Complainant

Respondent

Anonymised Parties

A Complainant

A Transport Company

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-00019584-001

05/06/2018

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

CA-00019584-002

05/06/2018

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

CA-00019584-003

05/06/2018

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

CA-00019584-004

05/06/2018

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

CA-00019584-005

05/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019584-006

05/06/2018

The complainant commenced employment with the respondent as a driver operator on 18 July 2016. He lodged a number of complaints with the WRC on 5 June 2018.

The complainant states that he was employed by the respondent on 18 July 2016 but he had agreed to the terms of employment on 6 July 2016 by signing a written statement of his main terms of employment. The complainant submits that he expected to receive a copy of his terms of employment in the following weeks or months. However, he did not receive same from his manager until 3 April 2018 following a number of requests. The complainant maintains that this deliberate act by the respondent resulted in him not being aware of some particulars relating to his job thus putting him in a vulnerable position and unable to protect his employment rights. The complainant states that by law a written statement of the terms of employment must be given to the employee not later than two months of commencement in the employment. The complainant states that when he raised a grievance regarding same, the answer from his manager Mr. F was that it was the complainant’s responsibility to request a copy of the written statement when he signed it on 6 July 2016.

The complainant states that according to his contract, he must be paid €115 after tax per shift and that he has been paid in that format from 18/07/2016 to 31/12/2017. The complainant submits that since 1/01/2018, the respondent has been paying him €113.50 before tax per shift (for working Monday – Friday) and €120 before tax per shift (for working Sunday). The complainant states that the respondent also introduced a subsistence for absence from normal place of work which is tax free and according to the Agreement between Revenue and the Irish Haulage Association (September 1996) reviewed in May 2017 covers just expenses of the drivers incurred in the performance of their duties and it cannot be regarded as an addition or a substitute for wages.

The complainant states that the new pay rates have been unknown to him until 30/01/2018 when he met the Operations Director who advised him of the new pay rates. The complainant contends that pursuant to the Terms of Employment (Information) Act 1994 there is a requirement on the employer to notify the employee in writing of the nature and date of the change no later than one month after the change takes effect. The complainant submits that the respondent has failed in its obligations in this regard. The complainant maintains that in response to a grievance he raised on the matter, he was told by Mr. F that he had been notified by e-mail regarding the changes by the payroll operator. The complainant submits that he does not accept this as proper and legitimate notification for changes in his terms of employment. The complainant states that he escalated the grievance to the Operations Director but did not receive any response.

The complainant also submits that the respondent reduced his holiday entitlement from 30 days (public holidays included) to 29 days without any notification and that he was paid for 29 days for the year 2017/2018 but that the company changed its mind and at a meeting on 17/05/2018 he was told by Mr. F that he actually has 30 days holiday entitlement for that holiday year and therefore will be paid for one more day.

The complainant argues that under the Industrial Relations Act, he is pursuing complaints in relation to the reduction in his gross wages, that he did not receive proper notification regarding changes to his terms of employment and the non-payment of premium pay for Sunday working.    

The respondent states that the complainant signed a copy of his contract on 6 July 2016 declaring that he had read the statement of his main terms of employment. The Director of the company stated that as soon as his office got a request from the complainant for a copy of his terms and conditions of employment, it was forwarded to him immediately but that he was unaware of any earlier requests.

In relation to the complainant’s rate of pay, the respondent states that the complainant was initially paid €115 per day net but that the complainant was given multiple notifications from 24 November 2017 and onwards of the company’s intention to change to a gross pay method. The respondent submits that the tax-free subsistence which the complainant receives is in line with Revenue and IRHA regulations.

In relation to holiday entitlements, the respondent submits that the holiday entitlement changed from 30 days to 29 days effective from 1 April 2017. The respondent submits that the complainant was given and paid his appropriate holiday entitlements.

In relation to Sunday working, the respondent states that the complainant’s contract states “your normal hours of work are as required taking into account the relevant statutory driving regulations”. Your current shift pattern is Sunday day time, Monday to Thursday pm. However, the respondent contends that it is subject to change depending on business requirements.

In relation to Sunday working additional payment, the respondent states that the complainant is currently paid €113.50 per day with an additional payment of 6.50 euro for working on Sundays.

The respondent states that there is no basis to the complainant’s claims under the Industrial Relations Acts and that it has complied with its obligations under employment legislation.

Terms of Employment (Information) Act, 1994.

Non-receipt of copy of Terms of Employment within 2 months of commencement with the company

Having examined the evidence on this matter, I find that while the complainant signed a copy of his terms of employment he was not given a copy of same after repeated requests until April 2018. In the circumstances, I find that the respondent is in breach of the Terms of Employment (Information) Act, 1994 in this regard.

The complainant also submitted that the respondent did not notify him of proposed changes to his terms of employment in relation to the gross pay method and consequently it is in breach of the above Act. I find that the respondent had sent notification in writing to staff in November 2017 including the complainant and therefore I dismiss this complaint.

Payment of Wages Act, 1991

I find that there was no loss of wages to the complainant when the company had the changeover to the gross pay method and accordingly I dismiss this complaint.

Organisation of Working Time Act, 1997  

In relation to Sunday working, the complainant received €115. After the changes implemented on 1 January 2018 and the new pay rate coming into force, €6.50 extra was paid for working Sundays. Accordingly, there is no breach of the Act in this regard.

While the complainant argued that he was not paid for his full holiday allocation in 2017/2018, I find no evidence to substantiate this claim and find that he was given his correct holidays and there is no breach of the Act in this regard.

Industrial Relations Acts

The complainant also pursued complaints under the Industrial Relations Act, in relation to the reduction in his gross wages, that he did not receive proper notification regarding changes to his terms of employment and the non-payment of premium pay for Sunday working.   Given that these matters are dealt with above, in my view it is inappropriate in the circumstances to make any recommendation in these matters.

Terms of Employment (Information) Act, 1994.

Based on the evidence presented, I find that the respondent is in breach of the above Act, in that, the complainant was not furnished with a copy of his terms of employment within two months of commencement with his employer. In this regard, I award €500 to the complainant in respect of said breach.