ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Dump Truck Driver | A Quarrying Business |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026301-001 | ||
CA-00026301-002 | ||
CA-00026301-003 | ||
CA-00026301-004 | ||
CA-00026301-005 | ||
CA-00026301-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977 - 2015, these complaints were assigned to me by the Director General. A hearing was arranged for April 24th 2019, for the parties to have an opportunity to be heard and to present evidence relevant to the complaints. The complainant was represented by Ms Ina Fridenberga and the respondent was represented by Mr Paul Moore of Malone Martin Solicitors. The Managing Director (“MD”) of the company attended the hearing and gave evidence.
The complainant is a Latvian national and Ms Fridenberga informed me that he has a limited understanding of English. As well as acting as the complainant’s representative, it was Ms Fridenberga’s intention to interpret the proceedings for him. I decided that the complainant should have an independent interpreter, and the hearing on April 24th was adjourned to facilitate this.
On April 18th, on behalf of the respondent, Mr Moore wrote to Ms Fridenberga to say that the MD’s position is that the complainant was not dismissed and that his job is available for him if he wishes to return, provided he submits a report from his doctor to certify that he is fit for work. This offer was repeated before the parties left the WRC on April 24th. The complainant was asked to consider this before the resumed hearing. However, on May 7th 2019, Ms Fridenberga wrote to the WRC to state that the complainant did not accept the respondent’s proposal to return to work and the hearing of these complaints went ahead on June 4th.
On the form he submitted to the WRC on February 14th 2019, the complainant listed six complaints, as they are set out above. These complaints were confirmed in correspondence to both parties on February 19th and March 12th 2019. However, in the letters sent on March 29th and May 14th to confirm the dates of the hearings, the sixth complaint, under the Minimum Notice Act, was omitted. I am satisfied that the respondent was on notice that the complainant submitted a complaint under the Minimum Notice Act and the issue was addressed at the hearing. A decision in respect of this complaint is included in this document.
Background:
On September 30th 2014, the complainant commenced employment with the respondent as a driver of a dump truck. On the form he submitted to the WRC, he said that he worked 48 hours each week, plus bank holidays, although on the section of the form concerning hours of work, he said that he worked between 48 and 55 hours per week. He said that his gross weekly pay was €780. In his submission at the hearing, the complainant said that on Wednesday, October 24th 2018, he wasn’t feeling well and he left work and went home. That evening, he said he phoned his supervisor to tell him that he was sick and that he wouldn’t be at work on Thursday. On Friday, he wasn’t any better and he was still sick over the weekend of the public holiday that ended on Monday, October 29th. The evening of the public holiday, the complainant said that he phoned his supervisor again and told him that he intended to go to his doctor on Tuesday and that he wouldn’t be in work. He said that his supervisor’s response was that he was needed at work. For this reason, the complainant went back to work on Tuesday, October 30th. Around 3.00pm, he told his supervisor that he was too sick to stay any longer and that he was going home. He said that he was in a “horrendous state,” and close to fainting but he managed to drive home. When he got to his house, he was so ill that his neighbours called an ambulance and he was brought to Our Lady of Lourdes Hospital in Drogheda. The following day, the complainant said that his supervisor phoned and he told him that he was in hospital and that he was scheduled to have an operation in Beaumont Hospital the next day, Thursday, November 1st. The complainant said that the supervisor didn’t say anything, but “hung up the phone.” On November 13th, the complainant was transferred from Beaumont back to Our Lady of Lourdes Hospital and he was discharged on November 20th. Before he was discharged from hospital, he received his P45 in the post, dated November 1st 2018. At the hearing on April 24th 2019, the complainant said that it took him some time to recover from his illness and that the was not able to consider returning to work until the middle of March. Under the Organisation of Working Time Act, the complainant claims that he did not receive an allowance for working on Sundays and that he worked excessive hours. Under the Terms of Employment (Information) Act, he claims that he did not receive a written statement of his terms and conditions of employment and that he was not notified in writing when his conditions of employment were changed. Finally, the complainant claims that he was unfairly dismissed and that he did not receive any notice of his dismissal. |
Summary of Complainant’s Case:
CA-00026301-001: Complaint under the Organisation of Working Time Act 1997 The complainant said that, when he was employed by the respondent, he never received a premium for working on Sundays. CA-00026301-002: Complaint under the Organisation of Working Time Act 1997 The complainant’s contract of employment was out of date; however, it provided that his hours of work were from 7.00am to 5.00pm from Monday to Friday. His contract also provides that he was entitled to an unpaid break of 30 minutes and two paid breaks of 15 minutes, resulting in a nine-hour working day. At the hearing, the complainant said that “everyone works from 7.00am until 6.00pm” and that he generally worked between 48 and 55 hours each week. He said that he agreed to work overtime on a regular basis when he was asked to do so by his supervisor. CA-00026301-003: Complaint under the Terms of Employment (Information) Act 1994 When he joined the company in September 2014, the complainant was employed on a fixed-term contract for six months. He received a statement to this effect. On April 1st 2015, he received a second contract for a fixed term of six months. His complaint is that, when this contract expired, he did not receive a statement confirming his status as a permanent employee. CA-00026301-004: Complaint under the Terms of Employment (Information) Act 1994 This is a duplication of the previous complaint regarding the failure of the employer to issue a statement confirming the complainant’s permanent status. CA-00026301-005: Complaint under the Unfair Dismissals Act 1977 The complainant’s case is that when his employer sent him a P45 dated November 1st 2018, he was dismissed. On November 26th 2018, he wrote to his supervisor expressing his concern about his dismissal. In his letter, he said that he was raising a formal grievance regarding the termination of his employment without notice. The complainant’s English is limited and he said that a friend helped him to write the letter. In the letter, the complainant uses the term “laid off” to describe his dismissal. In the third paragraph of his letter, the complainant said, “The reason for my job termination was unclear without any details requesting’s and etc. It seems to have been connected with my involvement into Dublin hospital (sic).” The complainant said that he was entitled to a hearing to discuss the matter and he asked his supervisor to contact him. In response, on November 28th, the complainant received a letter from the MD, who confirmed that the complainant was not laid off. He said that it was his understanding that the complainant informed his supervisor on October 30th that he had a hospital appointment the following day and that he would be back at work afterwards. When he didn’t arrive at work on Wednesday, October 31st or Thursday, November 1st, the supervisor phoned him looking for an explanation, but he got no answer on the phone. CA-00026301-006: Complaint under the Minimum Notice and Terms of Employment Act 1973 The complainant’s case is that he was dismissed without notice. |
Summary of Respondent’s Case:
CA-00026301-001: Complaint under the Organisation of Working Time Act 1997 Regarding the complainant about the non-payment of a Sunday allowance, for the respondent, Mr Moore said that the complainant didn’t work on Sundays and that, on this basis, he has no entitlement to a Sunday premium. CA-00026301-002: Complaint under the Organisation of Working Time Act 1997 In response to the complainant’s contention that he worked in excess of 48 hours per week, the MD said that the complainant wanted to work overtime and that he rarely worked more than 48 hours in a week. The respondent did not produce any records of the hours worked by the complainant. CA-00026301-003: Complaint under the Terms of Employment (Information) Act 1994 For the respondent, Mr Moore said that the complainant’s contract was continuous from the end of his second fixed-term contract on September 30th 2015. His terms and conditions were set out in his previous contracts. Mr Moore said that the time limit for submitting a complaint about this matter has expired. CA-00026301-004: Complaint under the Terms of Employment (Information) Act 1994 This is a duplication of the previous complaint. CA-00026301-005: Complaint under the Unfair Dismissals Act 1977 The respondent’s position is that the complainant was not dismissed, but that he went for a medical appointment and then he did not return to work and he did not contact his supervisor to explain his absence. He did not answer the phone when his supervisor tried to contact him. He did not submit medical certificates, although it is evident from his letter of November 26th that he understands this requirement. The MD’s letter to the complainant of November 28th states as follows: “On the 13th of November 2018 it was clear to the company that you were unavailable for work. You were absent from 30th October 2018 without explanation, you failed to inform the company of your whereabouts. You failed to provide the company with sick notes. The company had no evidence of you being sick and it was the company’s view that you were unavailable for work and either did not want to work or could not attend work. “In the absence of the above information, the company was obliged to issue you with a P45.” The letter from the MD concludes as follows: “I would like to repeat our position: You were not laid off. You have not provided any explanation for your absence. You have not provided a sick note. You have not attended work or contacted the company since 30th October 2018.” CA-00026301-006: Complaint under the Minimum Notice and Terms of Employment Act 1973 As it is the respondent’s case that the complainant was not dismissed, their position is that he is not entitled to pay in lieu of notice. |
Findings and Conclusions:
CA-00026301-001: Complaint under the Organisation of Working Time Act 1997 This is a complaint about the non-payment of an allowance for Sunday working. The complainant said that he never received a premium for working on Sundays; however, it emerged at the hearing that he didn’t work on Sundays. It is apparent that, while he was employed by the respondent, the complainant had no entitlement to be paid a Sunday allowance. CA-00026301-002: Complaint under the Organisation of Working Time Act 1997 Section 15 of the Organisation of Working Time Act 1997 (“the OWT Act”) sets out the provisions in relation to weekly working hours: (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed - (a) 4 months, or (b) 6 months - (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. Subsection (5) is not relevant to this complainant, because the complainant’s employment was not governed by a collective agreement. It is clear therefore, that, in respect of this complainant, subsection (1) above provides that, over a reference period of four months, he is not permitted to work more than an average of 48 hours each week. No reference period was submitted by the complainant in respect of this complaint, and I have decided therefore, that the cognisable period within which I should consider this matter is the final four months of the complainant’s employment, from July 1st to October 31st 2018. At the hearing, the complainant said that he worked between 48 and 55 hours each week. He explained that he worked overtime because the basic rate of pay was “very little money.” From the evidence of the MD at the hearing, I note that there was no obligation on the complainant to work overtime. Section 25(1) of the OWT Act requires the respondent to maintain records in a prescribed form, that demonstrate that the complainant received his entitlements under the working time legislation. No records were submitted by the respondent to demonstrate that the complainant did not work excessive hours. Section 25(4) of the OWT Act deals with the failure of an employer to keep records: (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 or the Activities of Doctors in Training Regulations 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. In the case at the Labour Court of Jakonis Antanas and Nolan Transport, DWT1117, the chairman, Mr Duffy considered the operation of this section: “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 Commission shall give the parties the 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 fairness, the claimant 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] AC 386, an evidential burden is satisfied where the evidence adduced is sufficient to ‘suggest a reasonable possibility.’” The complainant’s contract provides that he was required to work 45 hours per week. He claimed that he generally worked between 48 and 55 hours. From the details of his earnings on his P45, I note that in the 45 weeks to November 14th 2018, the complainant earned €35,624. I note that his final wages of €1,396 was not in respect of hours worked, and I know that his last day at work was October 30th 2018. On average therefore, for the 43 weeks to October 30th, the complainant earned €796 per week. ((€35,624 - €1,396) ÷ 43 = €796). If the complainant worked 48 hours each week, this results in an hourly rate of €16.58. In September 2015 however, his hourly rate was €10 and, by October 2018, it had not increased to €16.58. The only explanation for the wages earned by the complainant from January 1st to October 30th 2018 is that he must have regularly worked more than 48 hours each week. In accordance with section 25(4) of the OWT Act, the respondent bears the legal burden of proving that a contravention has not occurred. On the balance of probabilities, in the absence of any record of the hours worked by the complainant while he was employed by the respondent, I find that there is a reasonable possibility that, during the cognisable period, he worked in excess of an average of 48 hours each week. CA-00026301-003: Complaint under the Terms of Employment (Information) Act 1994 No evidence was submitted by the respondent to show that the complainant was issued with a contract of employment following the expiry of his second fixed-term contract on September 30th 2015. The complainant’s last day at work was October 30th 2018, by which time he had not received a statement setting out the terms and conditions of his employment from October 1st 2015. As this complaint was submitted to the WRC on February 14th 2019, it is within the six-month time limit set out at section 6 of the Workplace Relations Act 2015. When the complainant joined the respondent company, he was issued with a fixed-term contract of employment for six months. At the end of six months, he was issued with a second fixed-term contract for a further six months. When this contract expired on September 30th 2015, no further contract was issued. As a result, from October 1st 2015 until the last day he worked for the respondent, the complainant was not in possession of a valid and up to date statement of his terms and conditions of employment. I refer to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Labour Court Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress. As the failure to issue any statement of terms and conditions of employment must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here. CA-00026301-004: Complaint under the Terms of Employment (Information) Act 1994 This is a duplication of the previous complaint. CA-00026301-005: Complaint under the Unfair Dismissals Act 1977 It is the complainant’s case that he was dismissed when his employer sent him a P45 on November 15th 2018. The P45 is dated November 1st and the complainant’s last day at work was October 30th, when he went home early because he was feeling very unwell. The respondent’s case is that the complainant didn’t turn up for work on Wednesday, October 31st, and that he didn’t contact his employer and didn’t submit sick certs. In his letter to the complainant on November 28th 2018, the MD said that by November 13th, they concluded that the complainant was “unavailable for work and either did not want to attend work or could not attend work.” For this reason, they said that they were “obliged” to issue a P45. I do not accept that, having had no contact from the complainant for two weeks, it was necessary to send him a P45. On Tuesday, October 30th, the complainant went home sick, having been out sick on Wednesday, Thursday and Friday the previous week. It must have been obvious to anyone in the company who had the initiative to make an enquiry, that the complainant’s absence was connected to his illness. While the complainant’s letter of November 26th is not well written, it is apparent that he had been in hospital and therefore, it must have been obvious that the reason he did not turn up for work from October 31st on was due to illness. At the hearing of this complaint, Mr Moore said that when the respondent discovered that the complainant did not come to work because he was sick, he was asked to come back. However, the MD’s letter of November 28th concludes, “…your letter still does not explain your absence from work from 30th October 2018 to date.” Nowhere in the letter is the complainant invited or instructed to return to work. It is my view that by sending him his P45 on November 15th, the respondent dismissed the complainant. When the complainant wrote to him on November 26th, the MD had an opportunity to rescind this decision, but he did not do so. In his response to the complainant on November 28th, the MD did not disabuse him of the assumption that he was dismissed. From the evidence of the parties, the first time the complainant was asked to come back to work with the respondent was on April 24th 2019, when this case was scheduled for a hearing. I have concluded therefore, that the complainant was dismissed on November 1st 2018. I find that, from a substantive and procedural perspective, his dismissal was unfair. CA-00026301-006: Complaint under the Minimum Notice and Terms of Employment Act 1973 The complainant was employed with the respondent from September 30th 2014 until November 1st 2018 and he had therefore completed four years of service. On this basis, he was entitled to two weeks’ notice of the termination of his employment. |
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.
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.
CA-00026301-001: Complaint under the Organisation of Working Time Act 1997 This is a complaint about the non-payment of an allowance for Sunday working, in circumstances in which the complainant did not work on Sundays. I have decided that this complaint is not upheld. CA-00026301-002: Complaint under the Organisation of Working Time Act 1997 As I have concluded that the complainant has made out a substantial case that he worked in excess of 48 hours each week, I decide that the respondent is to pay him compensation of €2,000. As compensation, this award is not subject to any deductions. CA-00026301-003: Complaint under the Terms of Employment (Information) Act 1994 The complaint under the Terms of Employment (Information) Act 1994 is upheld and I therefore decide that the respondent is to pay the complainant €3,120 in compensation, equivalent to four weeks’ pay. This award is made by way of compensation for a breach of a statutory entitlement and is not taxable. CA-00026301-004: Complaint under the Terms of Employment (Information) Act 1994 This is a duplication of the previous complaint and I have decided that it is not upheld. CA-00026301-005: Complaint under the Unfair Dismissals Act 1977 I have concluded that the complainant was dismissed on November 1st 2018 and that his dismissal was unfair. At the hearing, the complainant said that he was unable to work due to illness until March 15th 2019. On April 24th 2019, he was asked to return to work with the respondent and on May 7th, Ms Fridenberga wrote to the WRC to say that he did not wish to return. I estimate that the complainant was at a loss of his wages for approximately eight weeks and I decide that the respondent is to pay him compensation of €6,240. As this award is compensation for loss of earnings, it is subject to the normal statutory deductions. CA-00026301-006: Complaint under the Minimum Notice and Terms of Employment Act 1973 The complainant was not given any notice of the termination of his employment and he was not paid in lieu of notice. I decide therefore that the respondent is to pay him compensation of €1,560.00, equivalent to two weeks’ pay. In accordance with section 201 of the Taxes Consolidation Act 1997, this award is exempt from statutory deductions. |
Summary of Awards
Complaint Reference | Complaint | Award |
CA-00026301-001 | Complaint under the Organisation of Working Time Act is not upheld. | Nil |
CA-00026301-002 | Complaint under the Organisation of Working Time Act is upheld. | €2,000 |
CA-00026301-003 | Complaint under the Terms of Employment (Information) Act is upheld. | €3,120 |
CA-00026301-004 | Complaint under the Terms of Employment (Information) Act is a duplication of the previous complaint and is not upheld. | Nil |
CA-00026301-005 | Complaint under the Unfair Dismissals Act is upheld. | €6,240 |
CA-00026301-006 | Complaint under the Minimum Notice Act is upheld. | €1,560 |
Total |
| €12,920 |
Dated: 16th January 2020
Workplace Relations Commission Adjudication Officer:
Key Words:
Failure to issue a statement of terms and conditions of employment, unfair dismissal, non-payment of notice |