CNN193

The Compliance Notice confirmed that an Inspector of the Respondent was of the opinion that the Appellant had contravened the Organisation of Working Time Act, 1997 (the Act of 1997) at Section 19(1A). The Compliance Notice required the Appellant to carry out certain actions by 19^thNovember 2018.

Preliminary matter

The Appellant made application to have the matter adjourned pending the finalisation of other proceedings in being under various Acts and involving the Appellant and another party. The Appellant submitted that the key matter in the within appeal is the Appellant’s contention that the worker to whom the Compliance Notice referred was not an employee of the Appellant at the time specified in the notice. The Appellant submitted that a decision of this Court in the within matter could prejudice other proceedings in being.

The Respondent submitted that other proceedings involving other parties could not be considered to be of a nature so as to prevent this Court proceeding with the Appellant’s appeal.

The Court determined that no basis existed for it to stand back from dealing with the Appellant’s appeal and the exercise of its statutory functions in that regard. No matter before the Court is, to the Court’s understanding, already decided in finality by any Court of authority and consequently no matter was res-judicata at the point of hearing of the within appeal by this Court. The Court accepted that any decision it might make as regards the employment status of a worker during the period at issue might be considered by another Court or body at a point in time but that possibility cannot place a barrier upon this Court in determining the matters giving rise to the within appeal.

Summary position of the Appellant

The Appellant submitted that the Compliance Notice issued by the Respondent specified actions to be taken by the Respondent in relation to an employee in employment between 30^thSeptember 2016 and 12^thOctober 2017. The Appellant submitted that the worker concerned had, by operation of the law, ceased to be an employee of the Appellant on 30^thSeptember 2016.

The Appellant submitted that the worker was a fixed term employee, that his fixed term contract had expired and that the worker had failed to agree a new contract.

The Appellant submitted that the Compliance Notice was based on grounds upon which the Inspector of the Respondent became satisfied that a contravention had occurred and that these grounds were inaccurate.

Summary position of the Respondent

The Respondent submitted that the Compliance Notice issued to the Appellant related to a period during which the worker referred to in the notice was in employment. The Respondent submitted documentation which it submitted demonstrated that the Appellant understood the worker to be in employment as at May 2017.

The Law

The Act at Section 28(1) and 28(2) provides as follows:

• 28. (1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a “compliance notice”) on the employer.

• (a) state the grounds for the inspector’s being satisfied that there has been a contravention referred to in subsection (1),

  (b) for the purpose of ensuring compliance by the employer concerned with any employment enactment, require the employer to do or refrain from doing such act or acts as is or are specified in the notice by such date as is so specified, and

  (c) contain information regarding the bringing of an appeal under subsection (7) against the notice, including the manner in which an appeal shall be brought.

Discussion and conclusions

The Appellant has submitted that the worker to whom the Compliance Notice refers ceased to be an employee of the Appellant on 30^thSeptember 2016. The Compliance Notice refers to the period from 30^thSeptember 2016 to 12^thOctober 2017. The Appellant submitted that, by operation of the law, the worker’s fixed term contract expired upon that date, that he failed to agree a new contract and consequently he ceased to be an employee.

The Court notes that the worker concerned was employed by the Appellant since 2006. No evidence of the existence of a fixed term contract of employment expiring on 30^thSeptember 2016 was put before the Court. The Appellant’s representative has made no submission setting out which law he refers to when asserting that the worker ceased to employed upon the expiry of a fixed term contract ‘by operation of the law’.

No evidence of any act of the Appellant terminating the employment of the worker at any time before 12^thOctober 2017 has been put before the Court.

Correspondence from the Appellant to the worker dating from periods up to May 2017 which sought to have him submit medical certificates as per the ‘employee handbook’, attend an occupational health assessment and other matters has been supplied to the Court and is undisputed. Similarly, correspondence dated March 2017 has been submitted wherein the Appellant advised a Government Department that the worker was, at that time, on sick leave and being covered by a named employee in his role as Supervisor.

The Court has been supplied with a document issued in October 2017 by the Appellant which purported to be a P45 recording the cessation of the worker’s employment on 30^thSeptember 2016. That document is considered by the Court to be incapable of being relied upon in that it contains clear inaccuracies relating to amount of gross pay and tax paid in 2016 and it issued over 12 months after the purported date of cessation of employment.

The Court has considered the totality of submissions of the parties and examined the Appellant’s sole ground of appeal. The Court has not been made aware of a law the operation of which terminated the worker’s employment on 30^thSeptember 2017. It is clear to the Court, from undisputed correspondence submitted to the Court, that the Appellant considered the worker as being in employment, albeit on sick leave, at various points up to May 2017, almost eight months after the date of termination contended for by the Appellant in the within appeal.

The Court is satisfied, on the balance of probability, that the employment of the worker concerned did not terminate on 30^thSeptember 2016. The Court has not been made aware of any other contended for date of termination of the worker’s employment prior to 12^thOctober 2017.

Determination

For the reasons set out above the Court, in accordance with the Act at Section 28(10)(a), affirms Compliance Notice number CN000315 issued to the Appellant on 28^thSeptember 2018.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
27 May 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.