Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Adrian Twomey Jacob and Twomey Solicitors

did not attend 

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-00035539-001

01/04/2020

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

CA-00035539-002

01/04/2020

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

CA-00035539-003

01/04/2020

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

CA-00035539-004

01/04/2020

The Complainant alleges he was unfair dismissed from his employment. It is further alleged that the Respondent was in breach of the Terms of Employment (information) Act, 1994 and the Organisation of Working Time Act, 1997.

35539-01 and 35539-03

The Complainant commenced working for the Respondent on 05.11.2014. Originally the complainant worked part-time. His hours varied from week to week depending on what work was available for him. During that period of his employment he was never furnished with a written statement of his terms and conditions of employment. He was not given a company handbook or any of the company policies or procedures.

In 2016, the Complainant was offered a full-time position, which he accepted. He worked Monday to Friday, approximately 41 hours per week.  Again, he was not given a written statement in relation to the change in his terms and conditions of employment.

35539-02

The Complainant’s hours varied depending on whether he was working around the Country or locally. He was never given a break, but he and his colleagues would take their break in the van when they were travelling to and from sites around the Country. The Respondent did not have a system where employees could clock in and clock out, nor did they have any timesheets the complainant was required to fill out. The Complainant does not know if the Respondent kept any records in relation to his days and hours of work.

35539-04

The Complainant worked on various sites around the Country. Normally the Respondent arranged for someone to collect them in the van and take him to those sites together with the other employees who were working on that site that day.

On the 24.10. 2019 the complainant was working at a site locally. He was removing and fitting a door. He didn't have the correct amount of cladding required to finish the job, so he went back to the Respondent’s premises to get what he needed. When there, he met one of the directors (male director) and he explained to him what it was he needed and why he needed it. The director became very cross with him and quickly an argument broke out. During that heated discussion the complainant brought up the issue of his working hours lack of breaks and overtime pay and asked why the various meetings he had requested, about those issues, had not happened. The complainant got very cross and stated that the company was a joke. At that juncture the female director entered the room and stated, “we are all on shite fucking wages here, if you don't like it you can fuck off”.

The male director, at that juncture did acknowledge that the complainant had requested various meetings in relation to the poor working conditions. In response to that, the female director said “if you don't like the conditions, the door is fucking big enough and you can fuck off out of it.”

The Complainant left the premises at that point and returned to finish the job on the door he had been working on. His understanding was that he had been dismissed because he wouldn't put up with the poor working conditions. From that date onwards, nobody from the Respondent called him and nobody came to collect him to take him to work. He later received a letter enclosing his final payslip and stating that if he needed a reference, he would be provided with one. On 05.11.2019 the Respondent furnished the complainant with a reference.

There was no communication between the Complainant and the Respondent following the altercation in the office in October 2019 other than when he received his final payslip and reference.

The Complainant was out of work for 14 weeks, following which he secured temporary employment for approximately 7 weeks. He was then out of work until 02.06.2019. He secured full-time employment at that juncture and is thankfully still working there. His gross weekly pay is now €495.55.

The complainant’s loss to date is €20,574.31. However, he does have an ongoing loss as his gross weekly pay is now less than it was when he was with the Respondent.

There was no appearance for or on behalf of the Respondent for this morning's remote hearing. I am satisfied due to various emails and letters sent by the Respondent to the WRC, that the Respondent was on notice of today's remote hearing and was in receipt of the hearing link.  By letter dated the 18.01.2021 the Respondent stated they had not received the complainant’s submissions and threatened High Court proceedings if they were not afforded “due process”. However, I note the Respondent’s letter date 30.06.2020 refers to the complainant’s complaint and addresses issues therein. Furthermore, the Complainant’s solicitor furnished the Respondent with a copy of the complaint form last week.

The Respondent, this week, made an application for a postponement. That application was refused. It was open to the respondent to apply again at todays hearing for a postponement and to outline any issues they had in relation to the hearing proceeding. They opted not to do that for reasons not known to me.

CA 35539-01

S3.— (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…”

The Complainant’s uncontested evidence was that he commenced working on a part-time basis for the Respondent in 2014. He did not at that time, or any other time during the course of his employment with the respondent received a written statement setting out his terms and conditions of employment.

The Complainant was in receipt of € 570.00 gross per week. On the basis that he was never furnished with any statement setting out his terms and conditions, the appropriate award is four weeks wages which is the maximum allowed by the Act.

The complaint is well founded. I award the complainant €2,280.00

CA 35539-03

S5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

 b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The Complainant’s uncontested evidence was that in 2016 he was offered a full-time position and he accepted it. His hours of work changed from working whenever work was available to a consistent Monday to Friday 39-hour week. He did work more than the 39 hours most weeks depending on where the job was located. When he moved to the full time position he was not notified by the Respondent of the nature and date of the change in is working conditions at the time or at all.

When considering the appropriate award, I note that the Complainant has been awarded the full jurisdiction of the Act in relation to his claim CA 35539 -001 which is a similar claim to this under the same act. On that basis the appropriate award is one weeks’ wages.

The complainant is well founded. I award the complainant € 570.00

CA 35539 -02

S12.— (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).

S25.—  (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 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.

S27 (3) A decision of an adjudication officer under section 41   of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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)   require the employer to comply with the relevant provision,

( c)   require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years  ’ remuneration in respect of the employee’ s employment. 

The complainant’s uncontested evidence was the he was never given time to have breaks. If they wanted a break they took it in the van on the way to the site or on the way home. That way, they could get more work done on site and not waste the time having breaks. The complainant also stated that there was no system in place to log his working hours.

There is an obligation on the Respondent to keep records of its employees work hours. There was no evidence of any records before me.

I found the complainant’s evidence to be credible. When assessing the appropriate award, I took into consideration the number of years the Complainant worked with no system in place to ensure he received his statutory breaks, 2014 – 2019, together with the Respondent’s failure to keep records in breach of Section 25 of the Act. In all the circumstances I conclude that  appropriate award is 12 weeks wages €6,840.00

CA 35539 -04

S6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

S7 -7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following F49 [ the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii)   if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.  ]

The Complainant’s uncontested evidence was that in October 2019 there was an altercation in the office with both the male and female directors of the company. During that altercation, on more than one occasion he was told in a very unpleasant way to leave if he didn’t like the conditions he was being asked to work in. He was left with the impression that he was being fired. If there was any ambiguity about that impression, the Respondent’s lack of communication with him from that date forward only served to clarify his belief. The only correspondence he received from the Respondent following the altercation was his “final payslip” and a reference.  I note from correspondence on the file that the Respondent has offered to re-instate the Complainant. That offer was furnished to the WRC and not to the Complainant or his legal representative.  Again, it was open to the Respondent to attend at the hearing today to make such an offer to the Complainant, but they did not.

I note that in terminating the Complainant’s employment no procedures whatsoever were followed thus denying the Complainant his right to natural justice and fair procedures.

In all circumstances I find that the complainant is well founded.

The complainant was out of work for a period of 14 weeks, after which he secured part time employment for a period of 7 weeks. Then in June 2019 he secured permanent fulltime employment. His gross weekly salary is now € 495.55 gross. The Complainant has an ongoing loss of €74.45 and his loss to date is €20,574.31. When calculating the appropriate award, I took into account that the complainant in no way contributed to the termination of his employment together with the fact that the Respondent completely denied him his right to fair and transparent process.

 In all the circumstances I find that the appropriate award is € 12,500.00.

CA 35539 -01 I award the complainant €2,280.00

CA 35539 -02 I award the complainant €6,840.00

CA 35539 -03 I award the complainant €570.00

CA 35539 -04 I award the complainant €12,500.00