Complainant

Respondent

Anonymised Parties

An Accountant

A Food Distribution Company

Act

Complaints Reference No.

Date of Receipt

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

CA-00018054-001

20/03/2018

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

CA-00018054-002

20/03/2018

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

CA-00018054-003

20/03/2018

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

CA-00018054-004

20/03/2018

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

CA-00018054-005

20/03/2018

The complainant was employed by the respondent as an accountant on the 13th February 2017 and his employment terminated on the 25th January 2018. He is claiming that he was unfairly dismissed, that he did not receive his contractual notice, the employer was in breach of the Organisation of Working Time Act, 1977 in respect of the hours he worked and he did not receive written terms of his conditions of employment. The respondent submits that the complainant has not got one year’s service as required by the Unfair Dismissals Act, 1977.

The complainant was employed by the respondent as a Financial Controller following an interview with the General Manager. He had worked previously as a Finance Director in a number of companies. He did not receive a contract of employment. He was initially told that his hours of work were from 8am until 4pm and then they were changed by the respondent to 2pm until 10pm.

When the complainant started work in the company it soon became apparent to him that the financial records were in serious arrears and operating on a day-to-day basis in a crisis management mode. The systems were defective and the technology was outdated. He recommended to the respondent that it would be necessary to move to a more efficient and transparent financial system. The General Manager never suggested to the complainant that there was any issue with how he managed the 2 IT systems. The complainant worked 12 to 14 hours per day to get the accounts up to date. The complainant persuaded the MD to recruit additional accounting staff but the staff recruited left within a short period.

Over the first 6 months the complainant made significant progress with the accounts and regularly updated the MD on the progress he had made. He changed his hours to accommodate the respondent. On the 6th September 2071 the complainant was called to a meeting by the GM who told him he was unhappy with the way he dealt with staff. He said that he was dismissed but he did not receive his P 45. About a week later he received a call from the MD inviting him for coffee and following this he was reinstated.  

In the latter months of 2017, the complainant had to become heavily involved in the cash and stock procedures for the delivery van drivers. He met with the van drivers and followed up discrepancies with them. This involved him working up to 10pm or later when the last driver returned to the depot.

On the 2nd January 2018, the complainant wrote to the MD complaining about his aggressive and bullying behaviour and the long hours he was expected to work. He requested a meeting to resolve the problems but no meeting took place. On the 24th January 2018, MD called him to a meeting about a report he had compiled and during the course of the meeting told him he was being dismissed immediately.

The complainant submits that he was unfairly dismissed.   He accepts that he was employed for less than a year with the respondent, but submits that at least one month’s notice should be implied into his contract.   Although there was no written contract, it should be noted that it is common case that the complainant was employed as a financial controller. It was submitted that the legal precedents are clear, that is, in the absence of a specific term in a contract relating to notice, the greater the level of responsibility the longer the period of notice should be. I was referred to Berber v Dunnes Stores [2006] IEHC 327 and Tierney v Irish Meat Packers [1989] where the High Court held that a 6 months’ notice period was appropriate for a Group Credit Controller and the same approach was taken in the case of Carey v Independent Newspapers Limited [2004].  

The respondent submitted that the complainant has less than one year’s service and that I have no jurisdiction to hear the complaint. The complainant was employed on the 13th of February 2017 as a Financial Controller and his employment was terminated on the 22nd of January 2018 with one week’s notice and he left the employment on the 23 January 2018 and was paid up until the 25th of January 2018.

The complainant was dismissed because of incompetence. He experienced difficulties handling the respondent’s account systems and was unable to prepare and provide management accounts and he was generally struggling to respond to and discharge those tasks and functions required of him as a financial controller.

In response to the complainant’s contention that he is covered by the UD Act, as he is entitled to contractual notice, the respondent submitted that the complainant was only entitled to a week’s notice and the date of dismissal following the notice was the 25th of January 2018 having commenced employment on the 13th February 2017.

Pursuant to section 1 of the Unfair Dismissals Act, 1977, the statutory date of dismissal shall be the later of:

“(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,”

The most that can be claimed by the complainant in relation to notice is one week pursuant to the statute. There is no written contract of employment and no agreement express or implied that the complainant would be given four weeks’ notice. It was submitted that holiday leave is not included in the calculation of service under the UD Act for the purposes of establishing whether the complainant has the necessary one year’s service to bring a claim.

The first matter I must consider is whether the complainant has a year’s service as required by the Act to a pursue a claim for unfair dismissal. The complainant was employed on the 13th February 2017 and notified of his dismissal on the 25th January 2018.

Section 2(1) provides:

Except in so far as any provision of this Act otherwise provides, This Act shall not apply in relation to any of the following persons :

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,”

I note that the complainant had no contract of employment specifying a longer period of notice than that which is provided in the statute. Therefore, the complainant cannot rely on section 1 of the UD Act cited above to extend the notice period and to extend his period of service for up to one year for the purposes of pursuing a claim of unfair dismissal under the Act. I am satisfied that the complainant has less than a year’s service as required by section 2(1)(a) of the Act to pursue a claim of unfair dismissal.   Therefore, I have no jurisdiction under the Act to hear the complaint of unfair dismissal.

I find that the complainant has less than one year’s service and therefore I have no jurisdiction to hear the complaint.

The complainant claims he did not receive payment in lieu of notice. The complainant said that he was told by the MD on the 24th January 2018 that he was being dismissed with immediate effect. The complainant told the MD that he was not accepting the decision and he went to work the next day. The MD had a further meeting with him and told him he had not changed his mind.     He asked the MD for notice and he refused to give him any and he did not receive any pay in lieu of notice.

The respondent denies that the complainant is entitled to pay in lieu of notice. The respondent told the complainant on the 22nd January 2018 that his employment was ceasing.   He was asked to work his notice of one week and initially he agreed to do so. However, the complainant told the MD the following day that he wished to leave that day the 23rd of January 2018. He was paid up until Thursday the 25th of January 2018.

The complainant is making a claim under the Payment of Wages Act for payment in lieu of notice. Section 1(1) of the Act states

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:”

And Section 5(1) provides:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— ……

There is a conflict between the parties in relation to the date of dismissal and whether the complainant received notice. The respondent said that he dismissed the complainant on the 22nd January 2018 and he gave him a week’s notice which the complainant refused to work and he left the employment the following day. I note that the complainant stated that he was dismissed on the 24th January 2018 and that his dismissal was confirmed on the 25th January 2018. He left the employment that day after getting his P45 and final payments from the FC. In evidence FC said that he met with the complainant on the 25th January in relation to his final pay and holidays. In respect of notice he said that the complainant was paid up until the 26th of January 2018 in respect of one week’s notice. This evidence corroborates the complainant’s evidence in relation to the date of his dismissal.

I am satisfied therefore, that the complainant was dismissed on the 24th January 2018 and he was paid up until 26th January 2018 in respect of notice. The complainant has a statutory entitlement of one week’s pay in lieu of notice and he was paid for 2 days. Therefore, he is due 3 days pay in lieu of notice which amounts to €428.88 nett pay.

I find that the complaint is well founded. I award the complainant €428.88 nett pay in respect of notice.

The complainant said that he is owed 3 days holiday pay. On the termination of his employment he was paid for 8 days annual leave. He said that he was due eleven days holidays and for the period of his employment his full holiday entitlement was 20 days. While the respondents record shows that he was paid for eleven days during his employment 2 of those days related to time in lieu days which the respondent allowed him to take.

The respondent submitted that the complainant was paid his full annual leave entitlement and all holiday money due to him was discharged to him in his final pay. FC, in evidence, stated that at the time of the dismissal he discussed with the complainant his outstanding entitlements and the records showed that he had taken 11 days. The complainant had worked 49 weeks and the statutory holiday entitlement was 19 days and the complainant was paid for 8 days leave.   It was submitted that the complainant agreed with the calculation of his annual leave entitlements.

The complainant claim is for 3 days’ pay in respect of annual leave. I note that the complainant was employed from the 13th February 2017 until the 24th January 2018 and was paid 19 days holiday pay. In relation to calculation of annual leave, Section 19 of the Organisation of Working Time Act 1997 provides as follows:

19.—(1) “Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Having calculate the complainant’s annual leave in accordance with the methods from (a) to (c) above, (c) provides him with the greater period of annual leave, that is 4 working weeks. I note that the complainant was paid for 19 days, therefore I am satisfied that he is due I day’s pay.

I find that the complaint is well founded and I award the complainant €143 nett pay in respect of one day’s annual leave.

I find that the complaint is well founded and I award the complainant €143 nett pay in respect of one day’s annual leave.

The complainant said that during his employment with the respondent he consistently worked between 12 and 14 hours per day. After he was recruited, his hours were 8am to 4pm but he very rarely left before 7 pm. He said that the company was busy and needed extra accounting staff. He persuaded the respondent to employ extra staff but it was difficult to retain staff. He said that the MD wanted him present when the delivery trucks drivers returned to ensure compliance with new cash and stock procedures. The complainant said that he agreed to change his hours to 2pm to 10 pm. Shortly afterwards he was asked to come in at 12 and then he was asked to come in before 12 and on some occasions, he was asked to come at 8am despite having finished work at 10pm the night before. He said that by late 2017 he regularly started work at 8am and finished at 10pm and this continued until the end of December 2017. The complainant emailed the MD on the 2nd January 2018 about the hours he was expected to work and even after this he was asked to work long hours.

The respondent submitted that the complainant’s hours were initially from 8am to 4pm. His hours were then changed to 2pm to 10pm. It is denied that the complainant was required to work 60 to 70 hours per week. The respondent stated that the complainant was slow and ponderous in his discharge of his duties and he was ineffective in his work. Since the complainant left, the respondent has not replaced him, his functions are being discharged by two other employees who were in the company during the complainant’s employment. It was further submitted that any instances of the complainant not being finished work by 10pm was as a result of his inability to deal with the tasks allocated.

The complainant’s case is that he frequently worked 60 hours per week, and he produced a number of text messages, between himself and the MD, indicating that he was in the office at 10.30 pm and that he was also requested by the MD to be in the office at 8 am. He also submitted in evidence an email he sent to the MD on the 2nd January complaining about having to work up to 60 hours per week.

The respondent said that he did not keep any records in relation to the hours worked but he denies that the complainant was ever asked to work long hours. He said that if he did it was due to the fact that he could not get his work done on time.

Section 15 of the Organisation of Working Time Act, 1997 states: -

15.—(1)” 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, 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, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

Section 25 of the Act states:

25.—(1) “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 may be prescribed, as will show whether the provisions of this Act 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) states:

(4) “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 Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The respondent said that he did not keep any records of the hours that the complainant worked but he accepted that the complainant raised issues about the number of hours he was working. I note that the complainant’s text messages to and from MD during November and December 2017, supports his contention that he was asked to start work earlier than his agreed hours of 2pm to 10 pm and that he finished later and after 10pm on some occasions. In one text the respondent requested the complainant to be in work at 8am the following day even though the complainant’s hours were 2pm to 10 pm and this supports the complainant’s contention that he was asked to attend work before his starting time of 2pm.

I note that Section 25(4) places the onus of compliance with the Act on the respondent in circumstances where an employer fails to keep records. I am satisfied that these texts corroborate the complainant’s direct evidence that he worked up to 60 hours in some weeks. While the respondent contended in evidence that that the work carried out by the complainant did not require him to work the hours he alleges he worked, the onus is on the respondent to ensure he did not work those hours. Section 15(1) of the Act provides that an employer shall not “permit” an employee to work more than 48 hours in the relevant statutory time period.

Having considered the totality of the evidence presented, I am satisfied that the complaint is well founded. I award the complainant €1,500 in respect of the breach of the complainant’s rights under the Act

I find that the complaint is well founded and I award the €1,500 in compensation for the breach of his rights under the Act.

The complainant said that he did not receive a statement in writing of his terms and conditions of employment.

The respondent accepted that there was no contract of employment provided to the complainant.

The Terms of Employment(Information) Act 1994 provides the following

3.—(1) “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 the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) 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,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

As no such statement was provided to the complainant, I find that the complaint is well founded.

I order the respondent to pay the complainant €400 nett compensation in respect of the breach of his rights under the Act.

I find that the complaint is well founded. I order the respondent to pay the complainant €400 nett in respect of the breach of his rights under the Act.

Unfair Dismissal Act 1977, jurisdictional one years’ service, Payment of Wages Act, 1991 pay in lieu of notice, Organisation of Working Time Act, 1997 annual leave and hours of work, Terms of Employment (Information) Act 1994, statement of terms and conditions of employment.