off in lieu.

As regards the complaint that the complainant was not notified in advance of extra hours, the respondent states that this was arranged, but that overtime was not notified in advance. The complainant had to be available from 7am to 6pm. The respondent explained, and the complainant confirmed, that because of the vagaries of being a delivery driver, workdays could be long or short, depending on circumstances.   A working day could finish at any time from 3pm to 8pm.   Counsel for the respondent stated that the provisions of S. 17 are for regular overtime rather than a situation of fluctuating work time. The complainant was paid a set salary for his normal hours, and overtime for any extra hours.

As regards the complainant’s break times, the respondent states that the complainant, being a driver helper, got his breaks along with the driver, and that these breaks can be proven from the recording equipment in the van.   All relevant records were provided in evidence.

Complaints under the Payment of Wages Act, 1991 (CA-00012904-016 and CA-00012904-017): The respondent stated that its employees are paid three weeks in arrears and one week in advance. The complaint relates to the payments due to the complainant when he resigned his employment. It is the respondent’s position that the complainant was correctly paid.   Payslips were submitted in evidence.  

Complaints under the Terms of Employment (Information) Act, 1994:

CA-00012904-001 – rate of pay and pay intervals:

I am satisfied that that the complainant’s annual salary, as well as the fact that he is paid in monthly intervals, is set out clearly in his contract.   I already made a previous finding (ADJ-00010961) that the complainant was paid well over the national minimum wage. I am further satisfied that the complainant was correctly paid for overtime, as shown by the respondent in evidence, and that therefore the allegations of his representative that once overtime was factored in, his client earned less than the national minimum wage, have no merit. This part of the complaint must therefore fail.

CA-00012904-003 – notice period in contract:

Section 3(1)(l) of the Terms of Employment (Information) Act states defines the entitlement to information about a notice period as follows:

the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, […]. [emphasis added]

In other words, unlike what the complainant’s representative asserts, an employer is not obliged to make a reference to statutory notice periods in a contract of employment. Furthermore, given that the complainant had already voluntary resigned his employment with the respondent at the time the complaint was lodged, the issue is moot, and no detriment accrued to the complainant. Accordingly, this part of the complaint must fail.

CA-00012904-004 – rest breaks (S.I 49/1998): I am satisfied from the training records submitted in evidence by the respondent that the complainant was appropriately informed about his rest breaks. This part of the complaint must therefore fail.

CA-00012904-005 – address of employer in the state: This part of the complaint is indeed well-founded, as the respondent’s Irish address was not provided on either the contract or other documentation. At the same time, I do regard it as a somewhat technical breach. The complainant has not demonstrated any detriment arising from it for himself.

CA-00012904-006 – work address and CA-00012904-007, change of work address: I am satisfied that the complainant’s work address was provided to him first in his acceptance letter, and later when it changed, in a separate letter from 28 February 2017, which the complainant acknowledged with his signature. These parts of the complaint must therefore fail. I will address the issue of reading documents in conjunction for a valid contract in the next part of my decision below.

CA-00012904-008 – contract signatures: It is well-established in contract law that a joinder of documents can constitute a valid contract, as long as the documents are cross-referenced, and specifically, as long as the document signed by the person paying the consideration cross-references the other documents. In an employment contract, that party would be the employer. The authority for the first principle is McQuaid v. Lynam [1965] I.R. 564, and the authority for the second principle is Kelly v. Ross & Ross, unreported, High Court, 29 April 1980. There, McWilliams J held that nine separate documents relating to a property sale could not collectively or individually constitute a contract because the signed documents, which did not contain all material terms, did not cross-reference the other documents.

In the within case, I examined the signed and dated letter by which the complainant was offered the position, and I am satisfied that his main contract of employment is correctly referenced in the body of the text.   I am therefore satisfied that a valid contract of employment was entered into between the parties which also satisfies the requirements of S. 3(4) of the Terms of Employment (Information) Act. This part of the complaint must therefore fail.

CA-00012904-014 - S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012:

The respondent stated that its workers were informed of same on a staff notice board and through training. The complainant’s representative accepted this. This part of the complaint must therefore also fail.

Complaints under the Organisation of Working Time Act, 1997:

As noted, CA-00012904-012 and CA-00012904-015 were withdrawn during the hearing of the complaint.

CA-00012904-002 and CA-00012904-013 – daily rest periods:

I am satisfied, from the records submitted by the respondent, that the complainant did receive his rest breaks. This part of the complaint must therefore fail.

CA-00012904-009 – annual leave not paid in advance:

It is important to note here that the complainant accepts he never requested advance payment and that he was not in any way at a detriment from receiving his salary in the normal way via electronic funds transfer (EFT) during periods of annual leave.   In the absence of any such requests by the complainant, and given that continuing pay as normal via EFT, especially amongst salaried workers, is an extremely widespread contemporary employment practice which does not generally attract complaints, I am prepared to find that such an approach actually constitutes an arrangement more favourable to the employee as permitted by S. 20(3) of the Organisation of Working Time Act.  

I am basing this finding on the fact that most people nowadays have their financial obligations set up as direct debits and standing orders and that having their salary continued to be paid into their accounts as normal whilst on holiday can help not to disrupt these rhythms.   The widespread availability of all kinds of electronic payments, be it by credit or debit card, computer, internet payment services, or mobile phone, also means that consumers are much less dependent on cash than they used to be. The availability of mobile and internet banking also means that account balances are easily tracked from any place in the world which has an internet connection.  

The Organisation of Working Time Act dates from a time when considerable numbers of workers were still being paid by cash or cheque, paid their own bills similarly, and were reliant on paper statements from their bank for an accurate idea of their financial situation. In such circumstances, they could ill afford to let pay due to them languish at their employer’s premises during their absence on leave.   Technical progress has eliminated this situation for most workers. Of course, where this is not the case, or where unique personal circumstances obtain, workers should not hesitate to request advance payment from their employer and avail themselves of the provisions of S. 20 if necessary. But given that the complainant has accepted that he personally suffered no detriment, and had not made any submission that the method by which he was paid was in any way less favourable than advance payment of his salary, I am satisfied that his salary was paid to him in the most favourable arrangement pursuant to S. 20(3).  I therefore find that this complaint must fail.

CA-00012904-010 – statutory leave entitlement not received:

This complaint fails for lack of evidence.   The complainant was not able to demonstrate where the statutory violation occurred, within the correct reference period, or even identify a reference period. From records submitted by the respondent, I am satisfied that the complainant received his full contractual leave entitlement.

CA-00012904-011 – no notification in advance of additional hours:

I am satisfied from the respondent’s evidence and records that the complainant was notified as to the hours when he had to be available, and that the fluctuation in his working hours was due to the nature of his delivery service work and made it impossible to notify occasional overtime in advance. I am further satisfied that the complainant was paid his regular salary and overtime as appropriate. This complaint must therefore also fail.

Complaints under the Payment of Wages Act, 1991 (CA-00012904-016 and CA-00012904-017): The complainant’s representative confirmed that he submitted these in the alternative, therefore I will deal with them together.   I am satisfied from the evidence submitted by the respondent that the complainant was paid correctly at all times. The complaints must therefore fail.

For the reasons set out in detail in the preceding section, all sub-complaints under the Terms of Employment (Information) Act, 1994 fail except for CA-00012904-005, the respondent’s failure to list its address in the state on the complainant’s contract of employment.   Given that no detriment accrued to the complainant from this omission, an order of compensation is not warranted.   I do order the respondent, however, pursuant to the provisions of S. 7(2)(b) and (c) of the Act, to provide both the complainant and all its current staff employed in the Republic of Ireland with this information, and to update its standard employment contract, respectively job offer letters, as appropriate.

All sub-complaints under the Organisation of Working Time Act, 1997 fail.

All sub-complaints under the Payment of Wages Act, 1991 fail.

Terms of Employment (Information) Act, 1994 – Organisation of Working Time Act, 1997 – Payment of Wages Act, 1991 – McQuaid v. Lynam [1965] I.R. 564 – Kelly v. Ross & Ross, unreported, High Court, 29 April 1980 - TED1728, Grant Engineering (Ireland) Unlimited Company v. Denis Delaney