Complainant

Respondent

Anonymised Parties

Excavator Driver

Construction Company

Representatives

Nigel Allen,  Nigel D. Allen & Co, Solicitors

Joe Bolger, ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031580-001

15/10/2019

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

CA-00031580-002

15/10/2019

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

CA-00031580-003

15/10/2019

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

CA-00031580-004

15/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031580-005

15/10/2019

The complainant was employed by the respondent on a motorway construction project commencing employment in October 2018.  The employment terminated in August 2019.  The complaints are in relation to the events leading to the termination of the complainant’s employment, annual leave entitlement and the alleged failure to supply a statement of the terms of the complainant’s employment.  The complaint was lodged on 15 October 2019.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complaints contained in this file was heard in conjunction with the complaint contained in file ref. No. ADJ-00027194.

The complainant did not receive his annual leave entitlement apart from two days’ leave when the motorway was officially opened.

The complainant did not receive a statement in writing setting out in writing his terms and conditions of employment.

The complainant was suspended from work without notice and never allowed resume employment.

The complainant was issued with a contract of employment.

A WRC inspection had found that the respondent’s records were in order.

The construction site abides by CIF rules as regards annual leave and the complainant received extra days off when he was moving home.

Complaint No. CA-00031580-001:

This is a complaint under the Organisation of Working Time Act 1997 to the effect that the complainant did not receive his paid holiday / annual leave entitlement.  The respondent’s Managing Director (MD) said that the site was unionised and operated in accordance with CIF rules which meant that the site closed for holidays at Christmas and in July, for all Public Holidays and for Good Friday.  The MD also said that the movements of the machine which the complainant operated were monitored by an independent company and these showed that the complainant did not work during these times.    The complainant, for his part, stated that he was not a member of a trade union and was not aware of a union operating on the site.  There was no mention to him regarding holidays and he could only recall work being stopped on two days at the official opening of the motorway in July for which he got paid.

There is obviously a direct conflict of evidence between the parties regarding this matter.  The respondent submitted records from a third party regarding the operation of the machine which it is alleged was operated by the complainant.  These records are not acceptable.  They relate to a machine and not to a person and are collected by a third party for a purpose that is completely separate than the issue before me.  The records do not specify who was using the machine.  The respondent failed to produce the records that are required to be compiled and kept in accordance with the Act.  A study of the payslips provided no assistance as they do not show any reference to holidays or annual leave.  Indeed, it has to be remarked that whilst the payslips show varying amounts for earnings each week the complainant’s bank statements show that an unvarying €800.00 was lodged by the respondent into his account every week (with the exception of the final payment).  The amount of €800.00 is a net figure and a study of the payslips indicate that the gross figure in this regard is €1176.72.

Section 25 of the Act states:

(1)   An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act (and, where applicable, the Activities of Doctors in Training Regulations) are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(4)  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 for 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 the absence of evidence to the contrary I have to accept that the complainant was not in receipt of his paid holiday / annual leave entitlement.  The reckonable period for this complaint is from 16 April 2019 to 15 October 2019, the latter being the date that the complaint was received by the WRC. 

Section 19 of the Act states:

(1)    Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

Leave year for the purposes of the Act is defined as “a year beginning on any 1st April”.

The complainant in his submission also complained that he did not receive his public holiday entitlement.  There was a total of four public holidays within the cognisable period, Easter Monday and the public holidays in May, June and August. 

I therefore find that the complaint is well founded and that the complainant is entitled to paid annual leave for the time that he worked in the cognisable period and for four public holidays.

Complaint No. CA-00031580-002:

This is a complaint under the Organisation of Working Time Act 1997 to the effect that the complainant was not compensated for the loss of his annual leave entitlement on leaving.  The issue of annual leave entitlements is dealt with in the previous complaint.

Complaint No. CA-00031580-003:

This is a complaint under the Terms of Employment (Information) Act 1994 to the effect that the complainant did not receive a statement in writing of his terms of employment.  Section 3(1) of that Act states:

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…..

The required particulars are then listed.

There is a conflict between the parties in this regard with the complainant stating in evidence that he never received any statement whatsoever from the respondent.  The respondent stated that a contract had been issued and produced a copy of this document for the hearing.  The complainant responded that the first sight he had of same was when he saw the respondent’s submission for this hearing.  The document in question has on it in writing a commencement date of 8 September 2019, a date that is clearly incorrect.  This was accepted as such by the respondent who claimed that it was a simple error.  This document was not signed by the complainant.  It was, however, signed by the MD and dated in handwriting as 22 October 2019.  The respondent did not explain why this date was incorrect also.  Having regard to all the evidence and based on the balance of probabilities I must decide that the document was not given to the complainant within the timeframe set out in the legislation.  I therefore find that this complaint is well founded.

Complaint No. CA-00031580-004:

This is a complaint under the Term of Employment (information) Act 1994 to the effect that the complainant did not receive a statement of his core terms in writing as per the provisions of that Act.  This complaint relates to Section 3(1A) of the Act which is not applicable in this case.  The issue of non-receipt of a written statement is dealt with in the previous complaint.

Complaint No. CA-00031580-005:

This dispute under the Industrial Relations Act 1969 was withdrawn at hearing by the employee.

Complaint No. CA-00031580-001:

For the reasons outlined above I find these complaints under the Organisation of Working Time Act 1997 to be well founded.  The complainant accepted that he had received two days leave when the official opening of the motorway occurred.  I therefore find that the complainant is due payment in respect of the equivalent of eight days and order the respondent to pay to the complainant the sum of €1,882.75 as compensation in this regard.  In addition, the respondent is to pay the sum of €941.37 in respect of public holiday entitlement.  The total sum of compensation due is therefore €2824.12.

Complaint No. CA-00031580-002:

This is a parallel complaint under the Organisation of Working Time Act 1997 to the above complaint and my findings in that regard deal with the issue.

Complaint No. CA-00031580-003:

This is a complaint under the Terms of Employment (Information) Act 1994.  As outlined above I find this complaint to be well founded as it is clear that the documentation produced at the hearing by the respondent could not have been given to the complainant within the time frame specified in the Act.  I therefore order the respondent to pay to the complainant the sum of €4,000.00 as compensation in this regard.

Complaint No. CA-00031580-004:

This is a complaint under the Terms of Employment (information) Act 1994 relating to the provision of a written statement in respect of core terms of employment.  The issue of the non-provision of a statement of employment has been dealt with in the previous complaint and this complaint is not well founded.

Complaint No. CA-00031580-005:

This dispute under the Industrial Relations Act 1969 was withdrawn at the hearing.  I am therefore not required to make a recommendation.

Terms of Employment (information) Act     Organisation of Working Time Act   Provision of Statement of Terms of Employment