Complainant

Respondent

Parties

Brian  Crowley

Clare Foods Ltd

Representatives

Self 

Frank Doherty, Doherty Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00040639-001

26/10/2020

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

CA-00040639-002

26/10/2020

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

CA-00040639-003

26/10/2020

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

CA-00040639-004

26/10/2020

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

CA-00040639-006

26/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00040639-008

26/10/2020

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

CA-00040639-009

26/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040639-010

26/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040639-011

26/10/2020

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

CA-00040639-012

26/10/2020

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

CA-00040639-013

26/10/2020

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

CA-00041361-001

02/12/2020

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

CA-00040639-015

28/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040639-016

28/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00040639-017

28/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00040639-018

28/01/2021

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

CA-00040639-019

28/01/2021

The Complainant commenced his employment with the Respondent on 25th February 2020 as a delivery driver. He resigned his position on 18th October 2020.

The parties confirmed at the adjudication hearing that the Complainant was paid €470 net a week.

The Complainant referred a number of complaints to the Director General of the WRC on 26th October 2020, 2nd December 2020 and 28th January 2021.

It was brought to the parties’ attention that the Complainant referred a number of complaints to the Director General of the WRC on 26th October 2020, alleging the following:

CA-00040639-001 – that in the period from February 2019 to 31st March 2020 he was paid below the national minimum wage (section 24 of the National Minimum Wage Act, 2000).

CA-00040639-002 – that in the period from February 2019 to 31st March 2020 he was not given compensation for working on a Sunday (section 27 of the Organisation of Working Time Act, 1997).

CA-00040639-003– that in the period from February 2019 to 31st March 2020 the Respondent has made unlawful deductions from the Complainant’s wages (section 6 of the Payment of Wages Act, 1991).

CA-00040639-004 – that in the period from February 2019 to 31st March 2020 the Respondent has paid the Complainant less than the amount due to him (section 6 of the Payment of Wages Act, 1991).

CA-00040639-008 - that in the period from February 2019 to 31st March 2020 the Complainant did not receive the minimum rates of pay set out in an Employment Regulations Order.

CA-00040639-009 - that in the period from February 2019 to 31st March 2020 the Complainant did not get a daily rest period (section 27 of the Organisation of Working Time Act, 1997).

CA-00040639-010 – that in the period from February 2019 to 31st March 2020 the Complainant did not get breaks (Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012).

CA-00040639-011 - that in the period from February 2019 to 31st March 2020 the Complainant was required to work more than the maximum number of hours (Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012).

The above complaints relate to the period from February 2019 to 31st March 2020. During the period from 1st April 2020 to the termination date the Complainant did not perform any work for the Respondent, he was laid off and in receipt of the Pandemic Unemployment Payment.

The above complaints were referred to the Director General of the WRC on 26th October 2020. Therefore, the cognisable period that may be investigated is from 27th April 2020 to 26th October 2020. The Complainant resigned his position on 18th October 2020.

The Complainant made an application for extension of the time limit. The parties’ submissions in that regard were as follows:

Summary of the Complainant’s case in respect of the preliminary matter:

The Complainant submitted that nobody made him aware of the time limits. He said that he made his complaint during the Covid-19 pandemic and he was not aware of the time frame. He argued that he telephoned the WRC at some stage and was not advised of the time limits. He also submitted that he was not sure whether he would be required to provide a reference for a new employer and he delayed the complaint process and his resignation for that reason.

In response to the Respondent’s assertion that the Complainant started new employment on 15th September 2020 and was not required to provide a reference, the Complainant argued that it is not uncommon that a reference is asked for in the first month of employment.

Summary of the Respondent’s case in respect of the preliminary matter:

The Respondent submitted that there was no excuse for the delay. The Complainant started new employment on 15th September 2020, and he was not required to provide a reference. The Respondent argued that the Complainant is attempting to blame others, including the WRC, for his failure to submit his complaints in time.

Findings and conclusions on preliminary matter – time limit:

The first matter I must decide is if I have jurisdiction to hear the complaints that were submitted outside the requisite time limit.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“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.”

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows: 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

The Complainant confirmed that he was laid off and in receipt of the Pandemic Unemployment Payment from 1st April 2020, he did not perform any work for the Respondent after 31st March 2020. Accordingly, the initiating complaint referral form in respect of the above complaints must have been submitted by 30th September 2020. The complaints were referred to the WRC on 26th October 2020, I find that the herein complaints have been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015.

I acknowledge the Complainant’s assertion that he was not aware of the time limits. However, as the Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral form:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Having carefully considered all evidence available to me, I find that the Complainant has not shown reasonable cause to empower me to extend the time limit for submission of his claims.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate these complaints.

The Complainant submitted that he did not receive the appropriate payment in lieu of notice of termination of his employment.

At the adjudication hearing, the Complainant confirmed that he resigned his position by email sent to the Respondent on 18th October 2020.  The Complainant did not offer to work during his notice period.

The Respondent submitted that the Complainant resigned his position on 18th October 2020. The Complainant has been in new employment since 15th September 2020. The Respondent asserted that it could not give notice or request the Complainant to work during his notice period as he had already started a new job.

The Minimum Notice and Terms of Employment Act 1973 outlines in Section 4 the minimum notice an employer is required to give 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. However, the Act does not require that an employer makes any payment in respect of notice when it is an employee who terminated his employment.

There was no dispute in the within case that it was the Complainant who resigned his position. Accordingly, as the Complainant resigned his position, there is no obligation on the Respondent to give notice and the issue of minimum notice on termination of employment by the Respondent does not arise.  For that reason, no breach of the Act occurred.

I declare this complaint to be not well founded.

The Complainant submitted that he did not receive his annual leave entitlements.

At the adjudication hearing, the Complainant confirmed that a sufficient payment was made to him in respect of the outstanding annual leave. However, he argued that the payment was delayed.

The Respondent submitted that a payment of €500 in respect of the outstanding annual leave was made to the Complainant on 2nd September 2021. The Respondent noted that an offer of a payment in respect of annual leave entitlements was made to the Complainant in March 2021 following a WRC inspection. The Complainant refused to accept the payment at the time.

Having considered the submissions of the parties, I find that the Complainant received a payment in respect of his outstanding annual leave entitlements. I note that an attempt to resolve the matter and pay any outstanding entitlements was made by the Respondent in March 2021.

I, therefore, find that this complaint is not well founded.

I declare this complaint to be not well founded.

The Complainant submitted that he had to leave his job due to the conduct of his employer.

The Complainant submitted that he was advised by the Respondent to claim the PUP from Wednesday 1st April 2020. He was then contacted on 15th June 2020 and asked to resume his employment on 22nd June 2020. The Complainant asserted that, as he heard nothing more, he contacted the Respondent on 22nd June 2020 to get more details. The Respondent was vague and unsure whether the van the Complainant had used would be roadworthy. The Complainant submitted that he later learned from his customers that the Respondent had taken on an employee who had finished his employment with the Respondent two years previously to do the Complainant’s job. The Complainant submitted that he asked the Respondent to confirm his employment status in writing given this new information and he was told to keep claiming the PUP.

The Complainant submitted that he called the Respondent and left a message on 6th July 2020 but received no reply.

The Complainant said that he found out that the person employed to do his job had left and had been replaced by another new employee, and as the latter did not have the appropriate licence to drive any of the Respondent’s trucks, the Respondent hired a smaller van so he could do the job the Complainant was employed to do.

The Complainant argued that two new people were employed but he had no notification when he would be returning to work. He resigned his position by email on 18th October 2020.

The Complainant argued that the Respondent manipulated the timelines in respect of the employment of the new drivers.

The Complainant submitted that he started a new job on 15th September 2020 and suffered no loss as a result of the dismissal. However, he argued that in the period prior to the dismissal he had suffered loss as a result of being placed on the PUP and not being brough back to work in June 2020.

In reply to the Respondent’s submission, the Complainant argued that after Employee 1 handed in his notice, the Complainant covered his route.

The Respondent submitted that prior to Covid-19 it had four employees delivering food to various areas, their customers would include hotels, restaurants, shops, butchers, etc.

A review of the Sales Report for four months of 2019, i.e. 1st March 2019 – 30th June 2019, in comparison to the four months of 2020, i.e. 1st March 2020 – 30th June 2020 shows a decline in sales of approximately 44 percent. The operation therefore was operating on a reduced capacity. This coincides with the first lockdown commencing in or around 27th March 2020. Due to this extraordinary event, outside of the Respondent’s control, the Complainant was advised to claim PUP as there was no longer sufficient work or demand for four drivers. One employee (Employee 1) handed in his notice in February 2020 and he was replaced by Employee 2 in March 2020 but due to the lockdown, Employee 2 was unable to commence work until 19th June 2020 when restrictions were eased. Employee 2 was therefore replacing Employee 1 and not the Complainant. The Respondent exhibited a copy of email dated 10th March 2020 from the Limerick Post newspaper advising that the advert for a van salesman would be published in the paper on 12th March 2020. The Respondent argued that this was well in advance of the date that the Complainant stated that he was advised to claim the PUP which was Wednesday 1st April 2020. Due to Covid there were two trucks delivering goods as opposed to four trucks. Furthermore, a large truck was used for the delivery and the Complainant did not have the appropriate licence. This situation was explained to the Complainant and he was advised that once the company is back up and running to full capacity where four drivers were required that he would be contacted once more. It is incorrect to say that Employee 2 was servicing the Complainant’s customers or doing his job.

At the adjudication hearing, the Respondent submitted that in February 2020 one of the employees (Employee 1) handed in his notice. Following that, on 12th March 2020 an advert was placed in a local newspaper seeking a replacement. A new employee (Employee 2) responded to the add and was offered the job. The Respondent argued that the Employee 2 was in situ prior to the Complainant going on the PUP, and therefore he was not replacing the Complainant.  The Respondent confirmed at the hearing that, due to Covid Employee 2 did not, in fact, start his employment until June 2020.

The Respondent argued that Employee 2 had a C1 driving licence and the Complainant had a C licence. The Respondent confirmed that Employee 2 left the Respondent on 25th September 2020. He was replaced by Employee 3 who had a category C driving licence. The Respondent conceded that he is driving a smaller truck, but argued that his route is different to the Complainant’s.  

Section 8 of the Unfair Dismissals Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of Section 6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which defines “constructive dismissal” as “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84 it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

The Complainant must have acted reasonably in tendering his resignation. Dr D. Ryan in the book “Redmond on Dismissal Law” argues that “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee’s resignation. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints”.[1]

The Complainant in the within case commenced his employment on 25th February 2019. In or around 31st March 2020, the Complainant was put on lay off and instructed by the Respondent to apply for the Pandemic Unemployment Payment (PUP).

There was no dispute that the Complainant was contacted by the Respondent on 15th June 2020 with a view to discussing his return to work. This never materialised. The Complainant contacted the Respondent in or around 22nd June 2020 but he was not required to return to work at that time. He was never offered a return to his position and there was no further communication from the Respondent after June 2020. The Complainant asserted that he further contacted the Respondent on 6th July and left a message but received no response.

I note the Respondent’s assertion that Employee 2 did not replace the Complainant, as he commenced employment prior to the Complainant being laid off. I also note that the Respondent clarified that Employee 2 did not, in fact, start his employment until 19th June 2020. The Respondent argued that it had to adjust its business and required drivers with a category C1 licence.  While the Respondent asserted that Employee 2 had a category C1 driving licence and the Complainant did not, there was no dispute that following Employee 2’s resignation, another new employee was recruited. This employee did not have the required driving licence and a smaller truck was provided for him as of 28th September 2020.  Even at this late stage there was no contact made with the Complainant in an attempt to discuss his return to work. Given the lack of any procedures in the workplace and in the absence of any communication from the Respondent, it is understandable that the Complainant believed that the Respondent did not intend to bring the lay off to an end and that he would not be returning to his employment.

In the circumstances, I find that the Complainant has established that the conduct of the Respondent was such that he had no option but to resign his position. Accordingly, I find that the Complainant was constructively dismissed.

Section 7 of the Unfair Dismissals Act provides:

“Redress for unfair dismissal

(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 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 reference 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.”

Having considered the circumstances of the case, I find that the appropriate form of redress is compensation. I note that the Complainant resigned his position on 18th October 2020. The Complainant secured new permanent and comparable employment from 15th September 2020 and, therefore, the Complainant had suffered no loss as a result of the dismissal. The alleged loss, if any, which the Complainant argued resulted from being placed on the PUP had occurred prior to the termination of the Complainant’s employment and cannot be attributed to the dismissal.

Having carefully considered the parties’ submissions and all evidence adduced in this case, I consider compensation of four weeks’ pay as just and equitable having regard to all the circumstances of the within case. The parties confirmed at the hearing that the Complainant was paid €470 net per week.

I declare this complaint to be well founded and I require the Respondent to pay the Complainant compensation in the sum of €1,880.

The Complainant submitted that he did not receive a statement in writing on his terms of employment.

The Respondent conceded that the Complainant was not furnished with a written statement of his terms of employment.

The Terms of Employment (Information) Act, 1994 stipulates as follows:

3. Written statement of terms of employment

(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, 

(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,

7(d) in relation to a complaint of a contravention under 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.

There was no dispute that the Complainant had not been furnished with a statement of his terms of employment by the Respondent.

Section 7 of the Act empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having carefully considered the circumstances of this case, I find that the complaint is well founded and award the Complainant four weeks’ remuneration in compensation which I deem to be an amount that is just and equitable in the circumstances of this complaint.

I declare this complaint to be well founded and I require the Respondent to pay the Complainant the sum of €1,880 which is equivalent to four weeks’ pay.

The Complainant submitted that the Respondent was not keeping statutory employment records as required under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

At the adjudication hearing, the Respondent put it to the Complainant that he admitted that a tachograph was fitted in the Complainant’s vehicle and, therefore, records were kept. The Complainant replied by disclosing that the Respondent does not have all the records, as the Complainant removed from the vehicle, without the Respondent’s knowledge, a disc with records for a period of three months.

The Respondent rejected the claim. The Respondent noted that the Complainant confirmed that his vehicle was fitted with a tachograph and the records were kept.

Following the declaration by the Complainant that his claim relates to records he removed from the vehicle, the Respondent informed the hearing that the matter of the unlawful removal of the Respondent’s property would be addressed in an appropriate forum.

Regulation 12. Obligations on employer of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 stipulates:

An employer shall do each of the following in relation to each mobile worker employed by him or her:

(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

(c) include time worked for another employer in the calculation of the mobile worker's working time;

(d) keep records which are adequate to show that these Regulations are being complied with;

(e) retain records referred to in this Regulation for at least 3 years after the end of the period covered by those records;

(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

(h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer's possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

It was not in dispute that the vehicle driven by the Complainant was properly fitted with a tachograph. The Complainant did not contest that the Respondent did keep the relevant records at the relevant time. However, the Complainant argued that his claim relates to the records he had removed without the Respondent’s consent from the vehicle prior to the cessation of his employment. The Complainant argued that, consequently, the Respondent is not in possession of some records and, therefore it is in breach of the Regulation 12. I find this disclosure by the Complainant troubling. I find the fact that the Complainant, on his own evidence, had removed the relevant records from the vehicle and subsequently referred a complaint in relation to these very records disturbing. While I acknowledge that the Respondent cannot be in possession of the records, which the Complainant removed, I find that the Complainant cannot argue that he has a bona fide claim in these circumstances.

I declare this complaint to be not well founded.

The Complainant submitted that the Respondent would not provide records when required.

At the adjudication hearing, the Complainant clarified that the complaint relates to payslips and not to the records the Respondent is required to provide under the Regulation 12. The Complainant withdrew the complaint at the hearing.

The Respondent rejected the complaint.

The Complainant withdrew this complaint at the adjudication hearing.

The complaint was withdrawn at the adjudication hearing and, therefore, I do not make a decision.

The Complainant submitted that he did not receive the terms and conditions as laid down by an Employment regulation Order.

The Complainant withdrew this complaint at the adjudication hearing.

The Respondent rejected the complaint.

The Complainant withdrew this complaint at the adjudication hearing.

This complaint was withdrawn at the adjudication hearing and, therefore, I do not make a decision.

The Complainant submitted that he did not receive a statement of his core terms in writing.

The Respondent conceded that a statement of core terms of employment was not furnished to the Complainant. The Respondent argued that the complaint was submitted outside the prescribed time limit.

There was no dispute that the Complainant commenced his employment with the Respondent on 25th February 2019. The Respondent conceded that the Complainant was not furnished neither with a written statement of his terms of employment, which was dealt with above in specific complaint bearing reference number CA-00040639-015, nor with a statement of his core terms, subject matter of this claim.

Section 3 of the Act specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subs.(1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than two months after the date of commencement of employment.

The Respondent argued that the within complaint was statutory barred.  

Section 41 of the Workplace Relations Act, 2015 Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission that his/her employer has contravened Section 3 of the Terms of Employment (Information) Act, 1994 before the expiration of the six months period beginning on the date of contravention to which the complaint relates:

“(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.”

Subsection (8) provides that:

“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.”

The contravention of Section 3 of the Act is a subsisting and a continuing contravention as long as after the initial relevant period the employee remains an employee not in possession of a statement. If no statement was provided at any stage during the employment relationship, and this came to an end, the employee could refer a complaint within six months from the last day of their employment.

There was no dispute in the within case that the Complainant was not provided with a written statement of his terms of employment. He resigned his position on 18th October 2020 and he submitted the within complaint on 28th January 2021. Therefore, the complaint was referred within the time limit prescribed by the Act.

In respect of the substantive matter, Section 7 of the Terms of Employment (Information) Act, 1994 stipulates:

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

(2) 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 3, 4, 5, 6 or 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, 6 or 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 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.

In Morehampton Foods Limited v dean Gibbons TED1718 the Labour Court held as follows:

“It is clear a failure to comply with s.3 constitutes a single contravention of the Act. The extent of non-compliance is a matter that goes to the gravity of the contravention and that can properly be taken into account in deciding on redress and in particular in measuring the quantum of any compensation to be awarded. However, the extent of non-compliance or the gravity of the contravention cannot offset or supplant the clear provision of s.7(2)(d) of the Act.”

I do accept that the above determination addresses the matter of every omission from a statement mandated by Section 3 of the Act. However, I am of the view that should the legislature have intended for a separate compensation for a breach of subsection 1A, section 7(2)(d) would have been amended accordingly following the amendment of the Act to include subs.(1A).

As the Complainant has been awarded compensation for breach of Section 3 of the Act in CA-00060639-015 above, I find that this matter has been disposed of.  

I declare this complaint to be not well founded.

The Complainant confirmed the within complaint is a duplicate of the complaint bearing reference number CA-00040639-013, above.

 The Respondent rejected the claim.

 In light of my decision in the complaint bearing reference number CA-00040639-013, I find that this complaint has been disposed of.

I declare this complaint not well founded.

Unfair dismissal – Organisation of Working Time Act – Regulation 18 EC (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012- out of time complaints