Act

Complaint Reference No.

Date of Receipt

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

CA-00013142-001

15/08/2017

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

CA-00013142-003

15/08/2017

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

CA-00013142-004

15/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 (Duplicate Claim to CA-00013142-003)

CA-00013142-005

15/08/2017

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

CA-00013142-007

15/08/2017

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

CA-00013142-008

15/08/2017

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

CA-00013142-009

15/08/2017

This Case surrounds a Machine Operator who submitted several claims surrounding a four-year history of employment. the Respondent did not engage with the claim or attend the hearing of the case.

The Complainant is a Latvian National. He worked as a Timber Machine Operator for the Respondent from 5 March 2013 to 25 June 2017. He submitted that he worked a 60-hour week in return for €754.30 gross per week. He was accompanied by his wife at the hearing and made written and oral submissions in support of his complaints lodged on 15 August, 2017. The Complainant understood that he Company was on the verge of Liquidation. Where there had been 10 employees, numbers had reduced to two employees.

CA -00013142-001 Claim for Unfair Dismissal

The Complainant submitted that he had taken annual leave from June 6, 2017, where he had returned to Latvia. On June 16, he was informed by the Respondent to extend this leave due to a Dispute with a third party. This Dispute remained unresolved and there was no further work for the complainant. On 21 June, the complainant received a message from the Respondent which indicated that he anticipated a return to full service within the following two weeks. This incorporated payment of wages, overtime and holiday pay. He submitted that there had been problems with his pay for over a year before this.

On 25 June, 2017, the Respondent instructed the complainant to return to work. The Complainant submitted that he had not been paid and was unlikely to be paid in the short term. The Complainant submitted that he was not prepared to undertake a journey to Cork for work without being paid. The Complainant submitted that he refused to go to work and the Respondent committed to forwarding his P45. The Complainant submitted that he had been constructively dismissed and entitled to treat himself as discharged from any further performance.

The Complainant contended that he had done all in his power to keep working, inclusive of overtime work but trust had been breached through non-payment of wages owed. He had no desire to return to work before receiving payment for past work. He responded to another job offer a commenced new work on more favourable terms on 26 June, 2017.

The Complainant submitted that the Respondent had made selective payments to some employees but not to him. He understood that the Respondent had relaunched under a different company name. Undertakings given in relation to unpaid wages were not honoured and instead, he was asked to return a tool box, which had been the subject of a robbery when left unattended during the extended period of annual leave.

The Complainant did not have recourse to pay slips, P45 or P60, neither did he have access to a contract of employment. He submitted lodgement slips covering variable wages received in 2013-2016 inclusive. He also submitted a series of exchanged texts with the Respondent which confirmed his pursuit of pay during June 2017.

His last payment date with the Respondent was dated June 9, 2017 where he received €500.The Complainant submitted that his employment was terminated on his second day at his new employment.

The Complainant submitted that he received a call from the Respondent on June 25, where he explained that he had problems with his Bank. The Complainant submitted that he was owed €2065 in unpaid wages. He submitted that he had experienced difficulties in being registered in 2013 but the Department of Social Protection had confirmed his 52 payments per year over the past three years.

The Complainant referred to case law in

Western Excavation v Sharpe (1978) ICR 221

Woods V WM Car Services (Peterborough) Limited [1981] ICR 666 on “last Straw “

CA-00013142-003    Pay

The complainant outlined that he was owed €2065.00 in unpaid wages, €2410.00 in unpaid holiday pay and €2880.00 in monetary value of notice not received. He outlined that he had received some combined cheque and cash payments but was owed a monthly payment of €1,135 in unpaid overtime worked and €930 in unpaid wages.

CA-00013142-004 Public Holidays

The Complainant submitted that public holidays had been paid sporadically during his employment. He stated that he received payment during the first year but not during the second year. He understood that he received €96.00 in payment but did not have any documents to prove this.

CA-00013142-005     Duplicate of CA 00013142-003

CA-00013142-007 Terms of Employment

The Complainant submitted that he had not received a statement of his terms of employment.

CA-00013142-008

The Complainant submitted that he was enforced to work more than 60 hours per week between January 1 and 26 June 2017.The Complainant undertook to forward evidence of excessive hours worked after the hearing.

CA-00013142-009 Duplicate of CA -00013142-004

CA -00013142-001 Claim for Unfair Dismissal

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-003     Pay

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-004

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-005 Duplicate of CA -00013142-003

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-007 Terms of Employment

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-008

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA-00013142-009 Duplicate of CA-00013142-004

There was no appearance by or on behalf of the Respondent. There was no response to the claim.

CA -00013142-001 Claim for Unfair Dismissal

On the morning of the hearing, I permitted a waiting period to facilitate the late arrival of the Respondent in the case. There was no appearance. A search on the Company Registration Office indicated that a formal wind up of the company and appointment of a Liquidator was announced on 14 March 2018.

I have considered the oral and written submission of the complainant given with the support of his wife. There was some confusion on the exact nature of the complaint His complaint form indicated a claim for constructive dismissal, yet his evidence centre on his employment being terminated by the Respondent. I resolved this conflict and received clarification from the complainant that he claimed for constructive dismissal.

Section 1 of the Act defines constructive dismissal as:

“… in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment ….”

The burden of proof rests with the complainant to prove that he has left his employment due to the unreasonable behaviour of the employer, he has been forced to leave.

The Complainant did detail a precarious work environment going back over several years. I did not have the opportunity to hear from the respondent on these assertions. His work involved travelling to distant sites which required overnight accommodation, he was unable to secure payment for these in the latter days of his employment. He received a part payment of €500 cash on 9 June 2017 but no further payment. He told the hearing, he had a family to care for. I did not have the benefit of sight of pay slips or a p45.

Payment of Wages is a fundamental aspect of the employment relationship. I am satisfied that the complainant was available for work from his return from leave in early June. He was not placed on Lay Off and he lost wages. He accepted another offer of employment and informed the respondent that he would not return to work. I am satisfied that the claim for constructive dismissal came first in time before the claim surrounding the dismissal on 25 June.

A Constructive Dismissal is said to occur when the Employer breach goes to the root of the contract or chooses not to be bound by one or more of the essential terms. Denning in Western Excavating (ECC) V Sharp [1978] ICR 1221 and applied in this State in O Brien V Murphy Plastics UD 142-4/1980

I find that it was reasonable on uncontroverted evidence, in the absence of pay and any concrete plan to remedy this omission, the complainant was entitled to consider himself constructively dismissed on June 20,2017 and his claim is well founded.    

CA-00013142-003   Pay

I have considered the claim as advanced solely by the complainant. There is no obligation on the Respondent to pay notice in the face of a successful claim for constructive dismissal. I have found that the complainant was constructively dismissed.

The claim is therefore distilled to a claim for unpaid wages. Section 5 of the Act prohibits the Respondent from making deductions from wages outside some pleaded exemptions. I have not heard from the Respondent in the case and in the absence of an alternative outline, I am satisfied that the complainant is owed €2,065 in unpaid wages and €1,508.60 in unpaid annual leave and his claim is therefore well founded.

CA-00013142-004 Public Holidays

I have given some consideration to this claim. I did not have the benefit of the Respondent records maintained under Section 25 of the Act. I am limited in terms of the cognisable period of the claim to a six-month period preceding the date of claim on 15 August 2017. The Complainant stated that he did not receive the statutory benefits of public holidays as provided for in Section 21 of the Act. Base on his uncontroverted evidence, I find the claim to be well founded.

CA-00013142-005   Duplicate of CA 00013142-003

CA-00013142-007 Terms of Employment

I have considered this claim and have reflected on how the presence of the written statement of terms of employment as prescribed in Section 3 of the Terms of Employment (Information) Act 1994 would have assisted with this entire case.

The Complainant commenced work in 2013 and four years later, he was unable to provide a document such as required by Section 3 of the Act. The Respondent did not provide such a document. I am satisfied that a continuous breach occurred in terms of Section 3 of the Act and the complaint is well founded.

 CA-00013142-008 Weekly working hours.

I have considered this claim. I sought extra from the complainant at hearing as I was not satisfied that the claim had been sufficiently particularised in accordance with the Act. I did not have the benefit of any records from the Respondent.

The Act sets out the rules on weekly working in Section 15 of the Act.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, 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, or

(b) 6 months—

(I) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

Based on the claim as presented, I cannot establish a breach of the Act. The Complainant did send extra documentation post hearing, but outside a reference to two weeks of 61 and 55 hour working, the complainant did not particularise his claim. I have found the complaint to be not well founded.

CA-00013142-009 This is a Duplicate Claim to CA-00013142-004