ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012560
Parties:
| Complainant | Respondent |
Anonymised Parties | Mobile Sales Service Technician | Engineering Services Provider |
Representatives | Self | Peninsula Business Services (Ireland) Limited |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016396-001 | 19/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016396-002 | 19/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016396-003 | 19/12/2017 |
Date of Adjudication Hearing: 07/09/2018, 08/07/2019 & 28/08/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This case was scheduled for hearing on three separate dates – 7th September 2018, 8th July 2019 and 28th August 2019. The first hearing was adjourned at the request of both parties pending the conclusion of criminal proceedings against the Complainant. The second hearing was adjourned by the Adjudication Officer to give the parties the opportunity to source additional evidence in relation to their contested positions regarding the Complainant’s employment with the Respondent during the cognisable period. The herein complaint was submitted to the Workplace Relations Commission on 19th December 2017. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 20th June 2017 to 19th December 2017. However, the Complainant’s employment with the Respondent terminated on 31st August 2017 and, therefore, the cognisable period cannot extend beyond that date. Accordingly, the cognisable period for this complaint is 20th June 2017 to 31st August 2017. |
CA-00016396-001 Payment of Wages
CA-00016396-002 Holiday Pay
Summary of Complainant’s Case:
Payment of Wages The Complainant submits as follow: On or about 25th February 2016, the Complainant crashed the company vehicle which he was driving during the course of his work. Medical investigations disclosed that the Complainant had suffered from an aneurism and / or an epileptic seizure which was the cause of the accident. The Complainant was in receipt of Illness Benefit during the period from his accident. The Complainant returned to work almost immediately after the accident and continued in employment until 31st August 2017 at the insistence of the Respondent. The Respondent was aware that the Complainant was in receipt of Illness Benefit. The Respondent refused, neglected or omitted to pay the Complainant his monthly wages regularly or at all between February 2016 and August 2017. Payments were received occasionally from the Respondent. At all material times during this period the Respondent assured the Complainant that his wages would be paid. The Complainant contends that the partial payments made to him by the Respondent from the time of his accident and acceptance of the same does not now, nor did it then, constitute a waiver of his right to full payments per the terms of his contract. Moreover, the repeated assurances of the Respondent to the Complainant, regarding the payment of the unlawful deductions from his wages, created an expectation that the wage deductions would be paid to the Complainant. Relying on these assurances, the Complainant did not lodge any complaint with the WRC until after the termination of his employment. The Complainant submits a claim for unpaid wages from February 2016 to August 2017. Under the Payment of Wages Act 1991 the time limit for claims is six months from the time of the accrual of wage and the unlawful deduction. The Complainant relied on the repeated assurances of the Respondent that the unpaid wages would be paid to him and on that basis did not lodge a claim for his unpaid wages which he believed would be paid. On that basis the Complainant's cause of action for the unpaid wages only accrued at the point in August 2017 when it became apparent that the accumulated arrears would not be paid.
Holiday Pay During the time of his employment with the Respondent, the Complainant received no holiday pay for 10 years. At all material times, the Respondent failed, refused, or neglected to ensure that the Complainant took his statutory annual leave. The Complainant has sought a copy of his timesheets, working hour records from the Respondent, which to date have not been furnished. The Complainant relies on the following precedents: Tahir Nazir and Syede Nazir v Sultana Anwar [2018] IEHC 227; Sandra Cleary et al. v B&Q Ireland Limited [2016) 1 1.R. 276; Devidas Petkus et al. v Complete Highway Care Limited (2017] IEHC 12; Andrius Babianskas v First Glass Limited [20161 IEHC 598; HSE v John McDermott [2014] IEHC 331. |
Summary of Respondent’s Case:
The Respondent submits as follows: The Complainant commenced his employment with the Respondent in or around October 2007. The Complainant’s pay was at a rate of €30,000 per annum with an additional commission payment in the event that the Complainant exceeded €10,000.00 in sales for a calendar month. Commission is paid at a rate of 8% on sales above €10,000.00 Until 2016 the Complainant’s attendance and performance were satisfactory. In 2016 the Complainant was absent without leave for 36 days. The Complainant was absent on sick leave from 1 April 2016 until 29 July 2016 (inclusive). The Complainant was absent on sick leave from 7 November 2016 until 31 December 2016 (inclusive). The Complainant was absent without leave from 1 January 2017 until his resignation on 31 August 2017. The Complainant had been experiencing ill health and this may be the reason for his absence. The Complainant failed to provide sickness certificates. In or about May 2017 the Complainant was found to be in possession of circa €35,000.00 (wholesale value) property belonging to the Respondent. The Respondent did not authorise the Complainant to be in possession of same. The Complainant was arrested. The Complainant pleaded guilty to offences of dishonesty before the Circuit Criminal Court. The Complainant resigned on 31 August 2017. At the time of the Complainant’s resignation the Complainant had outstanding debts to the Respondent in the value of €4,710.00. To date this money has not been repaid. The Complainant and Respondent co-signed a letter dated 31st August 2017 which (i) confirmed the Complainant’s resignation; (ii) referred to the fact that the Complainant had been out of work for the last year and a half (approximately); and (iii) confirmed that the Complainant owed the Respondent €4,710.00.
Preliminary Submission in relation to Payment of Wages Claim In light of the date of lodgement of the claim papers, it is submitted that the relevant start date for the purposes of the claim is 19th June 2017. The complaint form states that the date of contravention, being the first date on which payment was withheld was February 2016. The relevant period for the purposes of claims brought under the Payment of Wages Act was extensively considered in HSE v. McDermott [2014] IEHC 331. Per the decision of Hogan J.: “For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be in time for the purposes of s.6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out of time.” In the present circumstances, the complaint has been “framed” as relating to the period February 2016 to 31st August 2017. In light of the foregoing, it is submitted that claim is statute barred for the purposes of the Payment of Wages Act and consequently, the WRC should decline jurisdiction in relation to same.
Preliminary Submission in relation to the Organisation of Working Time Act Per section 41(6) Workplace Relations Act 2015: “…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” The last date on which the Complainant worked for the Respondent or was on authorised sickness leave was 30 December 2016. The Complainant was absent without leave thereafter. It follows that the most recent date on which the Respondent could be said to have been in breach of the Act was 31 January 2017, that being the date on which any outstanding public holiday entitlement could have been properly payable. The claim was presented on 19th December 2017. The claim was “amended” to its current form on 17th January 2018. The within complaint has been brought in excess of the 6 month limitation for the presentation of the within complaint. The Complainant did not work in 2017 and had no authorised sickness leave. It follows that the Complainant has no statutory entitlement for 2017 pursuant to the Organisation of Working Time Act. The Respondent relies on the following precedents: Sullivan v. Department of Education [1998] 9 E.L.R. 217 and Able Security Ltd. v Langsteins (WTC/12/225). |
Findings and Conclusions:
The cognisable period for this complaint is 20th June 2017 to 31st August 2017. I am faced with a conflict of evidence between the parties. On the one hand, the Complainant contends that he worked for the Respondent during the cognisable period and is owed wages and holiday pay in respect of that period. The Respondent, on the other hand, maintains that the Complainant was on unauthorised absence during the cognisable period and, therefore, is not entitled to wages or holiday pay in respect of that period. Despite being afforded an adjournment for the purpose of gathering evidence in support of his position, the Complainant was unable to provide any evidence which showed that he had worked for the Respondent during the cognisable period. The Respondent relied on two pieces of evidence in support of his position – the co-signed resignation letter of 31st August 2017 in which it was stated that the Complainant had been out of work for the last year and a half approximately and the criminal proceedings which commenced in May 2017 in relation to the Complainant’s alleged theft of product and equipment from the Respondent for which he was subsequently found guilty. At the hearing, the Complainant did not dispute the fact that he had signed the resignation letter. Based on the Complainants’ work record supplied by the Respondent, I am of the view that the drafting of the resignation letter was somewhat careless and that the Complainant was absent for 10 months prior to his resignation rather than the eighteen months that was stated in the letter. In my view, however, this does not alter the fact that the Complainant was absent from work without authorisation during the cognisable period. Moreover, I believe that the Complainant’s arrest in May 2017 for the unauthorised possession of a substantial amount of property belonging to the Respondent, would make it impossible for an employment relationship to exist between the parties after that date. Having considered the submissions of both parties and all the evidence adduced at the adjudication hearings, I find the evidence of the Respondent to be more credible. I find that the Complainant did not work for the Respondent during the cognisable period and, therefore, he does not have a stateable case for that period under either the Payment of Wages Act or the Organisation of Working Time Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00016396-001 Payment of WagesI find that this complaint is not well founded.
CA-00016396-002 Holiday PayI find that this complaint is not well founded. |
CA-00016396-003 Terms and Conditions of Employment
Summary of Complainant’s Case:
The Complainant submits that during the Complainant's 12 years of employment with the Respondent, the Respondent did not furnish the Complainant with a statement of his Terms and Conditions of Employment. The Respondent furnished the Complainant's solicitor with a copy of a purported contract of employment on 5th July 2019 which purports to have been issued to the Complainant in April 2017. The said document is unsigned and purports to record an employment start date of October 2007. The Complainant submits respectfully that this purported issue of a contract took place only when the employment relationship was already in difficulty and should be read in that light by the Adjudicator. |
Summary of Respondent’s Case:
The Respondent submits as follows: By letter of 25th April 2017 the Complainant was provided with an updated Statement of Main Terms. This document satisfies the requirements of section 3 Terms of Employment (Information) Act 1994. The Complainant failed to respond to the request that it be returned to the Respondent with the Complainant’s signature. A reminder letter was sent on 12th May 2017. No reply was received. The Statement of Main Terms was sent was to the most recent address provided by the Complainant to the Respondent. It is noted that the Complainant’s claim form details a different address from the one provided to the Respondent. The Complainant failed to inform the Respondent of the change of address. The Complainant was absent without leave at the time. The Complainant was provided with a statement of main terms. For the Complainant to succeed under the Terms of Employment (Information) Act 1994 it must be proven that the Respondent failed to provide the Complainant with a statement of their main terms and conditions of employment which complies with s.3 of 1994 Act. Where any breach of the 1994 Act is technical or minor in nature, the dictates of fairness or equity could not justify an award of compensation to the Complainant. The Complainant has not adduced any particulars of loss with respect to any alleged failure on the part of the Respondent pursuant to the 1994 Act. In the absence of same it is submitted that should it be found that a mere technical breach of the 1994 Act occurred, any such award should be measured in light of the above authority. The Respondent relies on the following precedents: Philmic Ltd. t/a Premier Linen Services v. Petraitis (TED1616); Grant Engineering (Ireland) v. Delaney (TED1728); Irish Water v. Hall (TED161); Able Security Ltd. v. Hardijs Langsteins (DWT1319). |
Findings and Conclusions:
This complaint has been referred under section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of section 3 of the Act. Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides: “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …” Section 3 (4) of the Act states that: “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”. At the hearing, the Respondent conceded that the terms and conditions of employment issued to the Complainant were not issued until April 2017, even though he had commenced employment in 2007 and that they were unsigned. I find that the Respondent has contravened section 3 of the Act and that the complaint is well founded. |
Decision:
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 my powers under section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €1,200 being the equivalent of approximately two weeks’ pay in respect of the contravention. |
Dated: 05-09-19
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Cognisable period – payment of wages – annual leave – terms and conditions of employment |