Complainant

Respondent

Anonymised Parties

A Customer Service Operator

A Car Hire Company

Representatives

Lillian Nagle, Solicitor on May 21, 2019

Ms Shelley Horan, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994(Withdrawn on Day 1 of hearing on May 21, 2019).

CA-00025461-001

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00025461-002

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025461-003

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025461-004

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025461-005

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025461-006

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025461-007

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025461-008

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00025461-009

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00025461-010

31/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00025461-011

31/01/2019

The case follows a complaint of 11 parts lodged with the WRC dated 31 January 2019. The complaints follow an unexpected conclusion of an employment relationship in September 2018.

The Hearing ran over two days. On day 1, the complainant was represented by his Solicitor and I made a formal request for the complainant side to formalise the complaint into submission format. To aid that process, both parties exchanged documents in the case.

Several requested postponements followed.

The Complainant altered his chosen representation prior to Day 2 of the Hearing. On August 1,2019, in advance of this day, I wrote to the complainants newly appointed advocate seeking the requested written submission. None was forthcoming.

On the day 2 of hearing, I permitted the complainant and his representative some time at the commencement of the hearing to tabulate these documents for submission. This was not ideal and was an understandable point of frustration for the respondent, given the extended period of adjournment from May 2019.

This process remained incomplete. At the end of the hearing I requested 4 specific documents from the complainant’s representative to assist in my enquiries. The Complainants representative forwarded a 130-page submission. I found the 4 documents I requested.

On the first day of hearing, the complaint withdrew CA -00025461-001. This was acknowledged and accepted by all present. This complaint had been framed on receiving a statement in writing on his terms of employment. Both parties acknowledged that this complaint was withdrawn, and I was not able to accept to accept the Day 2 submissions that this remained a live complaint.

This decision follows a careful consideration of all oral and written submissions in the case.

Preliminary Issue:Surreptitious Recording of 26 October Meeting Mr A and the complainant.

The Complainant confirmed that he had recorded a meeting with Mr A arranged for the evening of October 26, 2018. He wished to use this in evidence in the case.

The Respondent opposed this by stating that this was a covert recording taken a time where the respondent was actively seeking to accommodate the complainant in a post-employment resolution to his grievance. It constituted an act of bad faith and should not be considered at Adjudication.

This was later qualified by Mr A who expressed no difficulty in the recording being considered.

I have taken some time on this issue. I am mindful that I have been delegated 10 complaints ( 1 withdrawn ) under several differing pieces of legislation. The cognisable period for these ranges from July 30 to September 30-October 6, the disputed last dates of employment.

I am troubled by one party recording a conversation without consent. While I appreciate that it is not expressly prohibited in any statute, it does nothing for the supposed mutual trust and confidence that lies at the heart of an employment relationship. It is in my opinion a form of entrapment and has no place in a modern workplace. The Respondent procedures allow for a representative to accompany a worker in grievance. This is further embellished in SI 146/2000 the Code of Practice on Grievances. I also noted that the Respondent had a comprehensive Policy on Data protection and associated consent. The Complainant did not advance any reason why he chose to address his post work grievance alone.

The surreptitious recording took place 4 weeks after the employment concluded and I have decided to omit it from my consideration on that basis. I have taken evidence on the procedural framework relied on by both parties’ post termination of employment and my decision is based on this evidence supported by oral and written submissions alone.

The Complainant commenced work in Customer Service at the Respondent car hire company in February 2018. His hourly pay was €10.15, and he received a 6-month contract of employment. He undertook 2 days of training. He worked long days of 9-10hr days and was not always facilitated by breaks. He worked hard and assumed responsibility in the absence of his manager, Mr A.

In March 2018, he was accepted for a return to College and was area that a colleague of his had worked part time in Dublin while pursuing a college course.

The Summer period was very challenging and new staff were hired. The complainant became ill and exhausted. He was assured that his contract would continue and from 10 September onwards, he understood that he would be permitted to work weekends when he returned to college. He arrived to work on October 6, only to be informed by MR A that the job had finished.

He sought to obtain some rationale for his omission but was unsuccessful. He was devastated as he had depended on the back up of guaranteed weekend work to propel him through his return to third level education.

He subsequently met with Mr A and taped the proceedings of a meeting. He was unable to resolve the conflict and referred the claims to the WRC on 31 January 2019.

CA -00025461-002 Notification of a Change to terms of employment

The Complainant submitted that his initial contract of employment expired at July end, 2018. He did not receive a subsequent contract. He did not receive updated terms of employment. The Complainant stated that he had contacted the Human Resource Dept post his dismissal to ascertain how hi employment was classified from august 2018 onwards. He understood that he had been placed on a fixed term contract or an extension of his first contract.

His representative contended that the complainant was entitled to notification of the changes to his employment and had not received this notification within one month of the change. He was not notified of a cessation date.

CA -00025461-003 Payment for Annual Leave

The Complainant submitted that he ha not received 4-5 weeks annual leave in accordance with his contribution as a Category A worker. He also submitted that his hourly pay for holiday purposes was wrongly calculated.

The complainant confirmed that he did not understand “pro rata” calculation of annual leave. He submitted that he had worked 1,475 hours and had not taken annual leave during his employment. He sought a revised rate of pay for annual leave.

CA-00025461-004 Payment in lieu of Notice (POW Act)

The Complainant submitted that he had not received notice of his termination of employment or payment in lieu thereof. He sought compensation.

The Complainant submitted that he had been replaced and when he had requested “something in writing “he had not received any feedback. That prompted him to contact Human resources.

CA -00025461-005 Deduction in Pay

The Complainant sought payment for being available for work on October 6 and 7 of €194.03. He also sought €1905.34 for annual leave and €1218.89 in respect of notice.

He requested that these claims already submitted under different legislation be considered under Payment Of wages Act, 1991.

CA -00025461-006 Breaks

The Complainant submitted that he had not received breaks and had referred to his own records. He gave evidence that there was nowhere to go at break times, but he had not raised it during the employment. He kept his head down. He was shy and embarrassed.

He logged his hours which were signed off by Mr A and on analysis he had identified a shortfall. He had not been provided with compensatory rest periods. He submitted that the 27 days claimed without record of breaks was an underestimate.

The season had been very busy, and he had not availed of a break in these pressurised times. He identified a culture of continuity of work without breaks. He accepted that staff were paid for all hours worked.

He had not retained personal records and surmised that perhaps there had not been an incentive to record breaks.

CA -00025461-007 Maximum Working Hours

The Complainant submitted that he was required to work more the maximum permitted hours over a 17-week reference period. He submitted that the time sheet he had been provided with did not correspond to his own records.

The complainant objected to his part time hours being relied on for the purposes of the respondent calculation of his average hours worked, He stated that the reference period relied on was week ending September 8, 2018 and constituted 49 hours.

He confirmed that this had not been raised during the employment tenure.

CA-00025461-008 Minimum Notice

Duplicate claim to CA -0002451-005

CA -00025461-009 Less favourable Treatment

The Complainant submitted that he had been dismissed without notice. He stated that he had not received training as had been received by Mr B, a full-time worker, who had commenced work around the same time as him. He also submitted that he worked longer hours and took fewer breaks than his salaried counterparts. He had not received a performance review or notification of permanent positions.

The Complainant acknowledged that positions were advertised but he was not qualified for these positions. He understood that he had been replaced by a Graduate Management Trainee female worker in a neighbouring depot.

Had this position been offered to the complainant, he would have accepted it as his decision to go to college was prompted by the company and he would have like to stay on at the company.

CA -00025461-010 Written Statement

The Complainant submitted that he had not been offered a written statement setting out the objective grounds justifying the renewal of fixed term contract and the failure to offer a contract of indefinite duration.

The Complainant had not received a written statement after July 31. He disputed that a meeting had occurred where his cessation of employment was flagged. He denied that he had been told that part time work was not available. If he knew part time was not available, he would have made provision.

CA -00025461-011 Opportunities for Permanent Work

The Complainant submitted that he was not made aware of opportunities for permeant work of a part time or full-time variety. The permanent position he learned about on October 6 was explained as an external applicant. He contended that he would have applied for a permanent job.

The Respondent operates a recognised car and van rental business with over 280 employees in 26 locations in Ireland.

The Complainant commenced work on a 6-month fixed term contract as an Intern (Administrative representative) on 5 February 2018.

On 26 June 2018, the complainant informed his Line Manager , Mr A that he had decided to return to college in September 2018 .Shortly after this in July 2018 , Mr A met with the complainant and confirmed that the complainant would remain working to cover the busy summer period and his employment would cease upon commencement of College , later confirmed as 10 September, 2018.the Complainant was expected to cover weekend work until September 30 .

On 7 September 2018, the Respondent met with the complainant to discuss the termination of employment and payment in lieu of annual leave. The Employment terminated on 30 September as planned.

On 6 October 2018 the complainant presented for work. He was reminded that he had finished work and was not required. The Complainant then asked to be retained in a part time capacity, but this was not possible. There are no part time employees at this base. The Complainant asked for confirmation of his lack of employment to anchor a grant application.

On 8 October 2018, the complainant sought a formal mechanism to raise a grievance. He met with Mr A to discuss matters on 26 October 2018. the Complainant remained dissatisfied, but the respondent made the decision not to investigate the matter further. The Complainants referral to the WRC followed on 31 January 2019.

The Respondent has disputed all claims advanced by the complainant and was keen to be heard on the measures adopted by the respondent in seeking to resolve matters with the complainant before the referral to the WRC .

In particular, the respondent drew the hearing attention to an elaborate staff handbook not utilised by the complainant during the course of his employment.

CA -00025461-002 Notification of a Change to terms of employment

The Respondent submitted that the fixed term contract was agreed verbally between the complainant and Mr a around mid-July 2018. No changes to the complainant’s terms and conditions of employment were made which would have required notification to him in accordance with Section 5 of the Act.

The Respondent denied that the complainant had sought part time work or that there had been an organisational awareness that “he was switching over to part time “

The Roster was printed 4 weeks in advance and issued on 23 September. The Complainant was not a constituent of the roster post 30 September 2018.

CA -00025461-003 Payment for Annual Leave

The Respondent disputed the claim. The Complainant was recorded as having worked 1472.5 hours from 5.2.2018-30.9.2018.

The Complainant was paid 12.5 days annual leave (€1,141.88) in accordance with the cesser pay of Section 23 of the Act. He had taken I annual leave day on August 18.

The Respondent submitted that the company had applied the pro -rata rule correctly to the calculation of annual leave.

CA-00025461-004 Payment in lieu of Notice (POW Act)

The Respondent disputed the claim and pointed to the duplication in CA-00025461-008 and others.

The Respondent contended that the complainant was aware of his end date of employment and had in fact worked his notice and had no entitlement to payment in lieu.

CA -00025461-005 Deduction in Pay

The Respondent expressed some reservations in this claim as it was conflated with others already stated in notice and annual leave.

The Respondent submitted that there had been no contravention of the Payment of Wages Act.

CA -00025461-006 Breaks

The Respondent submitted that the complainant was obliged to particularise his claim and he had not done so. Instead he had presented a generic argument that was very difficult for the company to address.

In quoting from the staff handbook, the respondent referred to the rest entitlements provided and went on to emphasise

“…. It is up to the employees to make sure that they avail themselves of the opportunity to take a rest break. If there is a reason why an employee cannot take a rest break, they should notify this to their manager immediately so that appropriate action can be taken to allow the employee an opportunity to take the rest break as soon as possible.

Rest breaks were to be recorded by employees in accordance with appropriate time sheet “

The Respondent maintained a break area for staff where a kettle was available. The Respondents had not heard from the complainant that he experienced any difficulty in securing rest breaks during his employment and was at a disadvantage when the claim was still not particularised after 2 days of hearing.

CA -00025461-007 Maximum Working Hours

In disputing the claim, the Respondent identified the cognisable period for this claim as from 31 July onwards. The Respondent submitted that this issue had not been raised during the employment relationship and displayed a record of total hours worked.

The Respondent went on to state that as the complainant had not particularised his claim, then the burden of proof had not shifted to the company. ISS Ireland Ltd and Viera Gfencheva DWT 1157 applied.

The Complainant had not exceeded the maximum average hours permitted during his employment.

CA-00025461-008 Minimum Notice

The Complainant worked his notice and is not entitled to a payment.

CA -00025461-009 Less favourable Treatment

The Respondent disputed the claim.

By way of written submission, the respondent identified the lack of a cite comparator either actual or hypothetical by the complainant.

The Complainant attended a myriad of training on 5, February 27,28,29 March, and 3 July 2018. He had been expected to present the results of a customer service project on 9 May and was unable to attend through illness.

The Respondent disputed any differential in the treatment of salaried and hourly paid workers at the company.

CA -00025461-010 Written Statement

The Respondent disputed any contravention in the legislation. the Complainant had notified the respondent of his intention to return to college in September and had agreed with MR A to stay on to cover the holiday period until the end of September.

There was no provision for a continuum of part time work as that working schedule had not matched operational requirements in the past.

CA -00025461-011 Opportunities for Permanent Work

The respondent disputed the claim. It is the Respondent practice to advertise all vacant positions on a named webpage. The Respondent submitted a copy of all job advertisements during July -September 2018.

I have taken some time to consider the facts as raised by both parties in this case. I have also considered the oral evidence adduced by the parties. I had some pronounced difficulty in considering aspects of the complainants stated case as details were not adequately particularised from the outset. This caused me some disquiet as it was clear that the complainant carried a high level of residual dissatisfaction regarding the unanticipated conclusion of his employment. I decided to try and probe the of the claims.

I made two formal requests of the Complainant for a written submission in the case. I was unhappy by the lack of regard given to this request. I did receive a composite document from the complainant during day 2 of hearing but while it contained a hybrid statement of the law in parts, it was low on particularised components of the claims.

The Respondent prepared and submitted a very extensive submission complete with a range of accompanying documents.

The Respondent in disputing all the claims expressed a high level of dissatisfaction at having to meet claims that were not particularised.

I endeavoured to complete my inquiry with both parties over the course of both hearing days. This decision follows that extended process. It is of note that the complainant altered his chosen representation on day 2 and this was accommodated. The Respondent was represented by the same Legal team throughout.

From listening carefully to submissions and evidence in this case, I identified at an early juncture that the complainant was completely shocked by his experience at work on October 6, 2018. He had formed the view, informed or otherwise that he was heading into an extended working arrangement which would support his College course. He had no idea that this was to be so radically curtailed on that day and he has sought recognition and compensation for this action.

The Respondent remembered events much differently and submitted several events which underpinned a preparation for the termination of employment on September 30, 2018. These events were not recalled by the Complainant.

I have identified that the complainant carried a very high level of conviction that he had been unfairly dismissed and this strand ran right through his verbal submissions. It seemed to me that he would have preferred to have ventilated his case under that Legislation rather than the 10 complaints he did submit, were it not for his lack of standing under the tenure aspect of the Unfair Dismissals Act. I am strengthened in my view of this by considering the copious efforts he made post-employment to raise several grievances which were eventually closed by the Respondent in December 2018.

This has caused me to reflect that the complainant had not raised any issues during his employment. I am struck by this vacuum and was not assured by the complainants’ submissions that he was too reticent to do so. He adopted a principally passive demeanour during both days of hearing and repeatedly told the hearing that he could not recall events. In all of this, I am mindful that the respondent presided over a comprehensive staff manual which ought to have been enough to guide the parties through to a pathway in conflict resolution.

On the first day of hearing, I asked the complainant to submit details of “his own records” to balance those submitted by the respondent. I made several enquiries in that regard but did not receive the records sought on the of the complaints.

My role here is to decide on the claims lodged. I got the distinct impression that the Complainant wanted to focus on the perception of “broken promise “and the impact of this for him.

I will now address the complaints proper:

CA -00025461-002 Notification of a Change to terms of employment

Section 5 of the Terms of Employment (Information) Act 1994 requires an employer to notify the employee in writing of the nature and date of that change not later than 1 months after the change takes effect.

I have considered the Level A contract of employment from 5 February 2018 to 31 July 2018. This was signed by both parties but was undated on signing.

I noted that there was provision for Probation in this statement, but Mr A confirmed this was not undertaken. This was a major omission as it may have guided both parties in identifying just what the tenure and casting of the job role really was. Sadly, I must conclude that there was an insufficient attention paid by both parties to this construct.

In addition, the season was particularly busy and was compounded by Mr as absence for personal reasons. I found that the complainant certainly presented for work throughout the contractual period outside a brief period of sick leave. He fulfilled the terms of this contract and there was no dispute about his compliance.

The complainant extended his contract of February 2018 without regard to renewal paper work. This was confirmed by the Head of Human Resources, Ms L in her evidence. The hours of work were not delineated on the primary contract and were not remedied on renewal by either party. I cannot identify if this topic was ever discussed between the parties. Instead the complainant worked full time apart from a brief period of weekend only work during the last month of his employment.

I accept that the complainant experienced some ambiguity from the Human Resource Dept on inquiry in October. However, this was clarified by Ms L in her evidence that the complainant as an Intern had not been a participant in the workforce plan for the 4th quarter of 2018 an onwards.

Therefore, I cannot identify that a change occurred in the complainant’s statement of terms of employment outside an agreed extension. His primary contract prevailed to his last day of employment on September 30, 2018. Therefore, I must concur with the respondent that no material change occurred in the complainant’s statement of employment to warrant an activation of the terms of Section 5. I have not been able to identify a breach of Section 5 of the Act.

It may have assisted the parties to have agreed on the normal hours of work from the beginning.

The claim is not well founded.  

CA -00025461-003 Payment for Annual Leave

I have considered this claim and listened to both parties’ responses. The terms of employment promoted 5 weeks of annual leave for those who worked at 1,365 hours over the course of an annual leave which runs April to April. This is more than the statutory entitlement in accordance with Section 19 of the 1997 Act and includes a discretionary week from the company. My jurisdiction rests on a claim for statutory annual leave.

Payment of annual leave for annual leave is provided for in Organisation of Working Time Act (determination of Pay for holidays) Regulations 1997 SI 475/1997 Reg 3(2).

I have considered the respondent records of annual leave paid at the cessation of employment and I note the following. The Complainant availed of one sole day of annual leave during his employment. I can appreciate that he may well have wished to store leave to allow a break before college, but this meant that he may not have had due regard for the clause in section 6 of the contract

“Holidays are to be requested in writing 20 calendar days in advance and require a managers approval ……The Company will not pay salary in lieu of annual leave.

The Organisation of Working Time Act prohibits payment of annual leave during live employment. This is then addressed in Section 23 of the Act in terms of compensation on leaving employment referred to as censor pay, The Respondent submitted that the complainant was paid cessor pay of 12.5 annual leave days and nothing further was owed.

The Complainant insisted that he was owed the 25 days referred to in the contract. I appreciate that the complainant did not have awareness of the “pro rata “rule which is clearly outlined in the handbook. However, I have found that the Respondent paid the complainant his correct statutory annual leave in the form of cessor pay as detailed in the pay slip 31 October 2018. I find that I have resolved the conflict in relation to this issue of the 7 September discussion on annual leave in favour of the respondent. I accept that annual leave was being calculated as cessor pay.

The Respondent ought to have managed this annual leave in a more pro -active way as the complainant worked an 8-month period while receiving just one annual leave day. This is a variant on best practice and goes to the root of the claim.

I have found the claim is not well founded.

CA-00025461-004 Payment in lieu of Notice (POW Act)

I have considered both parties submissions in this regard and have concluded that while the complainant was under the impression that he was on a continuum of work post October 6, I could not identify concrete facts or documentation to support this contention. I acknowledge that the complainant liked his job and was highly endorsed by Mr A during the away day with Mr A and a Scottish employee in June 2018. However, I could not identify a replica of the initial contract of employment to cover the July 31 cessation date or more importantly the pursuance of this aim by the complainant from July 31 onwards.

Therefore, I must rely on the respondent evidence that the complainants work ended on September 30, 2018 and the complainant was forewarned of that cessation and had worked his notice.

The claim is not well founded.

CA -00025461-005 Deduction in Pay

I have considered this claim already addressed in the prior findings. I have not identified a breach of Section 5 of the Act.

The claim Is not well founded.

CA -00025461-006 Breaks

I have considered this claim. I am mindful of the evidence adduced by the complainant and Mr A in this regard. I accept that the Respondent made provision for breaks in the work station via a kettle, microwave and opportunity to rest. While I accept that the employee had responsibility to record his breaks, Section 25 of the act places a firm responsibility on the respondent to record working time breaks.

The cognisable period for this claim commences on July 31 to September 30. I reviewed the records submitted and found some gaps in the records of breaks which I must place at the respondent’s responsibility.

While, I accept the complainant did not raise this issue during his employment, he did not avail of the break time allowed and was paid for all hours worked.

In Stasaitis V Noonan Services Group [2014] ELR 173, the High Court, Kearns J, ruled that breaks afforded to the claimant in a security hut situation during periods of inactivity satisfied the requirements of the Act.

I could not benefit from the complainant’s own records that he had intimate he retained. I reviewed the records submitted by the respondent and I find that the complainant frequently worked alongside other workers and ought to have benefitted from rest periods in accordance with Section 12 of the Act and I have identified several lapses during the cognisable period. It is regrettable that both parties did not address this during the working tenure.

I find that the claim is part well founded from July 31, 2018.

CA -00025461-007 Maximum Working Hours

I have considered this claim. Section 15 provides that an employee shall not be permitted by his employer to work more than an average of 48 hours during a week. This poses a strict liability on an employer. The reference period is four months and does not include annual leave, sick leave, parental leave or carers leaves. For the purposes of computing the hours worked in a week, break periods, during which the employee Is not liable to be required to work and is not “on call “will not count.

In Svoboda V IBM Ireland DWT /18/2008, the Labour Court held that breaches of the Act detected transpired in the face of a Respondent attempts to get the complainant to work less were non-culpable.

I applied the 4-month reference period to that submitted by the complainant as week ending September 8, 2018. I have subtracted the break times as referenced above. While I noted that the Respondent presided over a very high number of hours of work undertaken by the complainant, the reference period did not result in an average more than 48 hours as outlined in Section 15 of the Act.

The claim is not well founded.

CA-00025461-008 Minimum Notice

As this is a duplicate claim with CA 00025461-004 and CA -00025461-005. I have recorded my findings which are unchanged here.

The claim Is not well founded.

CA -00025461-009 Less favourable Treatment

The Complainant has submitted that he was treated less favourably than his colleagues Mr B in contravention of Section 6 of the Act. Section 5 outlines the basis for establishing a comparator in accordance with the Act. That are the employees both permanent and fixed term must be of the same or associate employer.

Section 6 goes on to outline the prohibited conduct for the purposes of the Act.

This section implements clause 4 of the Framework Agreement and provides, in general terms, that a fixed-term employee shall not be treated less favourably than a comparable permanent employee in respect of his conditions of employment. Subsection (2) provides that a fixed-term employee may, in respect of conditions of employment, be treated less favourably than a comparable permanent employee if that treatment can be justified on “objective grounds”

The Complainant did not name his comparator for the purposes of Section 5 until the second day of hearing. He named Mr C who started work as he did but whose tenure was permanent.

The Human Resource lead gave an outline of the Graduate Management Training Programme which recruits 100% from within. Out of 55 Interns annually who are placed on fixed term contracts, 4 out of 5 convert to Full time contracts and go on to have a future with the company at the Management Training Programme. She told the hearing that part time work was not available in the Southern Division and the complainant had not formed part of the staffing forecast for the winter months. It was a case of Mr A and the Complainant getting their wires crossed regarding the complainant’s tenure. He was granted a brief period of extension as it was not possible to be in college and work simultaneously.

She went on to submit details of the training programmes available to staff and details of the modules undertaken by the complainant were affixed to the written submissions.

The Respondent went on to clarify that the complainant had referred to a text from the complainant submitted on October 5 seeking completion of training. It was their case that this referred to his intended study at university rather than the Respondent training modules. This conversation had not been advanced.

I reviewed the attendance records for the Complainant and Mr C as pro offered by the Respondent. I did not detect any less favourable treatment directed towards the complainant. Both employees appeared to work a 5-day week within the cognisable period until the complainant went part time in early September 2018.

I reviewed records of the training received by the Complainant. I noted that he had engaged in training which his comparator had not participated in on July 3, 2018. I noted that the complainant also worked on a Presentation for the company which required training.

Based on the complainant’s submissions and evidence followed by the Respondent response of rebuttal, I have not identified a breach of Section 6 of the Act. I have not identified where the complainant was treated less favourably than Mr C, his named comparator.

CA -00025461-010 Written Statement

I have considered both parties oral and written submissions on this claim. It is not disputed that the complainant was provided with a solitary contract which governed his term of employment. The Respondent submits that they provided an extension on this contract to cover summer exigencies. They disputed that this extension constituted a renewal and that a CID was never in contemplation. Written statements of employer.

8

8.— (1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

I listened to the complainant’s evidence in this regard. He acknowledged that he had not requested a written successor to the February 2018 contract and the extension was covered verbally between he and Mr A. However, as it transpired, there was confusion in the interpretation of that verbal agreement. I have already resolved that conflict in favour of the respondent.

The respondent is obligated to comply with Section 8 of the Act. Section 2 on Interpretation of the wording of the Act defines a renewal as an extension and “cognate words shall be read accordingly “

The Respondent is clear that paperwork did not issue to cover the extension in the complainant’s tenure. Given the high level of upset that has followed this omission, I have identified this vital vacuum in adherence to Section 8(3) to go to the heart of the case. The period August 1-September 30, 2018 ought to have been managed in accordance with Section 8 of the Act on continuous employment. It was not done so.

I have identified a breach in Section 8 of the Act. On balance, I have also identified that Mr A was absent from the business on personal grounds for a large part of July and August, the key period in this claim. I make this observation in line with Section 8(4) of the Act and note that his personal circumstances were known to the complainant.

The claim is well founded.

CA -00025461-011 Opportunities for Permanent Work

I have considered this claim and both parties oral and written submissions. In addition, I have placed some weighting on the evidence given by Mr A and the Human Resource Lead in relation to the system for advertising jobs within the company. Information on employment and training opportunities.

Section 10 of the Act provides guidance on this claim.

10.— (1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

The Complainants representative acknowledged that the complainant had seen many job advertisements during his tenure and decided that he was not suitably qualified to apply for these jobs which were appended to the Respondent submission.

He referred in evidence to the appointment which coincided with his departure at a different depot. The Respondent had declared this as a full-time position which was open to the complainant to apply for. the Complainant by his own admission sought part time work only from September 2018.

I am satisfied that the complainant was placed on notice of opportunities for permanent work. I am also satisfied that he was provided with appropriate training opportunities during hi employment

Based on the evidence of both parties, I could not identify a breach of Section 10 of the Act on opportunities for permanent work.

In conclusion, I have endeavoured to inquire into the claims submitted. I have recorded my findings above. However, it would be remiss of me not to place a rider at the end of this report for the attention of both parties.

In my analysis, I have identified a period of challenging work recorded by the complainant which was recognised as such by the respondent, albeit on an informal footing. The usual tools of probation and formal assessment of performance were not captured in real time. This may or may not have contributed to the confusion which revolved around the October 6 dateline and thus brought all parties before the WRC. I appreciate that the Respondent had a very busy summer season but some records of engagement surrounding the key events cited on June 26, September 7 and a contemporaneous record of emerging changes in attendance pattern would have benefitted me further in this case. The absence of these key records in an otherwise well recorded work activity caused me some concern and caused me to rely wholly on the party’s evidence to guide my decision making.

From the Complainants perspective, I have endeavoured to explore the claims made and applied the relevant law to the facts as adduced. There were times when the complainant was far from certain in his recall of events. Overall, I found that he preferred his representatives to speak for him and this caused me some difficulty as I would have preferred to hear from him directly on several points. He exhibited a high level of anger towards the respondent to the end.

I wish to acknowledge the positive contribution from the Human Resource Lead, Ms L, whose factual and open communication provided me with an effective window to the environs of the employment. I accept that the respondent attempted to resolve matters with the complainant post his termination of employment.

 DECISION:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA -00025461-002 Notification of a Change to terms of employment

The Claim is not well founded.

Section 6 of the Payment of Wages act, 1991 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 5 of that Act.

CA -00025461-004 Notice

The Claim Is not well founded.

CA -00025461-005 Payment for Annual Leave, notice period and availability.

The Claim is not well founded

Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in relation to the claims consisting of a grant of redress in accordance with the 1997 Act.

CA -00025461-003 Payment for Annual Leave

The Claim is not well founded.

CA -00025461-006 Breaks

I found the claim to be partly well founded and I order the Respondent to pay the complainant €500 in compensation for the contravention of Section 12 of the Act.

CA -00025461-007 Maximum Working Hours

The claim is not well founded.

Section 11 of Minimum Notice and Terms of Employment act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Part.

CA-00025461-008 Minimum Notice

The Claim is not well founded.

Section 14 of the Protection of Employees (Fixed Term Work) Act, 2003, requires that I decide in relation to the complaint in accordance with the relevant redress provisions of that Act.

CA -00025461-009 Less favourable Treatment

The Claim is not well founded.

CA -00025461-010 Written Statement

I found the claim to be well founded and order the Respondent to pay the complainant €1,000 in compensation for the contravention in Section 8 of the Act. I view this compensation to be just and equitable.

CA -00025461-011 Opportunities for Permanent Work

The claim is not well founded.

Unresolved matters at the end of employment.