ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00018798

Parties:

Complaint(s):

The following Ca=00024142-003/006/008/009/010/018 were withdrawn at the hearing;

Date of Adjudication Hearing: 06/11/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Ca-00024142-001

Unfair Dismissal Act 1977

Background

Summary of Claimant’s position

The claimant was employed by the respondent from the 14th November 2005 to the 18th June 2018 as a driver. He was paid €460 gross per week.

The claimant submitted that he was unfairly dismissed from his employment in circumstances where he had no other option but to resign following the respondent’s failure to address his grievances, invoking disciplinary procedures and threatened him with dismissal.

At the commencement of employment with the respondent the claimant stated he had not received terms and conditions of his employment.

The claimant worked as a night driver. He started around 1 am and finished in the afternoon between 4 and 7 pm. It was alleged that the claimant did not know the number of hours that he was required to work per day or during the week. It was submitted that he (claimant) worked 5/4 days a week, on average 14/15 hours daily between 45 and 60 hours weekly

A contract of employment was given to the claimant in October 2016 after 11 years’ service. The claimant refused to sign it until all issues around the contract are clarified.

It was submitted that the contract given to the claimant was a Zero-hour contract whereby the respondent did not guarantee neither the minimum or maximum number of hours.

The claimant is not a native speaker he asked a work colleague (LD) to assist him during the meetings with the respondent. It was submitted that the claimant also engaged services of a professional translator (MP) and an external consultant to help him write letters to the respondent with a view to resolve these issues.

It was stated that the claimant raised issues around his contract of employment, Public Holidays, Annual Holidays, and Payment of Wages, his rostered working week along with health and safety concerns.

The respondent failed to reply within ten days to his formal complaints within the time frames as set out in the respondent’s own employee handbook.

The claimant wrote to the respondent again on the 13th July 2017 pointing out failure by the respondent to comply with his own Grievance Policy. The respondent replied with letter dated the 14th July 2017 providing no explanation and ridiculing the claimant ‘s concerns.

It was submitted that two days later the claimant received another letter from the respondent with written warning. The letter contained information about a previous verbal warning that was issued to him which the claimant stated he had never heard of it. There was no investigation that would lead to formal warning and he was not informed about his right to make an appeal.

It was submitted that between July 2017 and June 2018 the claimant tried to resolve these issues directly with the respondent

It was submitted that by the conduct of the respondent the claimant handed in his notice on the 15th June 2018.

The claimant’s representative submitted case law to support their position.

Summary of the Respondent’s position

The respondent submitted detail time sheets to show the claimant’s hours of work. The respondent also submitted that the claimant had damaged one of the respondent’s vehicles and that he used the respondent vehicles for his own purposes. The respondent submitted details of the claimant’s time sheets. The respondent submits that it has not acted in a manner to breach a fundamental term of the contract of employment. Neither has the respondent acted unreasonably to make the continuation of employment intolerable.

Findings

Both parties made written and verbal submissions at the hearing

I find the claimant was not provided with a contract of employment at the commencement of his employment however I find that the claimant was given a contract in October 2016.

I find that while the claimant did not accept the contract, however, in his submissions at the hearing several references were made to the contents contained therein.

I find in the claimant’s submission it was stated “that between July 2017 and June 2018” he (claimant)tried to resolve issues directly with the respondent.

I find that the claimant wrote to the respondent on the 22nd June 2017 raising various queries.

I find that respondent did not engage with the claimant.

I find that the respondent did not follow the grievance procedure as set out in his own Handbook where it states “you should raise the matter in writing with the respondent. A meeting will then be arranged between the Employee and the Respondent within a period of ten days of receiving the written grievance”

I find the respondent acknowledges that he received the letter of the 24th June and he completely disregards the grievances raised in it, however, he refers to his letter of the 14th July and the contract of employment that was issued to Him (the claimant).

I find that the respondent breached his own procedures contained in his handbook

I also find that the claimant had the services of a professional translator and an external consultant to advise him on the process.

I find that the claimant had ample opportunity during that period July 2017 and June 2018 “to refer his complaints to the Workplace Relations Commission for adjudicating

Considering the definition and in accordance with the principles adopted by the WRC and the labour Court, the employee must demonstrate that:

1. The employer had acted in such a manner to breach a fundamental term of the employment contract, or
2. The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

I find that the claimant did resign his position on the 15th June 2018 however the failure of the respondent to engage I find that the claimant was left with no option but to resign.

Recommendation

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 taking all circumstances into account I find the complaint to be well founded, I am awarding the claimant  €3,000.

Ca-000241-007

Terms of Employment (Information) Act 1994)

Ca-00024142-014

Background

The claimant was employed by the respondent from the 14th November 2005 to the 18th June 2018 as a driver. He was paid €460 gross per week

The respondent submitted that a contract of employment was given to the claimant in October 2016

Findings

Both parties made submissions at the hearings

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,

(g) The rate or method of calculation of the employee's remuneration,

(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.

I find that the respondent failed to provide the claimant with a contract within the time specified in section 3

I am taking into consideration that the respondent did provide a contract in my decision

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 is well founded and to comply with the act I am awarding him €1200 in compensation

CA-00024142-014

Payment of Wages Act 1991

The claimant was employed by the respondent from the 14th November 2005 to the 18th June 2018 as a driver. He was paid €460 gross per week

It is submitted that the respondent unlawfully deducted €950 from the claimant wages which was in breach of Section 5 of The Payment of Wages Act 1991

The respondent was also in breach of the Agreement reached between Revenue and the Irish Road Haulage Association (IRHA) in respect of the conditions and guidelines covering the reimbursement of subsistence allowances free of tax by the road haulier firms (employers) to road haulier’s drivers (employees) it was stated that from February 2017 the claimant was paid €134.44 weekly

The respondent wrote to the claimant on the 20th June 2018 advising him that because of an incident which occurred on or about the 14th Day of September 2017, whereby, because of an act or omission on your part, damage was caused to customer property while delivering goods. The respondent is now at a loss in the amount of €950 excluding vat

The respondent submits that virtue of the terms of your contract of employment we are specifically authorised to recover from your wages all monies due to the respondent by you. This includes a situation where damage is caused to the company property for which the respondent is now at a loss as is the position in this case

Findings

The complaint was received by the Workplace Relations commission on the 14th December 2018

I find that the complaint in relation to allowances are not covered by the Payment of Wages Act 1991

I find having examined the contract of employment that was given to the claimant who did not sign it

In section 20 of that contract Authorisation to Company by the employee

I find that there is no reference in this section of the contract that it complies with section 5 of the Payment of Wages Act

I also find that the claimant was given a contract in October 2016 however the claimant worked for 11 years on implied contract of employment.

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 him €950

Ca-00024142-015

Organisation of Working Time Act 1997

Background

The claimant was employed by the respondent from the 14th November 2005 to the 18th June 2018 as a driver. He was paid €460 gross per week

The claimant submitted that he was not provided with his full holiday entitlement in accordance with the Organisation of Working Time act 1997. The claimant submitted that based on the hours he worked he was entitled to 20 days annual leave.

The respondent for their part submitted that the claimant by in large only worked 4 days per week and on some occasions worked 3 or maybe 5 days

The respondent submitted that they have complied with the act in relation to the holiday entitlement

Findings

Both parties made submissions on the holiday’s entitlement

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. Of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

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 in accordance with section 19 (A) that the claimant worked more than 1365 hours and as such he is entitled to 20 days holidays Annual leave I find that the claimant is entitled   to the remaining balance (4 Days) i.e. € 460 for outstanding holiday.

I find for breach of the act I award the claimant €500 in compensation

Ca 00024142-019

Organisation of Working Time act 1997

Background

The claimant was employed by the respondent from the 14th November 2005 to the 18th June 2018 as a driver. He was paid €460 gross per week

The claimant stated that he was not notified of his start and finishing times

The claimant submitted text messages backdated to 05/07/ 08/011/013/014/ 014 and 015 to support their position

The respondent refuted the allegation and submitted that the claimant was always aware of his start times and finish times.

They submitted the finish times on rare occasions because of the nature of the business did change however the claimant always was given the appropriate breaks

Findings

I find based on the evidence that the normal start times and finish times were varied due to the nature of the business

I find that no evidence was submitted that the claimant was not given notice of his start and finishing times.

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 is not well founded and falls

Dated:   24-04-2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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