Complainant

Respondent

Anonymised Parties

A Mechanic

A Truck Rental Company

Representatives

Richard Grogan & Associates

Ian Fitzharris BL, instructed by Pinsent Masons

Act

Complaint Reference No.

Date of Receipt

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

CA-00029026-001

11/06/2019

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

CA-00029026-002

11/06/2019

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

CA-00029026-003

11/06/2019

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

CA-00029026-004

11/06/2019

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

CA-00029026-005

11/06/2019

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

CA-00029026-006

11/06/2019

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

CA-00029026-007

11/06/2019

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

CA-00029026-008

11/06/2019

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

CA-00029026-009

11/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029026-010

11/06/2019

The complainant commenced employment as a mechanic for the respondent company in July 2015. He submits that his employment was terminated on 12 April 2019 without any regard to fair procedures. The complainant’s representative submits that the complainant’ employments rights have been breached as follows;

Section 3 of Employment (Information) Act

The complainant asserts that he did not receive a contract of employment complying with Section 3 (1). The complainant states that he was never served with any contract. He submits that the contract provided under the data access request is defective and in any event is dated in August 2018. The complainant contends that there is a breach of Section 3 (1) in that he was not supplied with particulars in accordance with 3 (1) (ga) that an 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 for in that section. The complainant submits that he is entitled to receive his terms and conditions of employment within two months of commencing employment and that he is entitled to receive information in relation to his right to request a written statement of his average hourly rate of pay for any pay reference period. He states that similarly he is entitled to information regarding the particulars of his rest and break periods at the commencement of his employment and that he is entitled to have received particulars of the grievance and disciplinary procedures at the commencement of his employment. The complainant seeks compensation in the sum of 4 weeks remuneration for the infringement of his rights under this Act.

Section 11 of Organisation of Working Time Act

The complainant submits that while the respondent has raised a preliminary point that the Organisation of Working Time does not apply to him and it seeks to rely on Section 3(2) (c ) of the OWTA stating Part 11 does not apply or that it only applies to such normal hours and required overtime. The complainant cites the following caselaw M & J Gleeson & Company v Maloney DWT 95/2013 and Erac Ireland Ltd. v Murphy DWT 83/2015. The complainant asserts that he worked long hours that he would start at 6.00 am and could finish at 8 or 9 pm about 10 times per month. He states that he could on occasions work later where he did not receive his 11 hour breaks. The complainant states that he could be placed on call other times where he would have to respond within 1 hour. The complainant submits that under Section 11 of the Act, an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for her employer. The complainant is seeking compensation for the infringement of his rights under this Act

Section 12 of Organisation of Working Time Act

The complainant submits that he did not receive his statutory entitlement to rest breaks while at work. The complainant asserts that his working day could start at 6 am and he finished work anywhere between 6 pm and 9 pm. He states that he would usually get a 30 minute break in the morning and in the afternoon. Section 12 of the Act provides that a worker shall be entitled to a rest period of at least 15 minutes after 4.5 hours or 30 minutes after 6 hours work. The 30 minutes may include the 15 minute break. The complainant asserts that the records produced in response to the data access request are not clear in that it cannot be seen when breaks were taken. The complainant is seeking compensation for the infringement of his rights under this Act.

Section 13 of Organisation of Working Time Act

The complainant states that he normally worked a 5-6 day week however there were occasions when he would work 7 days a week. He submits that he did not receive a rest period of 24 hours within that time period. The complainant asserts that he had to work 7 days a week on about 6 different occasions within the last 6 weeks. The complainant is seeking compensation for the infringement of his rights under this Act.

Section 14 of Organisation of Working Time Act

The complainant would work on Sundays but did not get paid a Sunday Premium. The complainant states that he did not receive any contract where he was notified in writing of any part of his pay was specified as a premium for working on a Sunday.

Section 15 of Organisation of Working Time Act

The complainant states that he regularly worked over 48 hours per week even on averaging over a 4 months reference period. The complainant could start work at 6 am and would finish up anywhere between 6pm and 8 pm. He states that he would work 5,6 or 7days a week. He contends that he had a 30 minute break a day and a cup of tea in the afternoon while still working. The complainant is seeking compensation for the infringement of his rights under this Act.

Section 17 of Organisation of Working Time Act

The complainant was not given 24 hour advance notice of his working times.

Section 20 of Organisation of Working Time Act

The complainant was paid his annual leave on a 39 hour week basis. The complainant states that he regularly did overtime. The complainant asserts that the overtime he worked was often nearly as many hours as his 39 hour week.

Section 21 of Organisation of Working Time Act

The complainant contends that he was not paid his appropriate pay for his public holidays.

Section 25 Records: Organisation of Working Time Act

The complainant made a request for working time records by Notice of Particulars in June 2019 to his employer. The complainant submits that the working time records that have been produced are hand written by the complainant. The complainant submits that the respondent does not maintain the working time records for rest and break periods.

Unfair Dismissals Act

The complainant submits that he was unfairly dismissed. He had no prior warning nor were any procedures applied. The complainant states that while at work on 12 April 2019, he was called into the office by Mr. B (Managing Director). Mr. B spoke to the complainant about another employee’s holiday request, then the complainant submits that Mr. B said to him that he couldn’t fix any of the trucks and they would have to be sent to Cork. The complainant asserts that he disagreed and said “What the f--- are you talking about”. The complainant asked “What is your problem, the last truck that went to Cork I told them what was wrong with it and I was correct.” The complainant states that Mr. B told him he couldn’t fix anything and to “Get your stuff and get out”. The complainant submits that he was given no prior notice of this, he had no representation and had no warnings . He also submits that he was given no right of appeal. In relation to a question on mitigation of losses, the complainant’s representative stated that the complainant did not take up initial offers of jobs made to him just days after his alleged dismissal as he did not want to take less money than he had been on with the respondent and that he wanted a job with a company van. The complainant stated that he took up new employment on 4 June 2019.

Section 4 Minimum Notice and Terms of Employment Act

The complainant states that the respondent is in breach of the above Act in that he was not given his minimum notice or payment in lieu on termination of employment.

The respondent confirms that the complainant commenced employment with it as a mechanic on 28 July 2015. The respondent asserts that all employees were being issued with up to date employment contracts and consequently in or about 2 August 2018, the complainant was provided with a written statement of the terms of his contract of employment. The respondent contends that this statement reflected the existing terms of the complainant’s employment and it also included details of the complainant’s working time, including breaks and overtime. The respondent maintains that this statement was signed by Mr. B (Technical Director) on 2 August 2018 and was provided to the complainant by Mr. B on that date. Mr. B requested the complainant to sign and return a copy of the statement several times but the complainant did not do so.

Complaint of Unfair Dismissal

The respondent states that on or about 14 January 2019, 15 February 2019 and 23 March 2019, Mr. B spoke to the complainant about various operational matters under the complainant’s responsibility, specifically the maintenance of working time records, the updating of job records, smoking in the garage, cleanliness in the garage, the complainant as foreman leading other mechanics by example, incorrect procedures when ordering parts and failing to keep records of compliance and safety inspections of vehicles.

The respondent contends that in or about 23 March 2019, the complainant asked Mr. B if he could take the next couple of Wednesdays off and work Saturdays instead. Mr. B agreed and asked the complainant whether everything was okay and if he wanted to discuss anything. Mr. B formed the impression that the complainant required the time off for personal reasons and did not enquire further. The respondent asserts that the complainant took Wednesday 3 April 2019 off. Mr. H (Service Department Supervisor) asked the complainant if he could work on Saturday 6 April but the complainant told Mr. H that he could not work that Saturday. As a result, on 8 April 2019, Mr. B had a discussion with the complainant to get more clarity on the Wednesday arrangement and asked the complainant how many Wednesdays he needed to take off and what Saturdays he could work. The complainant told him he needed every Wednesday off until the end of August and then there was a discussion as to how these days off should be treated. The respondent submits that it was agreed that half of each Wednesday would be treated as holidays and the other half as time off in lieu of overtime pay but it decided to facilitate the complainant by agreeing to his proposal in this particular case. The complainant then also took Wednesday 10 April off.

The respondent states that in or around early April 2019, the complainant told Mr. D (Mechanic with the Respondent) that he was considering taking a job with X company as he was currently doing some informal work for them and had been offered employment at €850 per week (after tax) for less hours than he was working for the respondent. The respondent states that it had been aware that the complainant had been doing work for the other named company and indeed   for others but as this did not affect his work for the respondent, it had no objection and did not invoke the exclusive employment provisions of his contract of employment.

The respondent states that on the morning of 12 April, 2019 Mr. B asked Mr. H (Service Department Supervisor) and the complainant to his office to discuss a particular mechanic’s annual leave. During the discussion, Mr. H received a telephone call from a client about a particular truck. Mr. B then asked the complainant whether that particular truck had been repaired and the complaint replied that a first year apprentice mechanic was repairing it. Mr. B reminded the complainant that he had previously told the complainant to do the repair himself as it was not suitable for a first-year apprentice and told him that the truck had been out of service for nearly six months and that approximately €13,000 had been spent on it. Mr. B then told Mr. H and the complainant that in future, any such engine or gearbox rebuilds are to be referred to the unit in Cork as it appeared the respondent was unable to properly carry out such repairs. The respondent states that over the previous four months, Mr. B had expressed concerns to the complainant about various specific engine and gearbox rebuilds. The respondent submits that the complainant then became extremely irritated and asked why, and Mr. B told him that the standard of repair work by the complainant’s team of mechanics was not good enough. Mr. B took that opportunity to again raise other matters which he had previously raised with the complainant, specifically smoking in the garage, cleanliness in the garage and the correct use of equipment. Mr. B told the complainant that as he was the foreman, he was responsible for addressing the standard of repair work and the other matters referred to.

The respondent submits that the complainant responded by shaking Mr. B’s desk with both hands and repeatedly shouting “Am I the foreman ?” Mr. B confirmed that the complainant was the foreman but told him he was not doing everything he should be doing as a foreman. The respondent contends that the complainant then pointed his finger at Mr. B and said “I am not listening to this shit, f--- you and your job” and then walked out of the office. Mr. H followed the complainant into the middle office and told him to calm down, go home and relax and come back the following morning to resume work. The complainant responded, “I am sick of this kip, I’m not into this shite and I am getting more money somewhere else”. The respondent asserts that on or about 15 April 2019, the complainant phoned Mr. D (Mechanic with the respondent) and asked to meet at a location on Naas rd. in order to return his work mobile phone. On 15 April, the complainant asked Mr. D whether he was involved in making the complainant walk out because he wanted the complainant’s job and Mr. D told him this was incorrect.

The respondent states that after the complainant’s unilateral resignation. Mr. O (Director of the respondent) asking some employees working in the respondent’s yard if they spoke to the complainant to ask the complainant to phone him. On 23 April 2019, the complainant phoned Mr. O. Mr. O informed the complainant that he was disappointed he had resigned and that the complainant was a valued employee. The respondent states that Mr. O asked the complainant to speak to Mr. B to see if the issues could be resolved. The respondent asserts that at the start of the conversation, the complainant was not willing to speak with Mr. B but by the end of the conversation the complainant said he would speak to Mr. B. In light of this, on 24 April, Mr. B attempted to phone the complainant but the complainant did not answer or return the call. The respondent submits that it considered the complainant’s statements to be a unilateral resignation and therefore on 25 April   when almost two weeks had passed since the resignation without the complainant having attended for work and without any communication being received from or on behalf of the complainant to suggest that he wished to reconsider or retract his resignation, the respondent processed the complainant’s pay and returns to the Revenue Commissioners on the basis of him having so resigned. On this date, the respondent processed the final payment to the complainant being pay for the week ending Thursday 18 April 2019 being the week of the complainant’s resignation. This payment included pay for hours worked and for an outstanding 2.5 days of annual leave. The respondent states that when processing that payment, it notified the Revenue Commissioners of the termination of the complainant’s employment.

The respondent reiterates that as the complainant unilaterally resigned and was not dismissed, the complainant’s allegations regarding procedures, notice, representation, fair hearing, disciplinary procedure or appeal are irrelevant. Indeed, the respondent submits that it asked the complainant to return to work the next day and attempted to contact him to see if the reasons for his resignation could be addressed. The respondent understands that the complainant commenced employment with company Y on or about 8 May 2019, approximately three and a half weeks after his resignation. As Company Y is not a competitor of the respondent, the restrictive covenants in the complainant’s contract of employment do not prevent him working for his new employer. The respondent cites the following caselaw in support of its case Casey v Dunnes Stores [2003] ELR 313, Millett v Shinkwin [2004] 15 ELR 319.

Minimum Notice

The respondent submits that as the complainant was not dismissed, the complaint that he received “no minimum notice payment” is unsustainable.          

The respondent states that on 10 June 2019 after the complainant’s unilateral resignation, the complainant’s solicitor sent to the respondent a document titled “Notice for Particulars/Grievance”. The request dated 10 June 2019 was acknowledged on 25 June and the request was fully complied with on 24 July 2019. The respondent states that the complainant’s solicitor also complain of a failure to provide working time records and related documents.

Terms of Employment

The complainant complains of a failure to provide a written statement of the terms of his contract of employment at the commencement of his employment. The respondent submits that this complaint relates to matters outside the period covered by these complaints (12 December 2018 to 12 April 2019). The respondent states that on or about 2 August 2018, the complainant was provided with a written statement of the terms of his contract of employment.

Working time and pay

The respondent submits that aside from the normal hours and required overtime during on-call periods, the complainant effectively determined the duration of his working time himself. Therefore, pursuant to section 3(2)(c ) of the Organisation of Working Time Act, Part 11 of that Act does not apply to the complainant or only applies to such normal hours and required overtime. The respondent submits that without prejudice to the foregoing, if Part 11 of the Act does apply to the complainant (which is denied), the respondent relies on the following submissions.

Working time system

The respondent states that its employees including the complainant were required to record their working time on personal “clock cards”. They were required to use a clock card machine to record their start and finish times and times of their breaks on the card. Their manager (in the complainant’s case Mr. B) then calculated their total hours at the end of each week (Friday to Thursday) on the card for the calculation of pay etc. The respondent states that the general rule is that the hours on the clock card are rounded up for the benefit of extra pay for the employee. The respondent contends that despite frequent instructions to the contrary, the complainant persisted in completing his clock cards almost entirely by hand (without using the clock machine) and consistently failed to properly record the times of his breaks when on-site.

Complaint -002 Notification of start and finish times – Section 17

The respondent submits that the complainant’s contract of employment provided that his normal hours of work were from 9 am to 5.30 pm Monday to Friday and 9 am to 12 noon Saturday on a rotational basis. The respondent states that this is provided for in section 17(1) of the Organisation of Working Time Act. For the period covered by these complaints (12 December 2018 to 12 April 2019), the complainant had therefore been given at least four months advance notice of his start and finish times. The respondent states that the complainant was also required to do occasional on-call periods (from Friday evening to the following Friday morning, for which an additional allowance allowance of x amount gross was paid, in addition to overtime for actual hours worked). The respondent submits that the complainant was given at least three weeks advance notice of the roster for on-call periods by way of a calendar on display in the workplace, in accordance with section 17(2) of the Act. The respondent states that if the complainant was unable to work a particular on-call period, he was permitted to swap with another mechanic.

The respondent asserts that the complainant was also able to work optional overtime (for which he was paid overtime of time and a half). As this optional overtime was not “hours for which an employee is required to work”, section 17(2) of the Act does not apply. The respondent asserts that the procedure for overtime was that if there was a sufficient volume of work, the complainant was verbally offered optional overtime the day before it was to take place. Such overtime was entirely at the complainant’s discretion and the respondent had no difficulty if the complainant did not wish to work overtime and there were no adverse consequences for the complainant if he did not wish to work overtime. The respondent states that when the complainant had a call out after 5.30 pm or before 9 am during an on-call period, he was paid (on the overtime rate) from the time he received the call/left his house.

Complaint -003 Breaks – Section 12

The respondent states that a regular paid break was scheduled for all mechanics including the complainant from 10.30 to 11.00 am and an unpaid break from 1pm to 1.30 pm every day. The respondent submits that the complainant always took such breaks, although he occasionally did so earlier or later than scheduled but always in accordance with section 12.

Complaint -004 Weekly rest period – Section 13

The respondent provided a spreadsheet summarising the details recorded in the clock cards. It states that it shows that the complainant gets a 24 hour rest period each week over the period covered by these complaints (12 December 2018 to 12 April 2019) save for the week ending 20 December 2018 and week ending 7 March 2019 when he received a double rest period the following week which is permitted by the legislation.

Complaint -0005 Maximum permitted number of hours – Section 15

The respondent states that the complainant relies on a reference period for section 15 of “48 hours”. The respondent states that as this is not compatible with the legislation, it therefore relies on the period from the week ending 13 December 2018 to the week ending 18 April 2019 (being a period of four months and therefore a suitable reference period. The respondent states that it is admitted that the complainant’s average weekly hours for this period were approximately 55.68. However, the respondent states that this excess of just 16% over the maximum permitted number of hours must be considered in the context of the complainant being an employee who voluntarily and enthusiastically worked and was well remunerated for, a large proportion of entirely optional overtime. Often the overtime hours on the clock card were rounded up for the purpose of calculating pay and the average hours actually worked (approx. 55.68 hours) was less than the average hours the complainant was paid for to the extent that the complainant was overpaid for 24.84 hours overtime not actually worked over the period relevant to this complaint. The respondent asserts that the average required weekly hours (i.e. normal hours plus required overtime during on call periods) for that four month period is just 44.1 hours, well within the maximum permitted number of hours of 48 per week.    

In relation to compensation for breaches of the Organisation of Working Time Act, the complainant relies on the case of Munro v Goode Concrete DWT051. The respondent submits that there are a number of features of that case which are not present in the instant case. The respondent asserts that in Munro the Labour Court found there had been breaches of sections 11, 12,13,14 and 15 of the Act that are not in the instant case.

The respondent submits that there has been no deliberate or conscious breach of the complainant’s rights by the respondent rather the respondent inadvertently failed to stop the complainant from voluntarily and enthusiastically accepting such a level of optional overtime that his hours ultimately exceeded the maximum permitted. When the complainant requested time off, it was permitted and when he had worked significant on-call hours, he was given generous rest opportunities. In addition the respondent states that the complainant has suffered no financial loss as a result of any breach of this section.

Complaint -006 Sunday premium – Section 14

The respondent submits that save during on-call periods, the complainant was never “required” to work on a Sunday and therefore the provisions of section 14 do not apply. The respondent states that without prejudice to the foregoing, if the complainant decided to voluntarily work on a Sunday, he was paid at the overtime rate of time and a half, being a clear Sunday premium. In relation to the adequacy of time and a half as reasonable Sunday premium, the respondent will rely, if necessary, on the case of Lynch & Anor v Scally DWT 102/2013 as an example. The respondent contends that during the period covered by these complaints (12 December 2018 to 12 April 2019) there were only two Sundays on which the complainant was “required” to work (16 December 2018 and 3 March 2019 as a result of a call during an on-call period) and for such work he was paid at the overtime rate as described above and was also paid the on-call premium, which combined are a clear Sunday premium. The respondent asserts that it was clear from the complainant’s contract that he was not normally required to work on a Sunday and therefore clear that such a requirement would only arise during an on-call period and therefore clear that the additional payments described above relate to, inter alia, the possible requirement to work on a Sunday. The respondent submits that on or about 3 August 2018, the on-call premium was increased from €170 to €312.50 gross (for the normal on-call period from Friday evening to the following Friday morning) following a request from employees including the complainant.

Complaint -008 Public holiday entitlement on leaving – Section 23 (2)

While the complainant states that he was denied the May public holiday which was on 6 May 2019, the respondent states that the complainant resigned on 12 April 2019 and, allowing for one week’s statutory notice (which the complainant failed to appear at work for) his employment therefore terminated on 19 April 2019 and the public holiday on 6 May 2019 (more than two weeks later) is therefore irrelevant to his employment with the respondent.

Complaint -009 Public holiday entitlements – Section 21

The respondent states that the complainant was paid but did not work on 1 January. He was not scheduled to work on 17 March (being a Sunday) but he was paid but did not work on 18 March instead. The respondent submits that the complainant clearly works on a “time rate” which “ does not vary in relation to the work done by him or her” and pursuant to regulation 5(1) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, his pay for annual leave is therefore correctly calculated on the basis of normal pay, excluding optional overtime. The respondent asserts that if the complainant is claiming that he was not paid on a “time rate”, the respondent will rely on the Labour Court decision in Viskontis v Kilsaran Concrete Ltd. DWT175.

CA-00029026-001 Terms of Employment (Information) Act

While the complainant has argued a breach of section 3 of this Act, in that he did not receive a contract within two months of commencement of his employment; I note that the complainant was provided with a written statement of the terms of his contract of employment on 2 August 2018 therefore there is no breach of the Act in respect of this matter. The complainant also argued that there is a breach in respect of Section 3 (1) (ga), having carefully considered the documentation submitted, I note that the requirement relating to Section 3 (1) (ga) is contained in the contract and therefore there is no breach of the Act in respect of this matter. Accordingly, I find that this complaint is not well-founded and therefore fails.

CA-00029026-002 Section 17 of Organisation of Working Time Act – Notification of start and finish times

Ms. R on behalf of the respondent gave evidence stating that the respondent did keep records of working time in the format of the cloak cards and asset minder records which were produced in evidence at the hearing. For the period covered by these complaints (12 December 2018 to 12 April 2019), I am satisfied that the complainant had been given at least four months advance notice of his start and finish times. The respondent states that the complainant was also required to do occasional on-call periods (from Friday evening to the following Friday morning, for which an additional allowance was paid, in addition to overtime for actual hours worked). Mr. B on behalf of the respondent gave testimony and explained that the complainant was given at least four weeks notice of being on-call via the wall calendar in accordance with section 17(2) of the Act. The respondent states that if the complainant was unable to work a particular on-call period, he was permitted to swap with another mechanic. While there is a conflict in the evidence vis a vis the respondent and the complainant, having carefully considered the evidence, I prefer the evidence on behalf of the respondent. Therefore, I find this complaint is not well-founded and therefore fails.

CA-00029026-003 Section 12 of Organisation of Working Time Act – Rests and intervals at work

Two employees of the respondent namely Mr. B and Mr. H gave testimony that breaks usually ran to 45 minutes and that there was a practice of taking breaks in the morning, at lunchtime and in the afternoon and confirmed that breaks were taken by staff. Having carefully considered the evidence adduced while there is a conflict of evidence between the complainant and the witnesses on behalf of the respondent, I prefer their evidence on this matter as I found them to be credible and reliable witnesses and consequently, I find on the balance of probabilities that there is no breach of Section 12 and therefore I find that this complaint is not well-founded.

CA-00029026-004 Section 13 of Organisation of Working Time Act – Weekly rest periods

The respondent provided a spreadsheet summarising the details recorded in the clock cards. The respondent submits that the spreadsheet shows that the complainant gets a 24 hour rest period each week over the period covered by these complaints (12 December 2018 to 12 April 2019) save for the week ending 20 December 2018 and week ending 7 March 2019 when he received a double rest period the following week which is permitted by the legislation. In the circumstances, I find that there is no breach of the Act and I am satisfied that this complaint is not well-founded.

CA-00029026-005 Section 15 of Organisation of Working Time Act – Maximum permitted number of hours

Having carefully examined the documentation submitted and the testimony taken, I note that the complainant opted for substantial overtime. While I find that the respondent was in breach of the legislation in respect of Section 15, I deem it appropriate in the circumstances of the instant claim to direct the respondent to pay compensation in the amount of €750 to the complainant for said breach.

CA-00029026-006 Section 14 of Organisation of Working Time Act – Sunday premium

During the cognisable period covered by these complaints (12 December 2018 to 12 April 2019) there were only two Sundays on which the complainant was required to work (16 December 2018 and 3 March 2019 as a result of a call during an on-call period) and for such work he was paid at the overtime rate and was also paid the on-call premium, which combined are a clear Sunday premium. The respondent asserts that it was clear from the complainant’s contract that he was not normally required to work on a Sunday and therefore apparent that such a requirement would only arise during an on-call period and therefore clear that the additional payments described above relate to, inter alia, the possible requirement to work on a Sunday. The respondent submits that on or about 3 August 2018, the on-call premium was increased from €170 to €312.50 gross (for the normal on-call period from Friday evening to the following Friday morning) following a request from employees including the complainant. Having carefully examined the evidence I find that there was no breach in relation to Section 14 in respect of Sunday Premium. I find that this complaint is not well-founded and therefore fails.

CA-00029026-008 Section 23 of Organisation of Working Time Act – Public Holiday entitlements on leaving

The complainant states that he was denied the May Public Holiday which was on 6 May 2019. The respondent submits that the complainant resigned on 12 April 2019 and, allowing for one week’s statutory notice (which the complainant failed to appear at work for) his employment therefore terminated on 19 April 2019 and the public holiday on 6 May 2019 (more than two weeks later) is therefore irrelevant to his employment with the respondent. In the circumstances, I find that there is no breach of Section 23 (2) in respect of the Public Holiday on 6 May 2019. This complaint is not well-founded and therefore fails.

CA-00029026-009 Section 21 of Organisation of Working Time Act – Public Holiday entitlements

The respondent states that the complainant was paid but did not work on 1 January. He was not scheduled to work on 17 March (being a Sunday) but he was paid but did not work on 18 March instead. The respondent submits that the complainant clearly works on a “time rate” which “does not vary in relation to the work done by him or her” and pursuant to regulation 5(1) of the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997, his pay for annual leave is therefore correctly calculated on the basis of normal pay, excluding optional overtime. The respondent asserts that if the complainant is claiming that he was not paid on a “time rate”, the respondent will rely on the Labour Court decision in Viskontis v Kilsaran Concrete Ltd. DWT175 regarding the interpretation of the said regulations. Having examined the documentation submitted by the respondent in relation to not being paid for Public Holidays, the records show that he was paid in respect of same. There is no breach of the Act, accordingly this complaint is not well-founded.

CA-00029026-010 – Unfair Dismissals Act

Having carefully examined the evidence adduced in relation to the claim of unfair dismissal, I find that the complainant in a meeting with management on 12 April used abusive and profane language and became very agitated and walked off the job and in doing so resigned his position with the company. While the manager Mr. H followed the complainant and asked me to calm down to go home and relax and come back in the following morning, the complainant did not return to work. I note that the complainant stated prior to leaving the office “I am sick of this kip, I’m not into this shite and I am getting more money somewhere else”. Based on the evidence heard, I find that the complainant resigned his position with the company. Consequently, I find that no dismissal took place, accordingly this complaint fails.

CA-00029026-007 Minimum Notice & Terms of Employment Act

As I find that the complainant resigned his position and no dismissal took place, I find there is no breach of the Minimum Notice & Terms of Employment Act, accordingly this claim fails.  

CA-00029026-001 Terms of Employment (Information) Act

I find that this complaint is not well-founded and therefore fails.

CA-00029026-002 Section 17 of Organisation of Working Time Act – Notification of start and finish times

I find that this complaint is not well-founded and therefore fails.

CA-00029026-003 Section 12 of Organisation of Working Time Act – Rests and intervals at work

I find that there is no breach of Section 12 and therefore I find that this complainant is not well-founded and therefore fails.

CA-00029026-004 Section 13 of Organisation of Working Time Act – Weekly rest periods

I find that this complaint is not well-founded and therefore fails.

CA-00029026-005 Section 15 of Organisation of Working Time Act – Maximum permitted number of hours

I find that the respondent is in breach of Section 15 of the Act. The respondent is directed to pay the complainant compensation in the amount of €750 for said breach.

CA-00029026-006 Section 14 of Organisation of Working Time Act – Sunday premium

I find that there was no breach in relation to Section 14 in respect of Sunday Premium. I find that this complaint is not well-founded and therefore fails.

CA-00029026-008 Section 23 of Organisation of Working Time Act – Public Holiday entitlements on leaving

I find that there is no breach of Section 23 (2) in respect of the Public Holiday on 6 May 2019. This complaint is not well-founded and therefore fails.

CA-00029026-009 Section 21 of Organisation of Working Time Act – Public Holiday entitlements

Having carefully considered this complaint, I find that there is no breach of Section 21 and I am satisfied that this complaint is not well-founded.

CA-00029026-010 – Unfair Dismissals Act

Having carefully examined the evidence adduced in relation to the claim of unfair dismissal, I find that the complainant walked off the job and in doing so resigned his position with the company. I find that he was not unfairly dismissed from his employment, accordingly this complaint fails.

CA-00029026-007 Minimum Notice & Terms of Employment Act

As I find that the complainant resigned his position and no dismissal took place, I find there is no breach of the Minimum Notice & Terms of Employment Act, accordingly this claim fails.  

Unfair dismissal, minimum notice, terms of employment, Organisation of Working Time Act,