DWT204

1.Appeal of Adjudication Officer Decision No. ADJ-00012560, CA-00016396-002

BACKGROUND:

2.The employee appealed the Decision of the Adjudication Officer to the Labour Court on 27th September 2019 in accordance with Section 28 (1) of the Organisation of Working Time Act 1997. A Labour Court hearing took place on 1st September 2020. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by Mr Cristian Balasa against Decision ADJ-00012560,CA-00016396-002 of an Adjudication Officer in a complaint against his former employer Hydraulic Hose Services Limited t/a Pirtek. The complaint relates to alleged contraventions of the Organisation of Working Time Act 1997, (the Act) as he claimed that he did not receive his annual leave entitlement or public holidays in contravention of the Act. He claimed that he had not received these entitlements for the previous 10 years. The Adjudication Officer at three separate sittings of the case, made a Decision on 5th September 2019 and found the complaint not well founded. The Complainant was legally represented at two of the sittings before the Adjudication Officer, both of which were adjourned for various reasons. He was urnrepresented at the third hearing.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Cristian Balasa is referred to as “the Complainant” and Hydraulic Hose Services Limited t/a as Pirtek is referred to as “the Respondent”.

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 19^thDecember 2017. He also referred claims under the Payment of Wages Act 1991 and the Terms of Employment (Information) Act, 1994 - 2014.

The Complainant appealed the Adjudication Officer’s Decision on 27^thSeptember 2019.

Background

The Complainant’s employment commenced with the Respondent in October 2007 as a Mobile Service Sales Technician, he ceased employment on 31^stAugust 2017.He was paid €30,000 per annum plus a commission payment in the event that his sales exceeded €10,000 in a calendar month. Commission was paid at a rate of 8% on sales above €10,000.


Preliminary Issue – Personal Injury Claim before the High Court

It was pointed out to the Court that the Complainant has a personal injury claim before the High Court concerning an accident in January 2016 involving the Complainant driving a company van on duty. As the claims before the Court relates to a claim for payments due in relation to annual leave and public holidays. At the outset of the hearing, the Court clarified the status of the High Court claim and whether or not both parties were willing to pursue the claims before the Court pursuant to the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997. The Court made it clear to both parties that the outcome of the instant case could potentially be prejudicial to either or both sides in the case before the High Court. The Court provided a period of reflection for the parties to consider this point. The Court was conscious of the fact that the Complainant appeared as an unrepresented party and accordingly, explained the implications of the cases proceeding before it. It offered both parties the option of adjourning the hearing until after the High Court proceedings. Following a recess, both parties made it clear to the Court that they were willing to proceed with the hearing before the Court.

Preliminary Issue – Time Limit and Application for an Extension of Time

Ms Lisa Weatherstone, B.L, Peninsula Business Services Limited, on behalf of the Respondent raised a preliminary issue contending that the Complainant’s complaint under the Act which was referred to the Workplace Relations Commission, was out of time. The Complainant sought an extension of time in accordance with the provisions of section 41(8) of the Workplace Relations Act, 2015.

In reference to the Complainant’s application to extend time, Ms Weatherstone stated that no application for an extension of time had been made by the Complainant (or his representative) prior to or at the hearing before the Adjudication Officer. This point was not disputed by the Complainant.

The cognisable period covered by the claim is the six-month period from 20^thJune 2017 until 19^thDecember 2017.

The Workplace Relations Act 2015 (the 2015 Act) provides at section 41(6) as follows:

• (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

• (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

For these reasons the Court cannot identify any justifiable basis upon which an extension of time could be granted in this case, therefore, the Complainant’s application is denied.

Cognisable Period Encompassed by the Claim

Based on its findings above, the cognisable period covered by the claim is the six-month period from 20^thJune 2017 until 19^thDecember 2017. The relevant leave year is defined by section 2(1) of the Act, it provides that a leave year is a year commencing on 1^stApril. Hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1^stApril to 31^stAugust 2017 (date of resgnation). In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable by the Court.


Position of the Parties and Evidence Tendered

The Complainant gave evidence to the Court. He claimed that he was available for work and actively sought work from the Respondent between 1^stJanuary 2017 and 31^stAugust 2017. He told the Court that during this time he was medically certified as being unable to drive following an accident incurred in January 2016. As his normal job required him to drive, he said that he either worked from home or was given lifts by a named colleague (Mr M) when he worked on a site in Cavan. He also said that he worked on the Tara Mines site and on the Kilsaran site in Kilmessan. He produced references from the latter two sites.

Ms Weatherstone denied these allegations and stated that the Complainant was on unauthorised leave during this period, he did not submit any medical certificates and was uncontactable. She said that the references referred to by the Complainant were checked and found to be fraudulent.

Mr Ken Robertson, Managing Direcotr, gave evidence on behalf of the Respondent. In his evidence he said that the accident incurred by the Complainant in the course of his work in January 2016 was a minor accident. He said the Complainant went out sick in November 2016. He tried to make contact with him. When he called to his house and spoke to him about his illness, the Complainant sought to put his GP on the phone to talk to him, however, his GP (naturally) would not discuss her patient with Mr Robertson. He said that the Complainant then sought to fund raise for medical expenses to be incurred abroad for an aneurism, by contacting the Respondent’s customers. The witness said that the Complainant failed to produce any medical certificates in 2017 and all efforts to contact him failed, until he came to resign on 31^stAugust 2017.

Mr Robertson said that at the end of December 2016, he sought the return of the company’s mobile phone which had been supplied to the Complainant, as he continued to be unavailable for work. Therefore, the only means of assigning work to him had been removed. He denied that the Complainant had contacted him seeking employment and said that the work in Cavan referred to when the Complainant was given a lift to the site by Mr M. was carried out in April/May 2016 and not in 2017. Mr Robertson said that when he retrieved the company phone, he transferred all calls to his own phone and discovered that the Complainant was carrying out ‘nixers’ which is now part of a separate investigation. He said that the last time he had any contact with the Complainant (prior to the hearing before the Adjudication Officer) was the day the Complainant arrived at the company premises to resign, on 31^stAugust 2017.

At the Court's request, the Respondent produced copies of the T-Card System showing details of work carried out in the period from September 2016 until March 2017. This system records time arrived on site, products used and the time the work finished. In his evidence to the Court, Mr Robertson said that this information had been completed on a hand-held device, until it was transferred to the company supplied phone and completed on an App on that phone. The changeover occurred about three years ago. In his evidence, the Complainant said that in 2017 he recorded his work on a hand-held device.

The reports supplied to the Court show that the Complainant carried out work for the Respondent in 2016, however, there are no entries in the Complainant’s name for any work in 2017. Further reports were supplied showing work for 2017 in the companies mentioned by the Complainant for work he alleged he completed in 2017, however, the Complainant is absent from all reports generated in 2017. The Respondent also submitted copies of letter written at the end of February 2017 to its customers by the Complainant seeking financial support for an operation he intended to have for a serious medical condition. The letter stated,“I am making an appeal for help so I can return to work”. These documents support the Respondent’s position that the Complainant was on unauthorised leave in 2017.

The Law Applicable

Section 86(1) Workplace Relations Act 2015 has amended sections 19, 20 and 23 of the Organisation of Working Time Act 1997. This amendment provides that employees will accrue statutory annual leave entitlement while on certified sick leave, so that on termination of employment, payment in lieu of untaken annual leave will apply to leave which was untaken as a result of illness in circumstances where the employee leaves the employment within a period of 15 months following the end of the leave year during which the leave entitlement accrued. This amendment was brought into Irish law to ensure the annual leave provisions of the 1997 Act were in line with the annual leave provisions of the EU Working Time Directive as interpreted by the Court of Justice of the European Union (CJEU) in the joined Cases C-520/06 and C-350/06Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214 .

However, it is noted that in the instant case, the Complainant was not on certified sick leave for the period in question, therefore he cannot benefit from the provisions of section 86(1) of the 2015 Act. On that basis the Court cannot find in favour of the Complainant’s claim for outstanding annual leave under the Act.


Conclusions of the Court

• Annual Leave Claim

• Public Holiday Claim

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
18/09/2020	Deputy Chairman