Complainant

Respondent

Parties

Barry Crushell

Aperture Recruitment Partners Limited Aperture Partners

Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Mary Seery Kearney HR Brief Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018494-002

13/04/2018

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

CA-00018494-003

13/04/2018

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

CA-00018494-004

13/04/2018

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

CA-00018494-005

13/04/2018

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

CA-00018494-006

13/04/2018

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

CA-00018494-007

13/04/2018

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

CA-00018494-008

13/04/2018

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

CA-00018494-009

13/04/2018

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

CA-00018494-010

13/04/2018

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

CA-00018494-011

13/04/2018

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

CA-00018494-012

13/04/2018

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

CA-00018494-013

13/04/2018

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

CA-00018494-014

13/04/2018

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

CA-00018494-016

13/04/2018

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

CA-00018494-017

13/04/2018

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

CA-00018494-018

13/04/2018

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

CA-00018494-019

13/04/2018

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

CA-00018494-020

13/04/2018

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

CA-00018494-021

13/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00018494-022

13/04/2018

CA 18949 -02 Payment of Wages Act, 1991

The complainant was not paid for the last eleven days he worked for the Respondent. He is due         € 1521.74 for the dates 1st – 11th April.

CA 18949- 03 Payment of Wages Act, 1991

The complainant was not paid commission. The complainant had an agreement with the respondent that he would be paid 20% of anything billed and paid, on an annualised basis between €70K and 120K and 35% of anything above € 120k up to a max of double his base salary. The sum of €6,200.00 is due and owing to the complainant by the respondent.

CA 18949-04 Payment of Wages Act, 1991

The respondent unlawfully deducted the sum of € 260.50 for a law book purchased by the complainant. The custom and practise was that an employee would be reimbursed for any legal text purchased. The book is still in the possession of the Respondents.

The respondent unlawfully deducted the sum of € 27.00 in relation to the purchase of an Employment Law book. The sum was originally paid and was then deducted from the complainant’s final payment.

CA 18949-06 Payment of Wages Act, 1991

€17.69 deduction was made for a Stationary design expense. The sum was originally paid to him but was then deducted at the end of his employment.

CA 18949-07 Payment of Wages Act, 1991

€7.50 deduction was made for registered post. This was originally paid in January and was then deducted for his final payment in April, 2018.

CA 18949-08 Payment of Wages Act, 1991

€7.50 deduction for registered post. This was originally paid in January and was then deducted for his final payment in April, 2018.

CA 18949-09 Payment of Wages Act, 1991

€18.00 deduction for website hosting AP Solicitors. This was paid in February and was deducted from his final payment in April, 2019.

CA 18949-10 Payment of Wages Act, 1991

€ 8.70 in relation to a Logo was deducted. The Law Society requested a Logo. This was approved and was paid in February, 2018 and was deducted from his last payment in April, 2019.

CA 18949-011 Payment of Wages Act, 1991

€ 250 paid to the complainant in February, 2018 for his attendance at the global young leader summit was deducted in April, 2018 from his final payment. AP Partners paid for his flights and accommodation.

CA 18949- 012 Payment of Wages Act, 1991

€36.87 in relation to Adobe software was paid to the complainant in February 2018 and was deducted from his final payment in April, 2018.

CA 18949 -013 Payment of Wages Act, 1991

€ 684.93 in relation to a CPD event on the Non-Fatal Offences Against the Person Act in January, 2018 was deducted from the Complainant’s salary as a punitive measure.

CA 18949 -014Payment of Wages Act, 1991

€246.00 in relation to the recovery of deleted e-mails was deducted from the complainant’s final payment in April, 2018.

CA 18949 -016 Payment of Wages Act, 1991

The complainant was not paid for unused holidays 31.12.2017

CA 18949- 017 Payment of Wages Act, 1991

Commission element of holiday pay owed at the end of 2017 has not been paid to him.

CA 18949- 018 Organisation of Working Time Act, 1997

The complainant claims he did not get the requisite rest period between working days.

CA 18949 -019 Organisation of Working Time Act, 1997

The Complainant claims he did not get a daily rest period.

CA 18949-020 Organisation of Working Time Act, 1997

The Complainant claims he worked 50-60 hours per week in breach of the Act.

CA 18949 -021 Terms of Employment (Information) Act, 1991

The complainant was not given any notice, as is required by the Act, in relation to the changes in the terms of his employment.

CA 18949 -022 The European Communities (Road Transport) (Organisation Of Work Time Of Persons Performing Mobile Road Transport Activities) Regulations 2012, Statutory Instrument Number 36 Of 2012

Withdrawn

CA 18494 -002

€1521,74 based on days worked in April between 1st – 11th April

The payslip of 31st March has a gross pay of €6,675.39 – the Complainant’s monthly pay was €4583.33 – that is a difference of €2,092 which equates to 9.89 days – equating to the April payment plus the holidays owed for 2018 less his four days holidays taken. Therefore, the pay element was made and no oversight took place.

CA 18494 -003

The claim is for €6,200.00 based on a commission claim. The complainant is commission based on a non-secured figure. A meeting was arranged with the Complainant to discuss and explain this and other monies withheld with him, but on legal advice and preferring instead to issue proceedings with the WRC the Complainant refused to attend, even when permitted to have his solicitor in attendance with him.

The Complainant never invoiced for this amount, which he knows was the usual practice, and also knows that no invoice would have been liable until the monies were secured.

On the commission spreadsheet which reflects the agreement in relation to commissions due and owing, the statement very clearly says “ would earn 20% of anything billed and paid on an annualised basis…”, the key words being billed and paid – it is a condition precedent to commissions falling due that the client is invoiced and the invoice is paid without clawback potential before the monies are released to the employee.

The Respondent has no issue making this payment, however, they will not do so until May 31st 2019 for the following reason:

The Complainant had a threshold to reach over which commissionable payments are to be made.   This threshold is €60,000

The Complainant took it upon himself, outside of his authority, to sign terms and conditions with one of the Respondent’s clients that leaves in jeopardy over €82,500 in income, the first €60,000 of which is the threshold amount of the Complainant. The Terms and Conditions signed are prejudicial to the Respondent, would never have been agreement by the Respondent Directors and the Respondents have already suffered losses as a consequence of these terms and conditions. It was when the client sought to lean on the content of these terms and conditions that their existence was made known to the Respondents. This was done secretively and without authorisation.

Only on the 31st May 2019, will the remaining fees bound under these terms and conditions be safe. If they are clawed back under the terms signed up to by the Complainant, the Respondents will have no choice but to issue proceedings against the Complainant for his negligence and breach of fiduciary duty to his employer.

As the bulk of the fees at risk constitute the threshold over which the Complainant becomes eligible for commission, and should these fees fall, the Complainant is not eligible for commission under his contract, then the Respondent reserves the right to withhold the payment until these fees from this client are secured in accordance with the contract.

CA 18494 – 004

€260.50 deductions for Employment Law Book

The Complainant was given the option of keeping the lawbook or being recompensed for it, the Complainant retained the law book.

CA 18494 – 005

€27 deduction for Irish Employment Law Book

The Complainant was given the option of keeping the lawbook or being recompensed for it, the Complainant retained the law book.

CA 18949 – 006

€17.69 deduction for Stationary design expense

This is a stationery design in respect of AP Solicitors, a business development undertaken without the express permission of the Respondents and therefore not a sanctioned expense. The Respondent’s had their own contractor to carry out such work which the Complainant chose not to use, this was not necessary.

The possibility of AP Solicitors had of course been discussed, however, the Respondent had given very clear instructions that no such activities were to be undertaken without an application to the Law Society and proper insurances. During the course of their complaint to the Law Society, the Respondent’s discovered that no application had ever been made to the Law Society in relation to AP Solicitors, they did however, receive an invoice for professional indemnity insurance.

CA 18949 -007

€7.50 deduction for Registered post

The Respondents deny that this was in relation to a sanctioned action for the benefit of or in service to the Company and that any evidence was provided by the Complainant to demonstrate otherwise.

CA 18949 -008

€7.50 deduction for registered post

The Respondents deny that this was in relation to a sanctioned action for the benefit of or in service to the Company and that any evidence was provided by the Complainant to demonstrate otherwise.

CA 18949 -009

€18.00 Deduction for website hosting AP Solicitors

This is acknowledged by the Complainant that this is in respect of AP Solicitors within his own document objecting to its non payment, a business development undertaken without the express permission of the Respondents and therefore not a sanctioned expense. The Respondent’s had their own contractor to carry out such work which the Complainant chose not to use, this was not necessary.

CA 18949 - 0010

€8.70 deduction for AP logo solicitors

This is acknowledged by the Complainant as being the logo design in respect of AP Solicitors within his own document objecting to its non payment, in the context of his application to the Law Society of Ireland, an application undertaken without the express permission of the Respondents and therefore not a sanctioned expense. The Respondent’s had their own contractor to carry out such work which the Complainant chose not to use, this was not necessary.

CA 18949 -011

€250 deduction for Ireland Funds Membership

This is a yearly membership of the Ireland Funds particular to the individual and not the company. This membership survives the Complainant’s employment with the company and is therefore not an expense for which the company is liable.

CA 18949 – 012

€36.87 deduction for Adobe expenses

This was not a vouched expense and no discussion was held with the Respondents in respect of this claim, despite the Respondents arranging such a meeting.

CA 18949 - 013

€684.93 Lawyers CPD Club event

The Respondents accept that if this is indeed demonstrated to be in connection with the Lawyers CPD Club event then the Respondents are liable as this is the intellectual property of the Respondents. This is the intellectual property of the Respondent which the Complainant is now violating by arranging events, holding the contact details of the members (a DATA BREACH under current DATA Law) and utilising.   This claim will be utilised as evidence of the Respondents position in respect of this “entity” and of the Complainant’s acknowledgement of this fact as he himself asserted that this was a recoverable expense in respect of his employment and association with the Respondents.

The Complainant in his correspondence with the Respondent’s Solicitors asserts his rights to this entity and that this is work carried out by him in his personal capacity during his own time.

The Complainant cannot assert that this is his entity and at the same time claim that he worked 60 hours per week for the Respondents.

If the Complainant’s claim to this entity is upheld, then all time associated with this entity is his own and therefore this contradicts his claim to excessive working hours and this expense is not due to him.

CA 18949 - 014

€246 IT Recovery Costs

The Company IT providers flagged a mass deletion on the 29th March 2018 and charged the Respondents in respect of this operation.

The subsequent investigation demonstrated that the mass deletion was in respect of the Complainant’s emails, this is an ongoing investigation.

This is a cost which is ultimately attributable to the Complainant either in this forum or elsewhere.

CA 18949 – 015

Holidays owed/non-payment of holidays owed at the end of 2017 as a pay matter

The Complainant was paid holiday pay of 6.17 days up to 11 April (i.e. 3.367 months @ 1.833 days per month) which left an additional 2.17 days to be paid (i.e. €459.64) at the time of his departure.

CA 18949 -016

Commission element of holiday pay owed at the end of 2017

The method of calculation of commission pertaining to the Complainant does not relate to basic pay.

The Complainant was not due any commission in respect of 2017 as he failed to reach his targets. It was as an acknowledgment of his contribution to the ongoing development of the business that he was given a bonus to reward him in this regard.

Notwithstanding the above assertion, should the Adjudicator find that holiday pay in respect of commissionable earnings was in fact due the Complainant is statute barred from making any claim in respect of any period outside of Q4 of 2017 in accordance with Section 6(4) of the Payment of Wages Act 1991.

CA 18949 – 017

The Complainant claims he did not get a daily rest period

The Complainant was entirely in charge of his own working time and could take his daily rest period at his own discretion.

The Respondent offices are open plan and communal.

The Complainant was observed leaving for lunch regularly.

It was and is customary for the company to take a lunchbreak daily between 1pm and 2pm.

The Complainant has failed to quantify this claim, while the Respondents may well have failed in their obligation to maintain a time sheet or clock in system, there remains an obligation on the Complainant to quantify his claim with specificity to its content.

It defies belief that the Complainant could be asserting that he was obliged to work every day without either rest periods of a 30 minute period and to work 13 hour days every day of his employment. It is vehemently denied by the Respondent that this was the case.

CA 18949 – 018

The Complainant claims he did not get the requisite rest period between working days

The Respondent Directors work in the same communal office as the Complainant.   Their working hours tended to be within the time span of 8am to 8pm. At no point did they observe the Complainant working continuously between those time frames.

The Complainant has failed to quantify this claim and while the Respondents may well have failed to oblige the Complainant to keep a time sheet or clock in system, there remains an obligation on the Complainant to quantify his claim with specificity to its content.

It defies belief that the Complainant could be asserting that he was obliged to work every day without either rest periods of a 30-minute period and to work 13 hour days every day of his employment. It is vehemently denied by the Respondent that this was the case.

CA 18949 – 019

The Complainant claims he worked 50-60 hours per week

The Complainant first asserts that his working week was 50 hours per week on his claim form.

Latterly he then claims he worked 50-60 hours per week while at the same time claiming that he was not provided with the requisite rest periods between working days.   If the Adjudicator were to accept the working week at 60 hours per week, an allegation that is denied by the Respondents, this would still afford the Complainant the requisite minimum 11 hour rest period between working days.

The Complainant has failed to quantify this claim and while the Respondents may well have failed to oblige the Complainant to keep a time sheet or clock in system, there remains an obligation on the Complainant to quantify his claim with specificity to its content.

It defies belief that the Complainant could be asserting that he was obliged to work every day without either rest periods of a 30 minute period and to work 13 hour days every day of his employment. It is vehemently denied by the Respondent that this was the case.

In general in relation to the Organisation of Working Time Complaint:

The Complainant had open access to the Respondent offices.

The Complainant worked from home on a Wednesday.

The Complainant was obliged to enter his appointments in the communal diary.   This was the method of record keeping in relation to holidays especially. On or about the 23rd March the Complainant deleted all of the entries relating to himself from the communal diary thereby rendering the Respondents unable to demonstrate

The Complainant’s appointment schedule to demonstrate his working hours, and

The Complainant’s holidays taken.

It is unreasonable that the Complainant, having engaged in data destruction, would now seek to capitalise on a prejudice he caused to the Respondents by claiming a lack of record keeping on the part of the Respondents.

Further the Respondents are aware of at least one occasion when the Complainant was engaged in an “extra curricular” activity which the Complainant undertook within the office, locking the Respondent Directors out of the office, and apologising for his compromising activities upon being caught “in flagrante delicto” so to speak.

The Respondents did not oblige the Complainant to keep timesheets or operate a clock in system as they considered him in charge of his own time.

The Complainant has made an assertion regarding Lawyers CPD which he asserts in legal correspondence to be his intellectual property as this, he asserts, is work he undertook in his own capacity outside of working hours. If this assertion is true then the Complainant cannot also assert that he was obliged by the Respondent to work 50-60 hours per week nor that he didn’t get rest breaks between working days as these two assertions are contradictory.

The Complainant wrote articles extensively and prolifically, publishing them on LinkedIn to his own profile, promoting his own brand, that being himself.   This was out of the control of the Respondents and published on his own LinkedIn Account, and presumably took time.

It is respectfully submitted that the Complainant is a large Solicitors firm trained Solicitor, who represented himself as the Inhouse Legal Counsel of the Respondents.   In his letter of 11th June within the legal correspondence he asserts the fact that the Respondents are not either lawyers or barristers.

In such circumstances, it was incumbent upon him to advise the non-legal recruitment practitioners, as the Directors are, of the legal requirements attending employment. In fact, these lay litigant Respondents relied on him to be the legal advisor in respect of employment, even so far as to fund his education as an employment law practitioner with the Kings Inns.

The Complainant failed to so advise and now seeks to capitalise on their disadvantage, a disadvantage caused by his failure in his duty of care, to his own advantage.

This is highly distasteful opportunism and an abuse of the venue of the Workplace Relations Commission to intimidate the Respondents into surrendering their claims in respect of their Intellectual property.

CA 18949 - 021

The Complainant claims there was a change to his terms and conditions of employment.

It is denied that any change was made in respect of the Complainant’s employment contract without his involvement and consent.

In fact, a change in his work practices is the very basis of the change in his commission structure, which the Complainant is relying upon to make his claim.

The only change which was made was to Complainant’s contract of employment was to benefit him in the receipt of commission in circumstances where he had not reached the threshold to receive commission and the Respondents changed his contract to enable a structure by which he was able to achieve a commissionable income earlier than would otherwise have been the case.

CA 18949 - 022

Withdrawn

LAW

THE ORGANISATION OF WORKING TIME ACT 1997;

The Complainant claims that he was not afforded rest breaks, daily rest periods

3.—(1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces.

(2) Subject to subsection (4), Part II shall not apply to—

(a) a person engaged in—

(i) sea fishing,

(ii) other work at sea, or

(iii) the activities of a doctor in training,

(b) a person—

(i) who is employed by a relative and is a member of that relative's household, and

(ii) whose place of employment is a private dwelling house or a farm in or on which he or she and the relative reside, or

(c) a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment.

Directive 2003/88/EC of the European Parliament and of the Council of 4th November 2003 concerning certain aspects of the organisation of working time provides as Article 17: in respect of DEROGATIONS AND EXCEPTIONS

“With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6, 8 and 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:

(a) managing executives or other persons with autonomous decision-taking powers;

(b) family workers; or

(c) workers officiating at religious ceremonies in churches and religious communities.”

It is clear that in the minds of the legislators when prescribing the law in relation to working time, that there was an intention to exclude those at the helm of organisations and who were in control of their working time and had the authority of autonomous decision taking from the provisions of the legislation.

It is submitted that the Complainant is an employee who fits directly within this prescription. The Complainant was provided with the power to make autonomous decisions. No one managed him. The business that he contracted to join was a growing business, within which he was envisaged to reach full Director status, directing a legal and regulatory practice. As a consequence of this growing status there were no demands on the working week that made working outside of the organisation of working time act provisions a necessity.

No records were kept in respect of the Complainant for a number of reasons:

The Complainant was of such a standing and seniority in the company that it was not envisaged that he would require monitoring.

Where record keeping was automatic the Complainant destroyed these records.

The Respondent business at the material time of the Complainant’s employment consisted of four directors – a Non Executive Director who by definition is absent from the day to day running of the business, the two Executive Directors that now comprise the Respondents and the Complainant. All three, the two Directors and the Complainant shared an office, while the two Directors were appreciative of an apparent strong work ethic, they never observed a failure to take lunch (breaks) or a pattern of long working hours such that it even raised their curiosity.

As soon as the workload increased the two Executive Directors stepped in to assist and then immediately employed others to assist, thereby negating the need for the Complainant to work in excess of the work time requirements.

The Complainant was the legal advisor, specialising in an Employment Advisory service on whose expertise the company relied. He neglected, failed in his duty to advise the company of this necessity and now seeks to exploit that negligence to his own advantage.

The Complainant was the legal advisor, specialising in an Employment Advisory service and a fully qualified solicitor. As such he was not a shrinking violet such that he was intimidated from raising the issue if somehow, he was working such long hours and was in concern for his own wellbeing. In fact, he never raised the issue except in the context of making a claim post employment.

It is submitted that the obligation for the Respondent to maintain records at Section 27 of the 1997 Act, and the reverse onus burden of proof, does not itself release the Complainant from all duties in respect of making out his claim.

In DWT1583 Erac Ireland Limited and Eddie Murphy, a determination of the Labour Court 22nd September 2015 (Appendix the Court endorsed their previous decision that of Jakonis Antanas and Nolan Transport [2011] 22 E.L.R. 311 where the Court held in relation to the application of that burden of proof subsection as follows:

“The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non­ compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Complainant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland {1963} A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to "suggest a reasonable possibility".

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the Complainant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the Complainant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the Complainant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the Complainant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the Complainant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant. If the respondent fails to discharge that burden the Complainant will succeed.

This requires the Respondent to satisfy the Court that it is more probable than not that the Act was complied with in respect to the matters complained of by the Complainant. If the Respondent does not do so or if the probabilities are equal the Complainant will succeed. That is a reversal of the normal rule of evidence which requires that he who asserts must prove.”

It is respectfully submitted that there is an onus on the Complainant, as a matter of basic fairness, to set out his claim with sufficient particularity so that the Respondent can know and quantify the extent of the claim.

The Complainant fails to do this.

Instead in actual fact he contradicts himself in his own claim form. In the first instance he states that he worked 50 hours per week. He latterly states that he worked 50-60 hours per week, denies he has a contract of employment, though he references it in an email dated 3rd April, the contract states that the normal office hours are: 9am – 5.30pm – which constitutes a 42.5hour week. The claim form does not set out the claim and merely makes a bald assertion regarding his working day.

The Complainant sets out a reference period of October 2017 – March 2018. It is significant that during these times Christmas occurred, the Complainant was afforded the opportunity to visit Washington DC and he gave his notice on the 14th March 2018 and did not enter the office again after the 23rd March. Therefore his reference period includes times when could not work and times when he was placed on garden leave therefore undermining the credibility of the claim and prejudicing the Respondent with regard to their entitlement to fairness in procedure.

It is respectfully submitted that in light of the determination of the Labour Court the Complainant has not met the threshold of his burden to make out his claim, it is vague in its assertions, and therefore his claims under the Organisation of Working Time Act fail for want of particularity.

THE TERMS OF EMPLOYMENT INFORMATION ACT 1994;

The Terms of Employment Information Act is intended, according to its originating directive Council Directive 91/533/EEC, to provide employees with “improved protection against possible infringement of their rights” and to create “greater transparency” in the labour market.

The Complainant does not appear to deny that he received a contract of employment and indeed references same in an email to his employer dated 3rd April.

The claim made in this regard appears to be that he alleges his duties were increased incrementally and that his job title was changed, and this was never reflected in a written format.

It is respectfully submitted that in accordance with a growing business and a start-up environment, duties and obligations increase in accordance with the growing workload and is consistent with the Complainant’s role being the “Development of a Legal and Regulatory recruitment desk”.

The contract of employment notes that the Complainant is on a trajectory of becoming a Director in the fullest sense of that position, should he establish a viable legal and regulatory practice. This is consistent with the increased responsibilities cited by the Complainant.

The job title is that of Associate Director, therefore his job title did not change and was so since his commencement in April 2016.

The Complainant himself states that he was informed with regard to commission structures, therefore it is not clear what exactly the Complainant is complaining is at variance with the obligations imposed under the Terms of Employment Information Act as no changes, except those advised on with respect to his commission structure in October 2017, occurred that engaged the obligations of the Terms of Employment Information Act.

It is respectfully submitted that the Complainant himself advocated for a career trajectory within the company that envisaged greater and increasing responsibilities until such time as he was made a shareholder and Director of the Company.   This aspiration was reflected in the various permutations of the original contract of employment and its ultimate agreed form.

The vision for the Complainant’s position and role within the company was captured in his contract of employment, and always envisaged that he would lead a legal recruitment aspect of the business.

The Complainant himself represents himself to the world via his LinkedIn account as follows:

“Director and Legal Counsel, AP Partners Group, April 2016 – 2018 Founded the legal recruitment and employment law advisory practice of Aperture Partners, in addition to taking a significant role in the development and launch of the London offering. Gave accurate and timely counsel on numerous commercial and employment law matters to internal and external stakeholders”

It is respectfully submitted that if the Complainant’s claim is an assertion of fact then this statement is false and if this statement is false, then the Complainant’s credibility is in doubt.

It is also of note that he failed to give timely counsel to the internal stakeholders with regard to the Organisation of Working Time Act!

It is denied that any change was made in respect of the Complainant’s employment contract without his involvement.

The only change which was made was to Complainant’s contract of employment was to benefit him in the receipt of commission in circumstances where he had not reached the threshold to receive commission and the Respondents changed his contract to enable a structure by which he was able to achieve a commissionable income earlier than would otherwise have been the case.

SUBMISSION

It is respectfully submitted that the background to this claim is significant.

The Complainant came on board with the Respondent company with a view to proving himself and becoming a Director with interest in the company in the form of share capital and equity.

The Complainant was permitted to work at his own pace on his own initiative. He was trusted and valued.

The Complainant did not achieve the targets expected from his position but in order to keep him motivated the Respondents in good faith reorganised or gerrymandered the Complainants commission arrangement to ensure that he was eligible for a bonus in the hopes of keeping him motivated and in recognition of the work he had carried out.

The Complainant was supported with competent and legally trained staff to assist him with his workload.

The Complainant, for his own reasons and quite within his entitlements, gave his notice in March, verbally initially and then this was followed up with notice in writing when requested.

The Complainant embarked on unlawful activities in relation to intellectual property and data download, gathering and destruction and was therefore asked to remove himself from the business premises.

Despite this the company paid him as usual at the end of March, and acknowledged that payments were due and owing for April in respect of holiday entitlement and pay.

With regard to expenses claimed, a review was conducted of all expenses paid and claimed, and arising from this review expenses were withheld from payment as they arose from (1) unauthorised expenditure; (2) property in the form of law books which the Complainant retained for his own use and (3) expenditure regarding an entity the ownership of which is in dispute between the parties (the Lawyers CPD Club).

With regard to commission, the Complainant left the company before the expiry of the first quarter of the year, he asserted a commission claim without invoice against unsecured fees contrary to custom and practice.

The Complainant did not wait until the time for payment had expired in which to make a claim to the WRC. Instead he refused to meet with the company while remaining under contract, he did not exhaust any internal procedures, or instigate any procedures to which he had full knowledge such as grievance under Statutory Instrument 146 of 2000 and threatened the company with litigation throughout. It is respectfully submitted that no wonder the Respondent did not make any further payments to him.

The Respondents quickly discovered that the Complainant was initiating contact with their clients, and that he was continuing to engage in the Lawyers CPD club. The Respondents, quite within their rights, notified the Complainant of his breach of contract, and he denies same, this is now the subject of litigation between the parties.

The Complainant in the within claim makes a number of allegations in relation to his working time and break time entitlements alleging that the Respondents are in breach of their obligations.

It is respectfully submitted that:

The Complainant cannot assert that he is an aspiring director and solicitor and at the same time claim that he was a humble worker controlled by his employers, voiceless in the face of health and safety breaches under the act.

The Complainant cannot assert publicly that he gave timely and accurate employment advice internally, as a Director with an employment advisory remit, educated at the expense of the Respondent, while at the same time exploiting what he considers to be a breach of their record keeping obligations.

Further, as the IT support services have confirmed the Complainants destruction of data owned by the Company, including the IT based diary entries, and then claim that the company does not have records to support that he took his allocation of holiday entitlement.

It is of note that the Complainant does not make a claim for Public Holidays, it is respectfully submitted that if he were so overworked he would have worked bank holidays also and made a claim in that regard. This goes to the Complainant’s credibility in making his claims under the Organisation of Working Time Act.

Also undermining the credibility of the Complainant is his assertion that he worked excessive hours in the very weeks that he was on garden leave and during which the Christmas period occurred.

It is respectfully submitted that these claims are vexatious, calculated to intimidate the Respondents from asserting rights in respect of their business and its intellectual property and designed to bamboozle them even in respect of the manner of its construction, going as it does to 20 individual claims.

Lastly in respect of data subject access: The Complainant has claimed that the Respondents have not complied with his data access request. It is respectfully submitted

That nothing has been relied upon by the Respondents in their defence of this claim that was not already provided to the Complainant under the data access request, and therefore the Complainant has not be prejudiced by the failure as yet on the part of the Respondents to unearth every piece of documentation owed to him under such request.

That the Complainant exhibits proof that he engaged in the forwarding of emails from his business address to his personal email address at the material time that the Respondent alleges that he did so and within his own documentation supplied to the WRC.

CA 18949 -02 Payment of Wages Act, 1991

The complainant alleges that he was not paid for the last eleven days he worked for the Respondent. He states that he is due €1,521.74 for the dates 1st – 11th April. The respondent set out in details the figures paid to the complainant. It is clear from those figures that the complainant is not due any monies. The claim is not well founded and accordingly fails.

CA 18949- 03 Payment of Wages Act, 1991

The complainant states that he was not paid commission. From the documentation submitted it is clear, that the complainant had an agreement with the respondent that he would be paid “20% of anything billed and paid on an annualised basis between €70K and 120K and 35% of anything above € 120k up to a max of double his base salary”. The complainant states, that the sum of €6,200.00 due to him was unlawfully deducted by the respondent.

It is clear from the agreement, that commission would be paid on two conditions. Firstly, that the sum was billed to the client and secondly that it was paid. The complainant invoiced three firms between January, 2018 and March, 2018 (Quarter 1). The total amount of the invoices was €101,000.00. The invoices were not submitted. Furthermore, no evidence was adduced that these invoices were ever paid. The agreement between the parties is conditional on the invoices being paid. It is on that basis that I find that the claim is not well founded and must fail.

CA 18949- 04 Payment of Wages Act, 1991

The complainant alleges that the respondent unlawfully deducted the sum of €260.50 for a law book purchased by the complainant. He states that the custom and practise was that an employee would be reimbursed for any legal text purchased. He submitted a receipt for the book in December, 2017 and it was paid accordingly. The amount was then deducted in March,2018. The complainant states that the book is still in the possession of the Respondents. The Respondents state that the book is in the complainant’s possession.

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

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The respondent states that the complainant took the book with him when he left. If that is the case and the respondent had an obligation to notify the complainant that they intended to recoup the value of the book “in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction”. The respondent failed to provided evidence that they did furnish the complainant with the details of the deduction. It is for that reason I find that the claim is well founded and accordingly succeeds. I award the complainant the sum of €260.50.

CA 18949-05 Payment of Wages Act, 1991

The complainant alleges that the respondent unlawfully deducted the sum of €27.00 in relation to the purchase of an Employment Law book. He submitted the expense in January,2018 and it was reimbursed. The amount was deducted from his March,2018 payment. Each party alleges that the other has possession of the book. As in the previous claim CA 18949-04, no evidence was adduced that the respondent furnished the complainant with details of the proposed deduction in advance. On that basis I find that the claim is well founded and accordingly succeeds. I award the complainant the sum of € 27.00

CA 18949-06 Payment of Wages Act, 1991

The sum of €17.69 was deducted from the complainant’s March 2018 payment. He submitted the expense in December,2017. It was paid in January 2018 and was then deducted in March,2018. The sum was for a Stationary design expense. The sum was originally paid to him but was then deducted at the end of his employment. The respondent again failed to furnish the complainant with details of the deduction in advance of same. On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of € 17.60.

CA 18949-07 Payment of Wages Act, 1991

The complainant alleges that the sum of €7.50 was deducted in relation to registered post. The expense was submitted in December,2017. It was paid in January and was then deducted for his final payment in March,2018. The respondent failed to furnish the complainant with details of the deduction in advance of same. On that basis the complaint is well founded and accordingly succeeds. I award the complainant €7.50.

CA 18949-08 Payment of Wages Act, 1991

The complainant alleges that the sum of €7.50 was deducted in relation to registered post. The expense was submitted in December,2017. It was paid in January and was then deducted for his final payment in March, 2018. The respondent failed to furnish the complainant with details of the deduction in advance of same. On that basis the complaint succeeds.

CA 18949-09 Payment of Wages Act, 1991

The complainant submitted an expense for €18.00 in relation to website hosting for AP Solicitors, in December, 2017. This was paid in February,2018 and was then deducted from his final payment in April, 2018. The respondent states that it was deducted from his final payment due to the fact that it was not a sanctioned expense. One wonders, if that is the case, why it was paid to him in the first place. In any event the respondent failed to furnish the complainant with details of the deduction in advance of same.  On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of      €18.00.

CA 18949-10 Payment of Wages Act, 1991

The complainant alleges that the sum of € 8.70 in relation to a Logo was unlawfully deducted from his payment for March,2018. The expense was approved and was paid in February,2018 and was then deducted from his last payment for March, 2018. The respondent states the expense was not a sanctioned expense and that the complainant made the application without the express knowledge of the Respondents. The respondent failed to furnish the complainant with details of the deduction in advance of same. On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of € 8.70.

CA 18949- 011 Payment of Wages Act, 1991

The complainant submitted an expense in January,2018 in the amount of €250 in relation to the “Ireland Funds Membership”. It was approved and paid in February and was then deducted in the March,2018 payment.

The respondent states that this is a yearly membership of the Ireland Funds particular to the individual and not the company. This membership survives the Complainant’s employment with the company and is therefore not an expense for which the company is liable. I accept the Respondent’s submission that the complainant still has the benefit of the membership however having paid the expense submitted, albeit in error, the respondent failed in its obligation to notify the complainant in advance of the proposed deduction. On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of €250.00

A 18949 -012 Payment of Wages Act, 1991

The complainant states that the sum of €36.87 for Adobe, submitted as an expense in February, 2018 was approved and paid and was then deducted in the payment for March, 2018.

The respondent states that this was not a vouched expense and no discussion was held with the Respondents in respect of this claim, despite the Respondents arranging such a meeting.

The respondent failed in its obligation to notify the complainant in advance of the proposed deduction. On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of € 36.87

CA 18949 -013 Payment of Wages Act, 1991

The complainant alleges that the sum of €684.93 in relation to a Non- Fatal Offences Against the Person, Act CPD lecture was deducted from his final payment as a punitive message. However, the Complainant in his correspondence with the Respondent’s Solicitors on the 11th June, 2018 asserts his rights to this entity and that this is work carried out by him in his personal capacity during his own time. Based on the complainant’s own correspondence it would seem that he himself asserts that he carried out this lecture on his own time and in his personal capacity. Therefore, he cannot now assert that the sum of €684.93 arising directly out of the work he did for the CPD is money properly payable by the respondent to him. It is on that basis I find that the claim is not well founded and accordingly must fail.

CA 18949 -014 Payment of Wages Act, 1991

€246 in respect of IT Recovery Costs was deducted from the complainant’s final payment in April, 2019.

The respondent states that their IT providers flagged a mass deletion on the 29th March 2018 and in order to recovery the files they incurred a cost. A subsequent investigation demonstrated that the mass deletion was in respect of the Complainant’s emails, this is an ongoing investigation.

Despite the fact that the IT file recovery costs were directly attributable to the actions of the complainant, the respondent still has an obligation pursuant to Section 5 of the act to notify the complainant in writing of the particulars of the act together with the amount of the deduction. They failed to do so. On that basis the complaint is well founded and accordingly succeeds. I award the complainant the sum of €246.00

CA 18949- 016 Payment of Wages Act, 1991

The complainant alleges that he is owed money in respect of holidays owed and non - payment of holidays owed at the end of 2017. The claim is not particularised. However, the respondent concedes that the complainant is owed 2.17 days amounting to €459.64. On that basis I find that the claim is well founded and the complainant is owed € 459.64.

CA 18949- 017 Payment of Wages Act, 1991

The complainant alleges that the respondent has failed to pay him “holiday leave payments including commission for calculation purposes, pursuant to the Organisation of Working Time, Act 1997. They failed to include commission when calculating appropriate holiday pay. There was no record available for me to determine how many days were owed”.

The Respondent states that the claim is in relation to the commission element of holiday pay owed at the end of 2017 and that the method of calculation of commission pertaining to the Complainant does not relate to basic pay. They allege that the Complainant was not due any commission in respect of 2017 as he failed to reach his targets.

Section 25(1) Organisation of Working Time Act, 1997, requires an employer to :

“maintain records, in a prescribed form, showing compliance with the Act. Failure to comply with this requirement, without reasonable cause, amounts to a criminal offence. However, no cause of action accrues to an employee by reason of his or her employer’s failure to maintain the requisite records.

Section 25(4) provides as follows: -

(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.

As states by the Labour Court in Nolan Transport v Jakonis Antanas DWT 1117

“The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut.

The burden on a Respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Complainant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet.

The complainant has failed to give any particulars of the claim. Therefore, I find that the claim is not well founded and accordingly fails.

CA 18949 -018 Organisation of Working Time Act, 1997

The complainant alleges that he did not get his daily rest period. Due to his daily work load he was unable to take his daily rest periods and he was never directed to do so.

The respondent states that the complainant has not particularised his claim.

As set out above the Labour Court decision in Nolan Transport v Jakonis Antanas DWT 1117 and in DWT1583 Erac Ireland Limited and Eddie Murphy makes it clear that the complainant has a duty to particularise the claim his is making. He has failed to do so. Therefore, I find that the claim is not well founded and accordingly fails.

CA 18949-019 Organisation of Working Time Act, 1997

The complainant alleges that he did not get breaks and was consistently working 10-12 hours per day and that there were no designated break times.

As set out above the Labour Court decision in Nolan Transport v Jakonis Antanas DWT 1117 and in DWT1583 Erac Ireland Limited and EddieMurphy makes it clear that the complainant has a duty to particularise the claim his is making. He has failed to do so. Therefore, I find that the claim is not well founded and accordingly fails.

CA 18949 -020 Organisation of Working Time Act, 1997

The complainant alleges that he was required to work more than the maximum permitted hours. He states that he regularly work a 12 hour day, five days a week.

As set out above the Labour Court decision in Nolan Transport v Jakonis Antanas DWT 1117 and in DWT1583 Erac Ireland Limited and Eddie Murphy makes it clear that the complainant has a duty to particularise the claim his is making. He has failed to do so. Therefore, I find that the claim is not well founded and accordingly fails.

CA 18949 -021 Terms of Employment (Information) Act, 1991

The complainant states that he was initially employed as a Legal Recruitment Consultant. He was subsequently given additional duties including marketing and social media duties and his title changed to ‘Director’ on the 1st January, 2018 however he was never given written notice of the change.

The respondent denies that there was any change to the complainant’s contractual duties without his involvement and his consent.

I find that even if the complainant was involved in and consented to the changes in the terms and conditions of his employment the respondent still has an obligation to formally notify him in writing. No evidence was adduced that they did so. I find accordingly that the claim is well founded. I award the complainant €500.00

 CA 18949 -022 The European Communities (Road Transport) (Organisation Of Work Time Of Persons Performing Mobile Road Transport Activities) Regulations 2012, Statutory Instrument Number 36 Of 2012

This claim was withdrawn.