ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021156

Parties:

	Complainant	Respondent
Anonymised Parties	Diving Technician	Underwater Engineering Services Provider

Representatives

Mary Minchin, Kearney Roche and McGuinn Solicitors, Ronan Quinn BL

Jonathan Cullen, Ensor O'Connor Solicitors, Will Fitzgerald BL

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00027984-001	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027984-002	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027984-003	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00027984-004	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00027984-005	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00027984-006	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00027984-007	26/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00027984-009	26/04/2019

Date of Adjudication Hearing: 16/10/2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the presentation by an employee of a complaint (or complaints) of a contravention (or contraventions) by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, which is made to the Director General and which has been referred to the Adjudication services, an Adjudicator is obliged to make all relevant inquiries into the complaint or complaints.

As the Adjudicator assigned to deal with these matters, my obligation is to hear these complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.

It is appropriate that I hear the oral evidence of the parties and their witnesses and take account of any supportive evidence tendered in the course of the hearing.

The Complainant herein has referred many Complaints (under Schedule 5) for consideration:-

The Complainant herein has referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.

Pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 the Complainant has presented a complaint that his Employer has not complied with Section 3 of the Act in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain (particularised) Terms of the employment (as specified in Section 3 of the 1994 Act). In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four week’s remuneration such that is just and equitable in all the circumstances.

The Complainant herein has further referred complaints of contraventions of Section 5 of the Payment of Wages Act, 1991. Section 5 provides that an Employer shall not be entitled to make any deduction from an Employee’s remuneration (save as where might be expressly provided under law). Pursuant to Section 6 of the said 1991 Act, in circumstances where the complaint is deemed to be well founded, compensation in the amount so specified may be awarded.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended) the Complainant has presented complaints of contravention of certain obligations imposed on the Employer which may be adjudicated upon.

A decision of an adjudication officer under the Organisation of Working Time Act 1997 shall do one or more of the following:

Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years’ remuneration.

Background:

The Complainant has brought a series of complaints against his previous employer by way of workplace relations complaint form dated the 26th of April 2019. I note that the Complainant’s employment was terminated on the 30th of October 2018 and that these complaints are brought just before the expiration of the six month period allowable.

I further note that the Complainant has brought a stand-alone claim of Unfair Dismissal which has previously been dealt with.

Summary of Complainant’s Case:

The Complainant was represented at the hearing and he gave evidence on his own behalf and I heard representations made on his behalf by his representation.

Summary of Respondent’s Case:

The Respondent did not attend this hearing. The Respondent was at the appointed location but was only present to deal with another, unrelated matter. In the circumstances the Respondent (under advisement from its representation) opted not to defend these proceedings.

Findings and Conclusions:

I have carefully listened to the evidence adduced by the Complainant. In evidence I was shown a Contract of Employment which covered the final month of the Complainant’s employment and therefore was extant – setting out all relevant terms and conditions for the short period of employment in the six-month period prior to the issuing of the Complaint Form.

The Complainant was not paid in lieu of the Notice period provided for in the Contract of Employment.

The Complainant was unable to demonstrate any breaches of certain complaints under the Working Time Act for the short period of employment in the six-month period prior to the issuing of the Complaint Form. That is to say, there was no evidence of his having worked excessive hours, excessive night hours or without breaks.

The Complainant was unable to demonstrate unlawful deductions, as understood in the Payment of Wages Act, having been made in the course of the short period of employment in the six-month period prior to the issuing of the Complaint Form.

I am satisfied that the Complainant was due annual leave at the time of the termination of his employment and that this should be paid to him. This claim for unpaid accrued annual leave had been made twice by him in the Complaint form.

Decision:

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

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

CA-00027984-001 The Complaint herein is well founded. The Complainant is entitled to his Minimum Notice at the four weeks provided for in his Contract of Employment. His Gross weekly earnings are in the amount of €800.00 per week.

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

CA-00027984-002 The Complaint herein is not well founded. The Complainant had a Contract of Employment.

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

CA-00027984-003 The Complaint herein is not well founded. No evidence adduced of any unlawful deduction.