ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00015791

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 45A of the Industrial Relations Acts 1969, following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and disputes.

Background:

The Complainant was employed as a delivery driver for a restaurant and where he has raised a number of complaints against the Respondent with regard to minimum wage entitlements, payment of wages, receipt of payslips, breaches in statutory record keeping, failure to provide pay in lieu of notice, daily intervals at work rest breaks, holiday entitlements, public holiday entitlements and annual leave entitlements on cessation of employment under The Organisation of Working Time Act. The Complainant has also submitted a complaint that the Respondent has failed to provide him with written terms and conditions of employment, and that he was unfairly dismissed. The Complainant was not represented.

The Respondent has denied breaches of the various obligations and has denied that the Complainant was unfairly dismissed.

Summary of Complainant’s Case:

CA-00019153-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Complainant maintained that he did not receive the national minimum wage from the outset of his employment. He advised that he commenced employment on the 14th of January 2013 where he would have received €39 for 6 hours work one day a week. He maintained this amounted to €6.50 an hour which was below the minimum wage. He was seeking compensation for a non-payment of wages during his employment. The Complainant maintained that he would have sought to obtain a statement of his average hourly rate of pay from the Respondent in and around May 2017 but that he was not provided with this information.

CA-00019153-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant maintained that he was not paid the amount due to him or was paid less.

He maintained that when he came on duty each evening he would have been provided with €39 which he viewed as his wage. At the end of the evening’s work the Complainant submitted that he would have provided the Respondent with the cash he would have taken for deliveries, but he retained the €39 in addition to tips he received. He maintained that he was entitled to receive minimum of €55 per week as indicated in his payslips but he would have only received €39 as wages from the Respondent. Any further income would have been based on the tips he would have received. Notwithstanding the Complainant acknowledged that he would have accepted the payslips and the amounts shown in the payslips when he asked for same and never raised an issue with regard to being underpaid when he was in receipt of these payslips.

CA-00019153-005 Complaint under section 6 of the Payment of Wages Act, 1991- Payment in Lieu of Notice

The Complainant maintained that he was dismissed from his employment on the 24th November 2017 when he attended work and he was told by his manager that he was not to work that evening. He maintained that another driver had been rostered and therefore he was effectively dismissed by his manager that night when he was told to leave. He maintained that he tried to contact the director of the business that evening who was on leave but was unable to contact her and he received no further notice.

He therefore maintained that he was dismissed without notice on the 4th of November 2017 and he was entitled to his minimum notice and therefore he was wrongfully deducted a payment for his minimum notice.

CA-00019153-007 Complaint under Section 45A of the Industrial Relations Act, 1946- Payment of Wages Under Employment Regulation Order

The Complainant maintained that the Respondent has failed to pay him the minimum rate of pay as set out in a Employment Regulation Order. At the hearing the Complainant acknowledged that the nature of his employment was not covered under an Employment Regulation Order.

CA-00019153-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Daily Rest Break

The Complainant maintained that he did not get a daily rest break. However, at the hearing he acknowledged that he would have worked 6 hours a day and only worked only one day a week and therefore he would have received a daily rest period in excess of what was required under The Organisation of Working Time Act.

CA-00019153-009 Complaint under section 27 of the Organisation of Working Time Act, 1997- Rests and Intervals at Work

The Complainant submitted that he did not get rest breaks at intervals of work in accordance with the Organisation of Working Time Act. He maintained that he was required to work 6 hours on the days he attended work and there were no breaks provided to him.

The Complainant maintained that the Respondent failed to keep statuary employment records in accordance with the Organisation Working Time Act 1997. He maintained that the Organisation of Working Time Act records that were presented at the hearing by the Respondent were false. The Complainant maintained that the Respondent had experienced a WRC investigation and that the documents were presented to make it look like it was complying with the Act. He maintained that the signatures on the Organisation of Working Time records were not his and he further maintained there was differences in some of the signatures and equally that the signatures did not reflect his own signature nor was it spelt the way he would spell his name. He said he would normally sign his name with a full spelling of his surname and the records presented did not represent his signature. The Complainant also contended that records noted his attendance on the days he was on annual leave which further supported his assertion that they were not accurate. The Complainant submitted that the true record of his attendance would be his social welfare forms which were signed jointly by himself and the Respondent and these records, which he submitted, demonstrated the inaccuracies on the working time records submitted by the Respondent.

CA-00019153-010 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

The Complainant submitted that he did not receive his annual leave entitlements.

At the hearing the Complainant acknowledged that he would have received 4 days annual leave in 2017 and he was not sure as to what other leave he had entitlement for other than he believed he did not receive his full entitlement for annual leave.

The Complainant maintained that he was not paid for the 4 days annual leave. He submitted that he only received payment on the evenings he worked which amounted to the float he received at the start of his shift. He contended that if he did not attend work when on annual leave he did not get a payment. He further maintained that the working time records presented by the Respondent at the hearing were inaccurate and had not been signed by him. He contended the annual leave he took was not recorded on the working time records whereas the Respondent has signed his attendance sheets for his social welfare payments which did properly record the annual leave he took.

CA-00019153-011 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

The Complainant maintained that he did not receive his public holiday entitlements. However, at the hearing the Complainant acknowledged that he did not work public holidays and therefore acknowledged he had no public holiday entitlement.

CA-00019153-012 Complaint under section 27 of the Organisation of Working Time Act, 1997- Compensation for Annual Leave on Cessation of Employment

The Complainant maintained that he did not receive his annual leave entitlements upon cessation of his employment. He submitted that he received 4 days holidays during 2017 and was not aware of what entitlement he was due at the cessation of his employment.

CA-00019153-013 Complaint under section 27 of the Organisation of Working Time Act, 1997- Compensation for Public Holiday Entitlement on Cessation of Employment

The Complainant maintained that he did not receive payment for his public holiday entitlement on cessation of his employment. However, at the hearing the Complainant acknowledged that he did not work public holidays and therefore acknowledged he had no public holiday entitlement.

CA-00019153-015 Complaint under Section 45A of the Industrial Relations Act, 1946- Annual Leave Entitlements as Set Out in an Employment Regulation Order

The Complainant acknowledged at the hearing that his employment was not covered under an Employment Regulation Order.

CA-00019153-016 Complaint under Section 45A of the Industrial Relations Act, 1946- Daily Rest Period as Set Out in an Employment Regulation Order

The Complainant acknowledged at the hearing that his employment was not covered under an Employment Regulation Order.

CA-00019153-017 Complaint under Section 45A of the Industrial Relations Act, 1946- Rest Breaks as Set Out in an Employment Regulation Order

The Complainant acknowledged at the hearing that his employment was not covered under an Employment Regulation Order.

CA-00019153-018 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that eh did not receive a written statement of his terms of employment.

CA-00019153-019 Complaint under Section 45A of the Industrial Relations Act, 1946- Failure to Provide Terms and Conditions of Employment as Set Out in Employment Regulation Order

The Complainant submitted that he did not receive a written statement of his terms of employment as set out in an employment regulation Order.

CA-00019153-020 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant maintained that he was unfairly dismissed on 24th November 2017 as when he arrived at work another driver had been rostered and he was asked to leave by a manager.

Summary of Respondent’s Case:

Response to CA-00019153-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Respondent maintained that the Complainant would have received €55 for 6 hours work. The Respondent acknowledged that it provided the Complainant a €39 float that allowed him to make deliveries and give change in cash to houses they would have delivered to. This was the arrangement that applied to all the drivers. The Respondent submitted that at the end of the night a checking up process would have then taken place where the Respondent would have received €55 for his evenings’ work and were the Complainant was allowed to keep any tips he received during the evening. The Respondent maintained that the payslips it provided to the Complainant would have indicated his rate of pay and where it would show that the Complainant always received above the national minimal wage. In this regard the Respondent also submitted the terms and conditions statement that it maintained it provided to the Complainant upon his appointment in 2013 which stated his rate of pay at €9.51 per hour.

The Respondent also maintained that the Complainant never asked for a statement of hourly rate of pay in May 2017 as alleged and therefore it did not fail to provide him.

Response to CA-00019153-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Respondent maintained that he paid the Complainant the right amount of pay. It maintained that at the end of the evening a balance was done up and from the €39 that was provided at the start of the evening as a float and where the Complainant would have been paid the correct rate of pay which was €55 as per the payslip provided. The Respondent maintained that if he was under paying the Complainant he would have objected when he specifically had sought and received his payslips for his benefit claims. He therefore argued the creditability of the complaint and that if the Complainant was not receiving the proper pay over the years he would have challenged that at the time.

The Respondent further submitted that when the Complainant had asked for his payslips over the years he would have been provided with them and where he accepted the rate of pay that was on the payslips as being correct. The Respondent contended that as the Complainant did not raise any issue at that time, and that he would have submitted these payslips certifying this was his correct rate of pay when claiming his social welfare payments, it did not pay him less than the amount due to him.

Response to CA-00019153-005 Complaint under section 6 of the Payment of Wages Act, 1991- Payment in Lieu of Notice

The Respondent maintained that the Complainant had left the workplace and resigned and therefore it was not obliged to provide him with appropriate payment in lieu of notice on the termination of his employment.

The Respondent maintained that prior to the 24th of November 2017 difficulties had arisen where a female member of its staff had an argument with the Complainant. The Respondent maintained the Complainant had left the member of staff 20c short when it came to the checking of money at the end of the evening shift. The Respondent submitted that the Complainant was aggressive and argumentative and would have intimidated the female member of staff. The Respondent advised that that the member of staff met with the Director and the Director maintained that she subsequently spoke with the Complainant about this matter and gave him a warning. (The Respondent did not call the member of staff to attend the hearing as a witness but submitted a written statement from the member of staff and wished to rely on this statement as evidence.

The Respondent submitted that difficulties continued with the Complainant and the member of staff to a point that the Respondent had a concern that when it’s Director went on leave and was not present in the café that other issues may occur between the Complainant and the staff member. The Director therefore advised the Complainant that he was not to work on the night of the 24th November 2017 as the Director was on leave that week.

The Respondent contended that despite being asked not to attend the Complainant arrived that evening and took the float, he made a delivery and when he returned he was asked to leave but he did not leave. The Director then contacted the Complainant by phone from overseas where she rang him to ask him to leave that evening. An argument developed over the phone and the Director maintained the Complainant told her what she could do with the job and that he was leaving.

The Respondent therefore submitted that the Complainant had left of his own accord and that he had not been dismissed. It acknowledged that it did not follow up with the Complainant thereafter on the understanding that the Complainant had said that he was leaving. The Complainant never returned to work.

Response to CA-00019153-007 Complaint under Section 45A of the Industrial Relations Act, 1946-- Payment of Wages Under Employment Regulation Order

As this complaint was incorrectly made it was not responded to.

Response to CA-00019153-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Daily Rest Break

The Respondent maintained that the Complainant worked 6 hours once a week and he would have received a daily rest break as there was on average a week break between his daily periods of work.

Response to CA-00019153-009 Complaint under section 27 of the Organisation of Working Time Act, 1997- Rests and Intervals at Work

The Respondent maintained that the Complainant did get breaks regularly each evening. It further maintained that meals were provided to all staff and that the Complainant would have chosen to take his meals home at the end of the evening rather than taking them during the course of the evening. Notwithstanding it maintained that there would have been periods of time each evening where no deliveries were being made and the Complainant would have rests either in the restaurant or in his car. It therefore contended that the Complainant would have had ample breaks during his normal 6 hours of work although it did not maintain the specific records of the breaks provided.

Response to CA-00019153-010 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

The Respondent maintained that the Complainant did take his annual leave entitlement. It maintained that his social welfare records would have indicated he has taken leave and that that these leave records would have also been recorded in its Organisation of Working Time Records.

It acknowledged that a review of the records shows some inconsistencies in regard to when the leave was taken but it still maintained that the leave was provided. The Respondent further maintained that the Complainant was not in a position to say what leave he was due. Notwithstanding the Respondent maintained that it did not keep a record of annual leave, however the working time records produced by the Complainant would have noted the days that he was off, and the Respondent maintained that that record would indicate what leave was taken.

Response to CA-00019153-011 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

As the Complainant acknowledged he did not work public holidays he had no public holiday entitlement.

Response to Complaint CA-00019153-012 under section 27 of the Organisation of Working Time Act, 1997- Compensation for Annual Leave on Cessation of Employment

The Respondent maintained that the Complainant would have received his annual leave entitlements during the year and when asking the Complainant what leave did he not receive the Complainant maintained that whatever his entitlement should have been, but he was not specific. On that basis the Respondent indicated that as the Complainant was not in a position to state what leave he was not provided and furthermore it did not deem itself to be in breach of its obligations.

The Respondent also maintained that it would have paid the Complainant on the weeks that he was not working as the payslips would show.

Response to Complaint CA-00019153-013under section 27 of the Organisation of Working Time Act, 1997- Compensation for Public Holiday Entitlement on Cessation of Employment

As the Complainant acknowledged he did not work public holidays and therefore had no public holiday entitlements this complaint was not responded to.

Response to CA-00019153-015 Complaint under Section 45A of the Industrial Relations Act, 1946- Annual Leave Entitlements as Set Out in an Employment Regulation Order Complaint 015

As this complaint was made under the Employment Regulation Order and was acknowledged by the Complainant that he did not have protection under such order this complaint was simply void and was not responded to.

Response to CA-00019153-016 Complaint under Section 45A of the Industrial Relations Act, 1946- Daily Rest Period as Set Out in an Employment Regulation Order

As this complaint was made under the Employment Regulation Order and was acknowledged by the Complainant that he did not have protection under such order this complaint was simply void and was not responded to.

Response to CA-00019153-017 Complaint under Section 45A of the Industrial Relations Act, 1946- Rest Breaks as Set Out in an Employment Regulation Order

As this complaint was made under the Employment Regulation Order and was acknowledged by the Complainant that he did not have protection under such order this complaint was simply void and was not responded to.

Response to CA-00019153-018 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent maintained it did provide a statement in writing of the Complainant’s terms and conditions of employment when he commenced employment and that this statement met its obligations under the legislation. It advised that the starting rate of pay was €9.51 per hour and that rate of pay was maintained throughout the Complainant’s employment. It provides the terms and conditions of employment and did not accept the Complainants position that he never received these terms and conditions.

Notwithstanding, the Respondent acknowledged that the written statement of the terms and conditions that it maintained it provided to the Complainant were not signed by the Complainant.

Response to CA-00019153-019 Complaint under Section 45A of the Industrial Relations Act, 1946- Failure to Provide Terms and Conditions of Employment as Set Out in Employment Regulation Order

As this referred to as an Employment Regulation Order and has been addressed in the previous complaint this complaint was seen to be void and was not responded to.

Response to CA-00019153-020 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent provided evidence with regards to the termination of employment as detailed under Complaint 005 above.

The Respondent maintained that a difficulty had arisen with the Complainant in August 2017 were the Complainant would have been issued with a verbal warning with regards to his behaviour towards another member of staff, and that it subsequently asked the Respondent not to attend work on the 24th of November 2017. The reason for this instruction was that the Director was on annual leave and out of the country that week and was concerned that the Complainant might approach the member of staff in the Director’s absence. The Respondent maintained that this decision was for the safety of the other member of staff. The Respondent further submitted that the instruction would have been discussed with the Complainant in advance of that evening, and where the roster would have indicated he was not scheduled to work.

The Respondent acknowledged that the Complainant attended work that evening and where the Respondent would have rung the Complainant from her leave and spoken to him and asked him to leave work that evening where he could return the following week when the Respondent was back at work. The Respondent maintained that over the phone the Complainant told the Director what she could do with the job and said he was leaving.   She therefore maintained that the Complainant was not dismissed he was merely not asked to work or rostered when the Director was not present with the intention that he would be rostered the following week. The Respondent maintained that it was the Complainant who did not agree with this and that he terminated his employment on the phone to her and left. The Respondent therefore denied it had dismissed the Complainant.

Complainant’s Submission to the Unfair Dismissal Complaint:

CA-00019153-020 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant contended the Respondent’s version of what occurred on 24th November 2017.

The Complainant maintained that on 24th November 2017 when he arrived at work another driver had been rostered and he was asked to leave by the manager. The Complainant maintained that he had collected the €39 float for that evening’s and had been told by a colleague that he should not be working. This was the first he was aware of that, he left with his float, made a delivery, but when he returned from the delivery he was by a manager to leave.

The Complainant indicated that he would have sensed matters had changed with the relationship between himself and the Respondent in and around August 2017 when the Director refused to have his annual leave marked on his social welfare benefit form. The Complainant maintained that as he had not been paid annual leave he was not agreeable with the Respondent completing that box on the form, and from that point onwards their relationship deteriorated. The Complainant also submitted that the Respondent was to have a WRC inspection and he was told by the Respondent that if he was asked if he was paid annual leave by the Inspector he was to state that he was, and he was also advised if asked he was to state that he was a cleaner. The Complainant maintained that he never met the WRC Inspector and therefore did not go along with the statements he was asked to make to the Inspector. The Complainant maintained that as a consequence things had become difficult and when he arrived at work on the 24th of November 2017 he was told to leave.

He maintained that another driver had been rostered and therefore he was effectively dismissed by his manager that night when he was told to leave. The Complainant maintained that he tried to contact the director of the business that evening who was on leave but he was unable to contact her and after he left that evening he received no further notice. Therefore in light of being to,ld to leave by the manager he believe he had been dismissed.

The Complainant denied that he had spoken to the Director on the phone as alleged by the Respondent, or that he told her what she could do with his job. He advised he had not been given notification of a written warning on August 2017. He inferred the reason for his dismissal was because he had not been prepared to go along with the Respondent’s approach to the WRC Inspector, and where he had argued with the Director over the signing of his social welfare form.

Findings and Decisions:

Findings and Decision to CA-00019153-001 Complaint under section 24 of the National Minimum Wage Act, 2000

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Having considered the evidence provided it would appear that there was an arrangement whereby a float of €30 was provided to the Complainant at the outset of that shift and on completion on that shift the float would be retained by the Complainant in addition to any tips he would have received. The money received for the provision of the food was provided to the café.

It was further argued by the Respondent that it would have provided payslips to the Complainant over the years which indicated his rate of pay was in excess of the minimum wage and these payslips would have been accepted by the Complainant at the time, he did not complain when he received them, and he would have been subsequently submitted these pay slips as being accurate to receive his social welfare benefits and at other times he was required to provide the payslips for example to the Local Authority.

I am therefore satisfied that had the Complainant not been receiving the correct rate of pay he clearly did not raise it at the time and was satisfied to progress with the payslips he was provided with as certifying he was receiving a rate of pay in excess of the minimum wage.

I therefore do not uphold this complaint.

Findings and Decision to CA-00019153-003 Complaint under section 6 of the Payment of Wages Act, 1991

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 5 (1) of the Payment of Wags Act 1991 states that 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.

The Respondent provided payslips at the hearing which indicated the Complainant was paid €55.86 per week. The Complainant acknowledged when he sought pay slips from the Respondent for receipt of his social welfare allowances he accepted the pay slips and submitted them to Social Welfare as certification of his rate of pay. He never objected at that time that he had been paid less than the amount stated on the pay slips.

I find the Complainant occasionally sought pay slips for his social welfare benefits and accepted the pay slips from the Respondent that stated he was paid €55.86 per week. The Complainant submitted these pay slips to Social Welfare to conform his earnings. I am therefore satisfied that he must have been in receipt of that payment as to have submitted a claim to Social Welfare which stated he was earning more than he earned would not be a credible or lawful submission.

I therefor do not uphold this complaint.

Findings and decision to CA-00019153-005 Complaint under section 6 of the Payment of Wages Act, 1991- Payment in Lieu of Notice

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant indicated that he did not receive payment in lieu of his notice of his termination of employment.

I note that there is a dispute between the Complainant and the Respondent with regards to how his employment was terminated. The Complainant on the one hand submitted that he was told on the 24th November 2017 that he was not to come back to work. On the other hand, the Respondent maintains that due to the Complainant upsetting a female member of staff he was asked not to come to work on 24th November 2017 as the Director was away on annual leave and despite this instruction the Complainant did arrive at work and was asked to leave for that evening. The Complainant them rang the Director and in the course of that discussion the Respondent denied that it told the Complainant not to come back to work but had told him not to attend work that evening. The Respondent advised that the Complainant then told her what she could do with her job. This is denied by the Complainant.

As there is a conflict of evidence between the parties on this matter I therefore must decide which version of events is more credible than the other. As I asked the Respondent to confirm that she would have phoned the Complainant on the night in question as asserted, I asked the Respondent to submit a record of such telephone as identified from her telephone records. Such a record was not provided toe the hearing.

I therefore find on the balance of probability that the Complainant’s version of events of what happened that night are more credible and conclude that the Director indicated to the Complainant that he was not to come back to work. Under these circumstances it was reasonable for the Complainant to believe his job was terminated without notice, and without the Respondent following a proper procedure. I therefore find that as the Complainant was dismissed on the 24th November 2017 he was entitled to minimum notice or payment in lieu such notice which he did not receive. I therefore uphold this complaint.

As the Complainant was employed for four years, under S4 (2)(b) of the Minimum Notice And Terms Of Employment Act 1973, the Complainant was entitled to two week notice I award him two weeks compensation amounting to €117.12.

Findings and Decision to CA-00019153-007 Complaint under Section 45A of the Industrial Relations Act, 1946- Payment of Wages Under Employment Regulation Order

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

As this complaint was made under employment regulation order which does not apply to the Complainant I find this complaint is not valid and is therefore not upheld.

Findings and Decision to CA-00019153-008 Complaint under section 27 of the Organisation of Working Time Act, 1997- Daily Rest Break

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 11 of the Organisation of Working Time Act 1997—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Based on the evidence provided I am satisfied that the Complainant did get a daily rest period on completion of his work consistent with the Organisation of Working Time Act.   Therefore, I do not find this complaints well founded and do not uphold the complaint.

Findings and Decision to CA-00019153-009 Complaint under section 27 of the Organisation of Working Time Act, 1997- Rests and Intervals at Work

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 12 of the Organisation of Working Time Act 1997, (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6

hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The Complainant maintained he did not get breaks during his working hours. The Respondent on the other hand maintained that the employee was provided with a meal and was provided with the opportunity to enjoy that meal during their working hours. In the cross examination the Complainant acknowledged that he would have had an opportunity on most nights to take a rest when he was not driving and where no deliveries were being made. At these times the Comp acknowledged he would of either sat in his car or elsewhere for periods in excess of 15 minutes.

I therefore find that he did have the opportunity to take his rest break during his working hours. I therefore do not uphold this complaint.

Findings and Decision on Relation to CA-00019153-010 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant maintained that he did not receive his holiday or annual leave entitlement.

As the Complainant worked on average 24 hours per month, section 19(10)(c)of the Organisation of Working Time Act states: an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—8 per cent. of the hours, he or she works in a leave year (but subject to a maximum of 4 working weeks).

Accordingly as the Complainant was employed for 34 weeks during the 2017 leave year where he was entitled to 8% of his working hours which amounts to three days paid annual leave.

Based on his submissions to Social Welfare, that was countersigned by the Respondent, I am satisfied that the Complainant did receive three days annual leave, but I find that he was not paid for that leave. I therefore find this Complaint is upheld and require the Respondent to pay the Complainant €200 in compensation for the contravention.

Findings and Decision to CA-00019153-011 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlements

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

As the Complainant acknowledged he did not work public holidays I do find he had any public holiday entitlements. I therefore do not find this complaint is well founded.

Findings and Decision to CA-00019153-012 Complaint under section 27 of the Organisation of Working Time Act, 1997- Compensation for Annual Leave on Cessation of Employment

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant maintained that when he left his employment on the 24th of November 2017 he did not receive the balance of annual leave due to him.

Based on the hours worked and the annual leave taken by the Complainant I find that he was dur three days annual leave, and as he had been granted this leave prior to 24th November 2017 I do not find he was due any further annual leave entitlements on cessation of his employment.

I therefore do not find this complaint is well founded.

Findings and Decision to CA-00019153-013 Complaint under section 27 of the Organisation of Working Time Act, 1997- Compensation for Public Holiday Entitlement on Cessation of Employment

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

As this complaint relates to public holiday entitlements where none were crude during the period under investigation I therefore do not find this complaint is well founded. I do not uphold this complaint.

Findings and Decision to CA-00019153-015 Complaint under Section 45A of the Industrial Relations Act, 1946- Annual Leave Entitlements as Set Out in an Employment Regulation Order Complaint 015

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

As this complaint was made under employment regulation order which does not apply to the Complainant I find this complaint is not valid and is therefore not upheld.

Findings and Decision to CA-00019153-016 Complaint under Section 45A of the Industrial Relations Act, 1946- Daily Rest Period as Set Out in an Employment Regulation Order

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

As this complaint was made under employment regulation order which does not apply to the Complainant I find this complaint is not valid and is therefore not upheld.

Findings and Decision to CA-00019153-017 Complaint under Section 45A of the Industrial Relations Act, 1946- Rest Breaks as Set Out in an Employment Regulation Order

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

As this complaint was made under employment regulation order which does not apply to the Complainant I find this complaint is not valid and is therefore not upheld.

Findings and Decision to CA-00019153-018 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

The Complainant maintained that he did not receive a statement in writing on his terms and conditions of employment. The Respondent submitted written terms and conditions which had asserted were provided to the Complainant when he took up employment in 2013. I note that the starting pay for the terms and conditions of employment refer to €9.51 per hour which was not the minimum wage at the time yet the Respondent had argued that it had started the Complainant on the minimum wage. There’s no signature on the terms and conditions of employment and there was no verifying record that would have indicated that the written terms of employment were provided to the Complainant.

In accordance with Section 7 of the Terms of Employment (Information) Act 1994, I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment. I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings which amounts to €111.72.

Findings and Decision to CA-00019153-019 Complaint under Section 45A of the Industrial Relations Act, 1946- Failure to Provide Terms and Conditions of Employment as Set Out in Employment Regulation Order

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

This complaint refers to employment regulation order which did not apply to the Complainants. I therefore find this complaint void.

Finding and Decision to CA-00019153-020 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider the issues that occurred on 24th November 2017, and the fairness of the procedures adopted.

Having heard the evidence provided where the Complainant maintained that he turned up for work on the 24th November 2017 which was a normal working night for him but that another driver had been assigned that night and after he had collected his float and made a delivery he was told by his manager that he was to leave. The Respondent maintained that this was a consequence of a falling out he had with the Respondent in light of the Complainant’s failure to agree to sign that that he received holiday pay in a social welfare benefits statements when he did not receive same.

The Respondent maintains that there was a difficulty with the Complainant and another female member of staff which led to an altercation between the parties in August 2018 from which a warning had been given to the Complainant. The Respondent maintained that the Complainant was asked not to turn up for work on 24th November 2017 as the Director was on leave and a concern existed that the Complainant may upset his work colleague again. The Respondent was advised he could return the following week when the Director was back from leave.

Both parties have presented a different set of circumstances which led up to the Complainant leaving the workplace on the night in question. On the one hand the Complainant advised that he tried to contact the Respondent by phone but when he heard the phone was dialling with an overseas tone he hung up and he left because he was told by the manager he was not wanted. As this was news to him, and he could not contact the Director he therefore deemed that his job was gone. It is noted that he was not contacted by the Respondent following his departure.

The Respondent has advised that it rang the Complainant and where the Complainant told the Respondent were to leave her job. The Complainant maintained he did not receive a call that night.

As the Respondent was not in a position to provide proof of the call being made, where such proof can be easily provided from the telecom company phone records, and nor was the Respondent able to provide a record of the verbal warning it gave the Complainant due to the alleged event in August 2017, I therefore find on balance that the Complainant’s version of events is more credible than the evidence provided by the Respondent.

I therefore uphold that when the Complainant arrived at work he was unexpectedly asked to leave and read this and being his dismissal. The Respondent omitted to follow up with the Complainant after the event, and a reasonable employer whom would have spoken to its employee on the phone as alleged by the Respondent, would have followed up in light of the difficulty that apparently occurred. Based on the evidence of the Respondent, the Complainant was not wanted at work on the evening of 24th November 2017 but in light of no documentary evidence he was not reasonably notified of that decision in advance of the evening, and therefore when he was told to leave by another manager it was reasonable for him to conclude he was dismissed.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In the circumstances relating to this case the Complainant did find alternative employment without undue delay. He therefore acted reasonable to mitigate any loss. Notwithstanding I have found the acts of the Respondent have contributed to the dismissal.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant six weeks compensation. The Respondent is ordered to pay the Complainant a total of €335 in compensation (subject to any lawful deductions).

Dated:   28th May 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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