ADJ-00015419

Complainant

Respondent

Anonymised Parties

{A Mechanic}

{A Car Repair Company}

Representatives

Padraig Langsoh BL, Higgins O’ Reilly Solicitors

Dmitrij Karpovic

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014054-006

20/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00014054-007

20/09/2017

The Complainant was employed from 27th February 2017 to 12th August 2017 as a car mechanic.

The Complainant is a non-national. He was not given any written statement of terms of employment. He was paid 600 euro cash net per week. He requested a written contract of employment on a number of occasions.

The Complainant says his wages were not paid, and there were deductions made without notice which were not his fault in the last few weeks of his employment. The Respondent did not comply with his terms and conditions. He was not paid his wages on 2 occasions, overtime, annual leave and bank holidays. He has an IOU from the company for 560 euro, and he was owed another 50 euro which was not included in the IOU.

He worked 48 hours per week and regularly completed overtime of 3 or 4 hours. Car repair is after hours work. He is owed 175 euro for overtime. He was forced to leave due to non-payment.

There was a dispute with a customer over the price of repairs and the client would not pay for repairs. The quote given was not correct. There was a second incident where the Complainant sent a client off 4 times as he was working on another car. There was only 1 lifter. The client then went to the manager.

The company gave different reasons for the deductions including pricing that he priced the job wrongly, and no money in the business. His holidays were not paid. He had to leave employment as he was not paid 900 euro for his last 2 weeks of work. Also the attitude and his treatment by management was bad.

The Respondent requested an adjournment of the hearing which was refused due to his co-owner being abroad. A Nera inspection is ongoing. He was not aware that he is obliged to furnish a statement of terms of employment in writing. This was not requested from him. He is not aware if this was requested from his co-owner.

The Respondent says the Complainant was employed on a part-time basis only for 3 half days per week. The Complainant is a personal friend of the other co-owner. As part of the arrangement the Complainant who had his own customers could use the garage, lift and tools without charge. He worked overtime on his own customers cars not on the company’s customers cars. Payment of overtime was never agreed.

The Respondent says it is incorrect that deductions were made due to the incident with the client. The quote given for the work was 130 euro but 370 euro was requested. The client only paid 130 euro as a result. The Complainant was not penalised but received a third warning, that he will be demoted and not allowed use the garage. In addition, the Complainant had an argument with a client on the previous day. The Respondent says an official warning was given, but the Complainant still got his full salary.

On 6th August 2017 the Respondent said the Complainant did not turn up for work. The client had to be cancelled. No notice of his resignation was given to the company.

I have heard the evidence of the parties and considered the written submissions of the Respondent on 3rd September 2018 and of the Complainant on 1st November 2018.

CA-00014054-006

S3 of the Terms of Employment (Information) Act 1994 requires an employer provides a written statement of terms of employment to the employee within 2 months of the employee’s employment. This is a continuing duty. There is no evidence of compliance with this duty and accordingly I find the complaint is well founded. I award 4 weeks weekly remuneration of 146.40 euro total 585.60 euro which is the amount of the Complainant’s income which was returned to the Revenue Commissioners as compensation for the breach and direct this is paid by the Respondent.

CA-00014054-007

The Worker claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act. This defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, 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 without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the burden of proof is on the employee to prove on the balance of probabilities that firstly the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Worker claims he was unfairly dismissed by the Respondent due to his treatment and payments of salary were withheld. He claims that he was paid 600 euro net per week cash for 48 hours work for the period of his employment, but there is no record of the payments. He says he never received payslips furnished by the Respondent. The Worker is a non-national.

In the Supreme Court ruling in Martin v Galbraith [1942] 76 IRLT 94 Murnaghan J found that an employer could not have deemed to have made a contract which is illegal under statute. All income earned in the State is subject to the payment of income tax, pay related social insurance and other levies pursuant to the Taxes Consolidation Act 1997 as amended. This is a legal requirement and ignorance of the law is no excuse.

The income and hours worked by the Worker, is disputed by the company who say the Worker was employed for 3 half-days a week and was paid 146.40 weekly net. Payslips have been produced by the Respondent evidencing payments made. The payslips do not specify the hours worked and hourly rate paid, and no records of hours worked signed by the Worker has been produced. There is no record of overtime worked nor annual leave paid on the payslips. Generally, mechanics would be paid more than the wages set out for the time worked.

Evidence given at the hearing by the Respondent was that the employer paid one third extra pay in order to discharge annual leave. However, records produced by the employer do not accord with the evidence given.

I accept the Worker’s evidence that he was not paid monies due in the last 2 weeks of employment, and note there is no payslip for week ending 4th August 2017. I accept his evidence that he had no option but to seek alternative work due to the non-payment of wages which is a serious breach of his contract by the Respondent. Accordingly, I find that the Worker has been constructively dismissed pursuant to S6 of the Unfair Dismissals Acts 1977-2015.

The Worker is limited in his recovery of financial loss to income returned to the Revenue Commissioners of 146.40 euro net weekly. I recommend payment of 4 weeks wages of 146. 40 euro net, total 585.60 euro compensation for dismissal, together with arrears of wages of 610 euro, unpaid overtime of 175 euro, one bank holiday of 50 euro, and payment in respect of annual leave of 365.20 euro.

CA-00014054-006

The complaint is well founded and I direct payment by the Respondent of 585.60 euro which is 4 weeks remuneration as compensation for the breach to the Complainant.

CA-000145054-007

I find the Worker was constructively unfairly dismissed and recommend payment of 4 weeks wages of 146. 40 euro net, total 585.60 euro as compensation for dismissal, together with arrears of wages of 610 euro, unpaid overtime of 175 euro, one bank holiday of 50 euro, and payment in respect of annual leave of 365.20 euro, total 1,785.80 by the Respondent.

Untaxed income, Martin v Galbraith, recovery limited to taxed income