Complainant

Respondent

Anonymised Parties

General Operative

Tyre Distributor

Representatives

John Lynch John Lynch & Company Solicitors

Fiona Egan  Peninsula

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

CA-00036610-001

10/06/2020

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

CA-00036610-002

10/06/2020

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

CA-00036610-004

10/06/2020

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

CA-00036610-005 WITHDRAWN

10/06/2020

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

CA-00036610-006 WITHDRAWN

10/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036610-007

10/06/2020

The Complainant commenced employment on 9 September 2019 as a general operative with the Respondent. His work was mainly delivery and tyre repair services. Most of his workdays comprised of travelling to different locations in a company supplied van.   His employment contract was terminated on the 14 January 2020.  His weekly salary for a 39-hour week was €392 with a regular non-taxable element of €137.89 giving him a net sum of €500. The Complainant contends that he did not receive a statement of his terms and conditions of employment, that he did not receive proper work breaks, that the Respondent unlawfully deducted a sum from his wages and that he did not receive his minimum notice on termination of employment. The Respondent denies all complaints.     

CA-00036610 –001 Complaint under Section 7 of the Terms of Employment (Information) Act 1994:

The Complainant submits that he did not receive a written copy of his terms of employment contrary to section 3 of the Terms of Employment (Information) Act 1994. His representative wrote to the Respondent on this issue, amongst other things, on 27 January 2020. The Respondent sent a copy of a purported contract dated 1 October 2019, which was unsigned. The Complainant gave evidence that he never received such a copy. Furthermore, he submits that his commencement date was 9 September 2019 not October 1, 2019.

CA-00036610-002 Complaint section 27 of the Organisation of Working Time 1997:

The Complainant submits that he was not afforded lunch breaks, at any time, in his daily work period between 9am and 6pm. He submits that the volume of work he carried out for the Respondent in delivery and repair duties away from the depot did not allow him the opportunity to take work breaks in accordance with section 12 of the Organisation of Working Time Act 1997.

CA-00036610-004 Complaint under section 6 of the Payment of Wages Act 1991:

The Complainant asserts there was an unlawful deduction of €500 from his wages without agreement or authority by statute, in contravention of section 5 of the Payment of Wages Act 1991. Evidence was submitted that the Respondent supplied the Complainant tyres at a staff discount for a business the Complainant ran, independently of his employment. The Complainant in evidence admits that he had an outstanding bill for tyres upon termination of his employment but that the Respondent deducted €500 euro from his final wage, without his permission, to offset the sum owed. The Complainant gave evidence that he has since settled the outstanding balance on the bill with the Respondent. 

CA-00036610-007 Complaint under Section 12 of the Minimum Notice and Terms of Employment Act 1973:

The Complainant submits that he did not receive his statutory minimum notice of one week in contravention of section 4(2)(a) of the Minimum Notice and Terms of Employment Act 1973. The Complainant, in evidence, acknowledged that the Respondent paid him €500 for the week commencing Monday 13 January 2020 and that his employment terminated on Tuesday 14 January 2020. The Complainant submits that there is a payment, under the Act, outstanding for 18,19,20, and 21 January 2020.

CA-00036610 –001 Complaint under Section 7 of the Terms of Employment (Information) Act 1994:

The Complainant was provided with a Contract of Employment on commencing his employment by Mr A, Director of the Respondent. He was requested to bring it home, read through it and return one copy signed, to the Respondent. Despite numerous requested made by Mr A, for which he gave evidence, the Complainant failed to sign a copy of same and return a copy to the Respondent.

CA-00036610-002 Complaint section 27 of the Organisation of Working Time 1997:

The Complainant lodged these claims on the 10/06/2020. The Respondent submits that only a narrow time window of breaks can be the subject of the complaint. The Respondent cites section 27 of the Organisation of Working Time Act 1997 as amended, to show that complaints that an employer has contravened any “relevant provision” should be presented to the Director General of the Workplace Relations Commission. The complaint must be presented within six months of the alleged contravention unless the adjudication officer is satisfied that failure to present the complaint within that period was due to reasonable cause. The Respondent submits that for the purposes of this claim, where no prior notice of reasonable cause is given, the relevant period of employment for rests and interval at work falls between 10 December 2019 to 14 January 2020.

The Respondent submits that the Complainant has failed to particularise his claim in any form. The Respondent equally submits that the Claimant has not worked any shifts which would prevent him from receiving rest his breaks throughout the working day as stipulated in his contract.

Mr A gave evidence that he witnessed the Complainant take his daily breaks when the Complainant was not out on the road and is not aware of any occasion that he was prevented from taking such breaks.

 The Respondent exhibits van tracker evidence of when the Complainant worked as a Driver on the road.

CA-00036610-004 Complaint under section 6 of the Payment of Wages Act 1991:

The Respondent submits that employees can avail of a preferential rate for purchase of tyres.  On 14 January 2020 a sum of €1073 was due to the Respondent in respect of tyres purchased by the Complainant for a business the Complainant operated independently of his employment with the Respondent. 

Mr A attests that he spoke with the Complainant on 14 January 2020 and sought his agreement that the sum of €500 would be offset against his wages for his final week. He further attests that the Complainant agreed with the Respondent and the Respondent submits there was agreement to this arrangement. The Respondent also submits that the

Claimant has since discharged the outstanding balance of €573 in respect of the same matter, which signifies prior agreement on the deduction.

CA-00036610-007 Complaint under Section 12 of the Minimum Notice and Terms of Employment Act 1973:

The Respondent submits that the Claimant was paid in lieu of the one weeks’ notice

to which he was entitled.

CA-00036610 –001 Complaint under Section 7 of the Terms of Employment (Information) Act 1994:

The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, where the pertinent sections provide as follows:

 (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that …

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order…

… (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week…

The Complainant submits that he never received a statement of his terms and conditions from the Respondent during the period he was employed. The Respondent submits that a contract of employment containing his terms and conditions of employment were given to the Complainant on the first day of work. However, the copy of the contract exhibited by the Respondent is dated 1 October 2019, though the start date in uncontested evidence was 9 September 2019. It is immediately clear both from the document and the further examination of Mr A that the Complainant did not receive his core terms within 5 days of the commencement of his employment, in contravention of section 3 (1A).  I preferred the evidence of the Complainant on this issue and I also conclude on the balance of probabilities that he did not receive his more detailed terms after two months from commencement of employment, in further contravention of section 3(1) of the Act.  

 I find that the Respondent has breached its obligation to the Complainant on two counts under section 3 of the Act. In  On the issue of redress I am directed by the Labour Court in its decision in  Morehampton Foods Ltd v Gibbons TED 18/2017,  where the Court  confirmed that a failure to comply with s.3 “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  

Redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3, 4, 5, 6or 6C  shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977. 

 It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. No evidence was submitted that the non-receipt of terms of employment created any hardship for the Complainant nor did he seek such terms during his employment. I therefore find that the complaint is well founded but that compensation should be at the lesser end of the scale. I order the Respondent to pay the Complainant the sum of €500 equivalent to one week’s net remuneration.  

CA-00036610-002 Complaint section 27 of the Organisation of Working Time 1997:

The applicable law on ‘rests and intervals at work’ is provided for at section 12 of the Organisation of Working Time Act 1997, as amended, where it provides:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25(1) of the Act requires an employer to retain records showing compliance with the Act. In relation to the applicable burden/onus of proof for claims under the Act, Section 25(4) provides:

‘Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.’

In a preliminary point on this complaint the  Respondent cites section 27 of the Organisation of Working Time Act 1997, as amended by section 8 of the Workplace Relations Act, 2015, to show that complaints that an employer has contravened any “relevant provision” should be presented to the Director General of the Workplace Relations Commission within six months of the alleged contravention unless the adjudication officer is satisfied that failure to present the complaint within that period was due to reasonable cause. The Respondent submits that for the purposes of this claim, where no prior notice of reasonable cause is given, the relevant period of employment for rests and interval at work falls between 10 December 2019 to 14 January 2020. I am satisfied that the aforementioned period, as submitted by the Respondent, is the reckonable period in this instance.   

In The Tribune Printing & Publishing Group v Graphical Print & Media Union [2004] E.L.R. 222, the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks: “Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.” The Respondent in this case exhibited copious ‘GPS tracker’ documentation to show that the van driven by the Complainant had numerous stops. However, I find that though this may well be an accurate record of geographical location and activity, it cannot be held as a decipherable record to fulfil the burden of proof imposed on the Respondent by section 25 of the Act. Though the Complainant has not altogether given a fully detailed account of when he was not afforded breaks I am satisfied that the Respondent’s business was conducted in such a manner that its smooth operation depended upon the Complainant taking breaks only when possible. There was no system in place for ensuring breaks and/or compensatory breaks would be taken, and I am therefore satisfied, on the balance of probabilities, that the Act has been contravened as alleged.

The relevant period of employment for rests and interval at work falls between 10 December 2019 to 14 January 2020. Having considered all the evidence on this complaint I find that the complaint is well founded, and I direct the employer to pay to the employee compensation of €250, which is the equivalent of approximately 20 hours remuneration.

CA-00036610-004 Complaint under section 6 of the Payment of Wages Act 1991:

The relevant provisions of Section 5 of the Payment of Wages Act 1991 provide:

… (2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless–

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The Respondent described an arrangement with the Complainant whereby the Complainant received tyres at a discount rate for a separate business carried on by the Complainant. Evidence was given by Mr A that there was an outstanding bill of €1073 for the tyres owed to the Respondent in the final week of the Complainant’s employment and that he agreed with the Complainant that his final week’s wages of €500 would be offset against this bill. The Complainant denied there was such an agreement. However, the Complainant attested that he subsequently paid the Respondent the sum of €573 outstanding on his bill which was a tacit acceptance that the €500 wage deduction was offset against his debt, The Complainant furthermore accepted that he ultimately suffered no loss because of the deduction. I prefer the evidence of the Respondent on this issue i.e. that there was agreement on the wage deduction, and I conclude that the complaint is not well founded under section 6(2) of the Payment of Wages Act 1991.

CA-00036610-007 Complaint under Section 12 of the Minimum Notice and Terms of Employment Act 1973:

Section 4 of the minimum notice sets out the relevant minimum statutory notice:

 (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week…

The redress provision at section 12 of the Act states:

 (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employee under section 6 may include such directions as the adjudication officer considers appropriate.

The Respondent claims that he paid the Complainant his full week’s wage of €500 in lieu of notice when he terminated his contract of employment on Tuesday 14 January 2020. The Complaint contends that he is due four days pay. I am satisfied that the actual loss to the complainant is two days pay as he had already received three days in lieu. I find that the Respondent contravened the Act by not paying the Complainant his full weeks wage in lieu of notices and I direct the Respondent to pay compensation of €200.

CA-00036610 –001: Complaint under Section 7 of the Terms of Employment (Information) Act 1994:

I find that the complaint is well founded, and I order the Respondent to pay the Complainant compensation of €500.

CA-00036610-002 Complaint section 27 of the Organisation of Working Time 1997:

I find that the complaint is well founded, and I direct the Respondent to pay to the Complainant compensation of €250.

CA-00036610-004 Complaint under section 6 of the Payment of Wages Act 1991:

I find that the complaint is not well founded.

CA-00036610-007 Complaint under Section 12 of the Minimum Notice and Terms of Employment Act 1973:

I find that the Respondent contravened the Act. I direct the Respondent to pay the Complainant compensation of €200.

Terms of Employment (Information) Act 1994, Organisation of Working Time Act 1997, Payment of Wages Act 1991, Minimum Notice and the Terms of Employment Act 1973,