Complainant

Respondent

Parties

Frederiq Onyang'o

Culmore Logistics Limited

Representatives

  Not represented

Not represented

Act

Complaint 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-00045382-001

27/07/2021

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

CA-00045382-002

27/07/2021

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-00045382-003

27/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00045382-005

27/07/2021

The respondent is a small haulage company and, until the start of the Covid-19 pandemic, he employed two drivers.  The complainant said that he started working for the company in May 2007.  He generally worked around 40 hours a week.  He was laid off at the start of the Covid-19 pandemic, but he returned to work in June 2020.  He said that, from June onwards, he was only required to work 20 hours a week.  This continued until July 2021, when he submitted this complaint to the WRC.  In November 2021, the complainant said that he left his job with the respondent because he needed more hours and he is now working full-time with another company.

These complaints are about the failure of the respondent to issue the complainant with a contract of employment, the failure to formally notify him in June 2020 of the change to his hours of work, the irregularity in the provision of payslips and the lack of information regarding changes to the name of the company.

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

The complainant said that he never received a statement of his terms and conditions of employment.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

At the hearing, the complainant said that this complaint is about the fact that his hours were reduced in June 2020 and, although his employer told him that it would be for two or three months, the reduced hours situation continued until he left in November 2021.  The complainant said that he needed to work full-time, but that the respondent was driving the truck himself, leaving him with a part-time job.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

On the e-complaint form he submitted his complaint about irregular payslips, the complainant ticked the box to select Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities).  In the narrative underneath the box, he clearly set out the nature of his complaint stating,

“I am not issued with a weekly payslip, and whenever I request for payslips it take a while to receive them.  He uses the excuse of his accountant as the delaying factor.”

The complainant was not represented, and he said that he got no advice before he completed the complaint form.  I am satisfied from the details he included on the form that it was apparent to his employer that this complaint is about payslips.  I am satisfied therefore, that no unfairness arises for the respondent from my decision to consider this complaint under section 6 of the Payment of Wages Act 1991.

The complainant said that when he asked for payslips, it took a while for his employer to provide them. 

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The complainant said that he started out working for Philip Johnson Transport and then the company changed its name to Plumage Transport.  The complainant said that he used to get paid by cheque, and it was only when he noticed the change of the name of his employer on this pay cheque, that he realised that the name had changed.  By the time he finished up working for the respondent, he was employed by Culmore Logistics.  He said that he only found this out when he logged on to his Revenue account online. 

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

At the hearing, the respondent said that when the complainant started with him in 2007, he gave him a piece of paper indicating that his job was as a truck driver.  He said that he didn’t issue a contract of employment.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

Regarding the complainant’s reduced hours of work, the respondent said that his company is not trading at present and that he is insolvent.  He said that he had to go back to driving himself.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

The respondent said that there were issues with payslips at times, but that he always got them when the complainant asked for them.  He agreed that the “issues with payslips were not perfect.”

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

In response to the complainant’s claims about the name of the company changing, the respondent said that he is entitled to change the name of the company.  He said that when the complainant started working for him, he had a different name, and he changed his name to his current name.

The respondent is a sole trader, running a sub-contracting trucking business, who, until recently, employed two drivers.  He said that his company is no longer trading and that he is insolvent.  The complainant is a foreign national, he was not represented at the hearing, and he said that he didn’t seek legal advice about his complaints.  Apart from the complainant’s e-complaint form, no other documents were provided to me at the hearing.  Both men were honest and helpful regarding the way they answered my questions at the hearing.  Having heard the evidence of both sides, my role is to consider if, by error or omission, the respondent has acted in contravention of various employment law statutes and the circumstances of the parties will not compromise that task.

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.  In the case of this complainant, he commenced work with the respondent in 2007.  Therefore, the un-amended provisions of section 3 of the Act apply and he was entitled to a written statement of his terms and conditions within two months of his start date.  Generally written up in the form of a contract, these statements are to include the following:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, despite asking for one. 

At the hearing, the respondent said that he gave the complainant “a basic piece of paper” when he started in the job.  I’m sure he didn’t keep a copy of this document, and, in any event, I’m certain that the piece of paper was not an attempt to constitute a statement of the complainant’s terms and conditions of employment.  I accept that this not an organised workplace, however, the effect of not providing a proper statement to an employee about their terms and conditions means that the employment relationship is tarnished with uncertainty, and this uncertainty seems to have been a feature of the complainant’s employment, particularly in the past two years.

I note from the respondent’s evidence that he used an accountancy service, and it is my view that, if he had requested support, it would have been available from this source. 

I refer to recent Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare[1],where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on that case, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

This is a complaint about the fact that the complainant’s hours of work were reduced when he returned to work in June 2020, after the first lock-down of the pandemic.  This complaint is not properly for adjudication under the Terms of Employment (Information) Act and should be considered under the Payment of Wages Act or the Industrial Relations Act.  If I was to permit the complainant to have his complaint considered under either of those statutes, it is my view that no contravention of the law could be said to have occurred.  The complainant was paid for the hours that he worked and, on this basis, there was no deduction by his employer of wages that were “properly payable.”

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

Section 4(1) and (2) of the Payment of Wages Act 1991 provides the legal basis for the issuing of payslips:

(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. 

(2) A statement under this section shall be given to the employee concerned—  

(a) if the relevant payment is made by a mode specified in section 2 (1) (f), as soon as may be thereafter,   

(b) if the payment is made by a mode of payment specified in regulations under section 2 (1) (h), at such time as may be specified in the regulations,  

(c) if the payment is made by any other mode of payment, at the time of the payment.  

The “mode” of the payment of wages here refers to whether employees are paid by cheque, credit transfer or cash and the Act provides that the “statement in writing,” or the payslip, should be provided “at the time of the payment.”

It is unusual these days for an employee not to be provided with a payslip with their wages.  The facility to provide online payslips is easy and inexpensive, and, for an employer using the services of an accountant, there can be no excuse for not issuing a payslip on the day that wages ae paid.  Like the failure to provide a statement of terms and conditions of employment, the failure to provide a payslip at the time that wages are paid causes unnecessary uncertainty and is illegal.

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

There was no disagreement at the hearing that, since the complainant commenced employment with the respondent in 2007, the name of the company was changed twice.  It is apparent that there was no transfer of the business from one undertaking to another, no other entity took over the business and Mr Johnson remained the beneficial owner of the three companies.  While there was certainly a lack of communication with the complainant about the change in the name of the business, as no transfer of an undertaking took place, it follows that there has been no breach of the 2003 Regulations.

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

The complaint under the Terms of Employment (Information) Act 1994 is well-founded and I decide that the respondent is to pay the complainant compensation of €1,190, equivalent to four weeks’ pay.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint is not well-founded.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

I decide that this complaint under the Payment of Wages Act 1991 is well-founded and I direct the respondent to pay the complainant compensation of €1,190, equivalent to four week’s pay.  As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

I decide that this complaint is not well-founded.

Summary of Redress Awarded

The total amount of redress awarded as compensation for breaches of the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991 is €2,380, equivalent to eight weeks’ gross pay.

Failure to issue a statement of terms and conditions of employment, failure to issues payslips at the time of the payment of wages

Complainant

Respondent

Parties

Frederiq Onyang'o

Culmore Logistics Limited

Representatives

  Not represented

Not represented

Act

Complaint 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-00045382-001

27/07/2021

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

CA-00045382-002

27/07/2021

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-00045382-003

27/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00045382-005

27/07/2021

The respondent is a small haulage company and, until the start of the Covid-19 pandemic, he employed two drivers.  The complainant said that he started working for the company in May 2007.  He generally worked around 40 hours a week.  He was laid off at the start of the Covid-19 pandemic, but he returned to work in June 2020.  He said that, from June onwards, he was only required to work 20 hours a week.  This continued until July 2021, when he submitted this complaint to the WRC.  In November 2021, the complainant said that he left his job with the respondent because he needed more hours and he is now working full-time with another company.

These complaints are about the failure of the respondent to issue the complainant with a contract of employment, the failure to formally notify him in June 2020 of the change to his hours of work, the irregularity in the provision of payslips and the lack of information regarding changes to the name of the company.

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

The complainant said that he never received a statement of his terms and conditions of employment.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

At the hearing, the complainant said that this complaint is about the fact that his hours were reduced in June 2020 and, although his employer told him that it would be for two or three months, the reduced hours situation continued until he left in November 2021.  The complainant said that he needed to work full-time, but that the respondent was driving the truck himself, leaving him with a part-time job.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

On the e-complaint form he submitted his complaint about irregular payslips, the complainant ticked the box to select Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities).  In the narrative underneath the box, he clearly set out the nature of his complaint stating,

“I am not issued with a weekly payslip, and whenever I request for payslips it take a while to receive them.  He uses the excuse of his accountant as the delaying factor.”

The complainant was not represented, and he said that he got no advice before he completed the complaint form.  I am satisfied from the details he included on the form that it was apparent to his employer that this complaint is about payslips.  I am satisfied therefore, that no unfairness arises for the respondent from my decision to consider this complaint under section 6 of the Payment of Wages Act 1991.

The complainant said that when he asked for payslips, it took a while for his employer to provide them. 

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

The complainant said that he started out working for Philip Johnson Transport and then the company changed its name to Plumage Transport.  The complainant said that he used to get paid by cheque, and it was only when he noticed the change of the name of his employer on this pay cheque, that he realised that the name had changed.  By the time he finished up working for the respondent, he was employed by Culmore Logistics.  He said that he only found this out when he logged on to his Revenue account online. 

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

At the hearing, the respondent said that when the complainant started with him in 2007, he gave him a piece of paper indicating that his job was as a truck driver.  He said that he didn’t issue a contract of employment.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

Regarding the complainant’s reduced hours of work, the respondent said that his company is not trading at present and that he is insolvent.  He said that he had to go back to driving himself.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

The respondent said that there were issues with payslips at times, but that he always got them when the complainant asked for them.  He agreed that the “issues with payslips were not perfect.”

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

In response to the complainant’s claims about the name of the company changing, the respondent said that he is entitled to change the name of the company.  He said that when the complainant started working for him, he had a different name, and he changed his name to his current name.

The respondent is a sole trader, running a sub-contracting trucking business, who, until recently, employed two drivers.  He said that his company is no longer trading and that he is insolvent.  The complainant is a foreign national, he was not represented at the hearing, and he said that he didn’t seek legal advice about his complaints.  Apart from the complainant’s e-complaint form, no other documents were provided to me at the hearing.  Both men were honest and helpful regarding the way they answered my questions at the hearing.  Having heard the evidence of both sides, my role is to consider if, by error or omission, the respondent has acted in contravention of various employment law statutes and the circumstances of the parties will not compromise that task.

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.  In the case of this complainant, he commenced work with the respondent in 2007.  Therefore, the un-amended provisions of section 3 of the Act apply and he was entitled to a written statement of his terms and conditions within two months of his start date.  Generally written up in the form of a contract, these statements are to include the following:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, despite asking for one. 

At the hearing, the respondent said that he gave the complainant “a basic piece of paper” when he started in the job.  I’m sure he didn’t keep a copy of this document, and, in any event, I’m certain that the piece of paper was not an attempt to constitute a statement of the complainant’s terms and conditions of employment.  I accept that this not an organised workplace, however, the effect of not providing a proper statement to an employee about their terms and conditions means that the employment relationship is tarnished with uncertainty, and this uncertainty seems to have been a feature of the complainant’s employment, particularly in the past two years.

I note from the respondent’s evidence that he used an accountancy service, and it is my view that, if he had requested support, it would have been available from this source. 

I refer to recent Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare[1],where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on that case, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

This is a complaint about the fact that the complainant’s hours of work were reduced when he returned to work in June 2020, after the first lock-down of the pandemic.  This complaint is not properly for adjudication under the Terms of Employment (Information) Act and should be considered under the Payment of Wages Act or the Industrial Relations Act.  If I was to permit the complainant to have his complaint considered under either of those statutes, it is my view that no contravention of the law could be said to have occurred.  The complainant was paid for the hours that he worked and, on this basis, there was no deduction by his employer of wages that were “properly payable.”

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

Section 4(1) and (2) of the Payment of Wages Act 1991 provides the legal basis for the issuing of payslips:

(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. 

(2) A statement under this section shall be given to the employee concerned—  

(a) if the relevant payment is made by a mode specified in section 2 (1) (f), as soon as may be thereafter,  

(b) if the payment is made by a mode of payment specified in regulations under section 2 (1) (h), at such time as may be specified in the regulations,  

(c) if the payment is made by any other mode of payment, at the time of the payment.  

The “mode” of the payment of wages here refers to whether employees are paid by cheque, credit transfer or cash and the Act provides that the “statement in writing,” or the payslip, should be provided “at the time of the payment.”

It is unusual these days for an employee not to be provided with a payslip with their wages.  The facility to provide online payslips is easy and inexpensive, and, for an employer using the services of an accountant, there can be no excuse for not issuing a payslip on the day that wages ae paid.  Like the failure to provide a statement of terms and conditions of employment, the failure to provide a payslip at the time that wages are paid causes unnecessary uncertainty and is illegal.

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

There was no disagreement at the hearing that, since the complainant commenced employment with the respondent in 2007, the name of the company was changed twice.  It is apparent that there was no transfer of the business from one undertaking to another, no other entity took over the business and Mr Johnson remained the beneficial ownerin charge of theall three companies..  While there was certainly a lack of communication with the complainant about the change in the name of the business, as no transfer of an undertaking took place, it follows that there has been no breach of the 2003 Regulations.[CBE1] 

CA-00045382-001:  Complaint under the Terms of Employment (Information) Act 1994

The complaint under the Terms of Employment (Information) Act 1994 is well-founded and I decide that the respondent is to pay the complainant compensation of €1,190, equivalent to four weeks’ pay.  This award is made by way of compensation for a breach of a statutory entitlement and is non-taxable.

CA-00045382-002:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint is not well-founded.

CA-00045382-003:  Complaint under the Payment of Wages Act 1991

I decide that this complaint under the Payment of Wages Act 1991 is well-founded and I direct the respondent to pay the complainant compensation of €1,190, equivalent to four week’s pay.  As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.

I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €1,190, equivalent to three week’s pay.  As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.

CA-00045382-005:  Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003

I decide that this complaint is not well-founded.

Summary of Redress Awarded

The total amount of redress awarded asa compensation for breaches of the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991 is €2,380, equivalent to eight weeks’ gross pay.

Failure to issue a statement of terms and conditions of employment, failure to issues payslips at the time of the payment of wages

Statement of terms and conditions of employment, payslips