ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015343

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/07/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 /or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). CA 20019-006 was withdrawn at the Hearing.

CA-000200020019-001

Terms of Employment (Information) Act 1994

The claimant was employed by the respondent from May 2013 to the 9th January 2018. He was employed as a skilled operator he was paid €130 net per day and he worked an average of 4 days per week.

It was submitted that the claimant was not provided with a contract of employment in accordance with section 3 of the act.

The representative of the respondent accepted that the claimant was not provided with a contract of employment.

Findings

A written statement of terms of employment.

Section3 .—(1) 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, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

F5[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order.

F6[(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

Decision

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

I find the complaint to be well-founded and I award the claimant €1500 in compensation.

CA-00020019.-002

Unfair Dismissals Act 1977:

The claimant was employed by the respondent from May 2013 to the 9th January 2018. He was employed as a skilled operator and he worked an average of 32 hours per week and he was paid €130 net per day and worked an average 4 days of per week.

The claimant stated that on the morning of the 9th January 2018 he was asked to remove a small partition in the en-suite, the claimant advised the respondent that the vertical bead that had been attached to the wall was wrong one. It was submitted that the respondent examined the board and found this to be correct.

The claimant sought time to go to the Bank to lodge his wages and this was agreed;

On returning to work the claimant along with another employee began to fit more concrete fibreboards.

The respondent left the room and returned a short time later and was abusive to the claimant and asked (“what the F--- are you up”) The respondent continued in a threatening manner with an abusive tone and he came right up to the claimant's face and started pointing the finger and stated the best thing you can do is “is fuck off home”

When the claimant asked him to stop pointing the finger the response from the respondent was I will point my finger at who I like.

The claimant asked the respondent to do you want me to go home? the reply was “Fuck off home” and don’t come back.

The claimant added that he was very upset he had done nothing wrong to deserve this treatment and as a result of the behaviour of the respondent he had no choice but to leave his employment.

The respondent submitted that the claimant was not able to carry out functions and before he returned to work the respondent required a written report from the claimant’s GP confirming that he was fit and able to work in the following construction-related scenarios.

The respondent stated further letters were exchanged between the respondent and the claimant.

Findings

I find that an initial hearing took place on the 24th of April 2019.

The claimant’s representative raised an issued of the authority of the person acting on behalf of the respondent. The hearing was adjourned, and the respondent was asked to provide written confirmation that if a person other than someone in a managerial position or a professional /legal attended the hearing they had written authority to act on behalf of the respondent.

The respondent submitted correspondence dated the 5th July that the person attending the hearing had been appointed by them to act on their behalf at the WRC hearing.

I find, and it was accepted by the respondent that the claimant had no contract of employment. I find that no procedures were in place to deal with issues that arose between the parties.

I find the behaviour of the respondent on the day in question was unacceptable for whatever reason. I find that the claimant had no choice but to leave his employment when instructed to do so. I find in subsequent correspondence between the parties the respondent raised some related health/work issues with the claimant. I find taking all matters into consideration that the claimant was unfairly dismissed.

Decision

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.

I find that the claimants was constructively dismissed.

I order that the he be paid €12,000.

CA-00020019—03

Organisation of Working Time act 1997

Background

The claimant was employed by the respondent from May 2013 to the 9th January 2018. He was employed as a skilled operator he worked an average of 32 hours per week and he was paid €130 net per day and worked an average 4 days of per week.

The claimant submitted that he did not receive paid holiday /annual leave.

The respondent submitted tax deduction sheets to support that the claimant was paid his holiday pay.

Findings

I find having examined the documentation that the claimant received holiday pay on the 28th July 2018.

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.

I find that based on the evidence the claimant was paid his holiday pay.

Ca-00020019-004

Organisation of Working Time act 1997

Background

The claimant was employed by the respondent from May 2013 to the 9th January 2018.he was employed as a skilled operator he worked an average of 32 hours per week and he was paid € 130 net per day and worked an average 4 days of per week

The claimant submitted that he did not get paid for Public Holiday.

The respondent submitted tax documentation stating the claimant was paid his public holiday entitlements.

Findings

I find that having examined the documentation that it is difficult to determine if the claimant got paid his Public holiday entitlements. The payslips confirm that the claimant got paid his wages it does not specify what the wages contained.ie. the number of hours worked that week and if public holiday entitlement is included in the pay.

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.

On the basis that I cannot find conclusive evidence that the claimant was paid his Public Holiday entitlements. I am going to award him €500 in compensation and I instruct the respondent to ensure the payslips contains all relevant information to the hours of work public/Holiday pay entitlements.

Ca00020019—005

Payment of Wages Act 1991

Background

The claimant was employed by the respondent from the May 2013 to the 9th January 2018. He was employed as a skilled operator he was paid €130 net per day and he worked an average of 4 days per week.

The claimant submitted that he was dismissed without any notice

Findings

Based on the evidence I find that the claimant is entitled to his notice.

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.

I find the complaint to be well-founded and I award the claimant €1040 (2 weeks) in notice payment

Dated:   23/09/19

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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