Complainant

Respondent

Anonymised Parties

A driver

A food manufacturer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00023808-001

05/12/2018

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

CA-00023808-002

05/12/2018

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

CA-00023808-003

05/12/2018

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

CA-00023808-004

05/12/2018

The Complainant says he was unfairly dismissed when his employment was summarily terminated in November of 2018. The Complainant has brought additional complaints under other Acts relating to the terms and conditions in operation in the workplace. The Complainant was represented and I heard from the Complainant in person.

The Respondent has challenged my jurisdiction to hear the Complainant’s case under the Unfair Dismissals Acts as he does not have the requisite period of Service. The Respondent has provided me with submission in addition to oral evidence.

I have carefully listened to the evidence adduced by both parties herein. The parties provided me with relevant documentation and the Respondent representative had sent submissions regarding the different complaints a few days in advance of hearing.

It became clear that a preliminary issue needed to be addresses in terms of the Unfair Dismissal claim. The Respondent challenged my jurisdiction to deal with this matter in circumstances where it alleged that the Complainant had only worked with the Respondent for just over eight months and therefore well short of the twelve months required by Statute.

The Complainant had worked as a driver for two distinct periods of time with the Respondent Company. He first started in August of 2017 and this employment ended in November of 2017 at which time the Complainant took his P45 and went elsewhere.

The Complainant was re-engaged under a new contract in February 2018 and worked through to the beginning of December 2018. There is no doubt that the Complainant was on notice of the fact that any previous periods worked with the respondent company were not included for the purpose of Service and that the Contract commencing in February of 2018 was a new Contract of employment. All this was contained in the 2018 contract of employment.

Whilst the Complainant stayed with the Respondent Company for 8 months, the relationship did not work out and the Employment ended in December of 2018. The Complainant clearly believes that the termination was Unfair and has brought this complaint before the WRC.

I am satisfied on the evidence presented that I do not have jurisdiction to hear the case being made under the Unfair Dismissals legislation as the Complainant does not have the requisite 52 weeks service.

The complainant has brought a number of other complaints outlined in the Workplace Relations Complainant Form dated the 5th of December 2018.

The Respondent has conceded that the Complainant is entitled to receive Minimum Notice pursuant to statute and has in the circumstances agreed to my making the appropriate Order under this Act. It is agreed that the Complainant is entitled to one week payment in lieu of Notice at a rate of €552.00.

There is an issue raised regarding the provision of or payment/non-payment of Annual Leave during the course of employment (as provided for in the Organisation of Working Time Act). It was agreed that for the period of employment (between February and December 2018) there was an entitlement to (at most) 15 days annual leave. The Complainant accepted that he took 7 days and was paid 2 days in his last paycheque. This left a balance of 6 days. The Respondent said that it had already paid these days to the Complainant who had requested these days pay when he was out on unpaid sick leave. There are no formal records of this.

Separately there was a claim for non-payment of wages and in particular the Complainant said in his complaint form that he was doing overtime and not getting paid. However, in evidence the Complainant was making a slightly different case that he was not paid for the long hours he was expected to work and that he never took statutory breaks.

I was shown the clocking in and clocking out time sheets which very generally tended to show a working week of in and around 40 hours. The Complainant was unable to instance any weeks wherein he could show he had worked well over the Contracted 40 hours and this failure to detail or particularise his claim made it difficult. The Respondent agreed that it would pay an ex gratia payment equating to 10 hours for the last two weeks employment – being the two wage slips provided by the Complainant albeit neither disclosed a shortfall.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 -CA-00023808-001

The Respondent accepted there was an entitlement to Minimum Notice and will pay in lieu at a rate of €552.00 Gross per week. The Complainant commenced employment in February 2018 and December 2018.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00023808-002 The Complainant cannot make a claim under this Act where he has not got the requisite 52 weeks service.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00023808-003

I find the complaint to be well founded and that the Complainant is at a loss of three days Annual Leave. I direct the Respondent to pay to the Complainant the sum of €336.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00023808-004 – I direct that the Respondent pay to the Complainant the equivalent of 10 hours pay at a rate of €14.00 per hour. The sum therefore of €140.00 to be paid.