Complainant

Respondent

Parties

Paul  Nolan

Sean Leydon

Representatives

Mr. Edmund Shanahan BL, instructed by Berwick Solicitors

Mr. Diorai Ford, John M. Ford & Son Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00039362-001

25/08/2020

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

CA-00039362-002

25/08/2020

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-00039362-003

25/08/2020

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

CA-00039362-004

25/08/2020

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

CA-00039362-005

25/08/2020

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

CA-00039362-006

25/08/2020

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

CA-00039362-007

25/08/2020

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

CA-00039362-010

25/08/2020

The Complainant commenced employment with the Respondent on 19th January 2020. On 11th May 2020, the Complainant alleges that the Respondent dismissed him on foot his seeking to enforce his statutory entitlements.

On 25th August 2020, the Complainant referred this complaint, and numerous other associated complaints, to the Commission. A hearing in relation to this matter was convened on, and finalised for, 16th May 2022. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

This hearing was heard alongside a second set of complaints involving the same parties, and this decision should be read in conjunction with that bearing reference ADJ-00028770. This decision considered the preliminary argument, advanced by the Respondent, that the Complainant was not in fact his employee. Having considered the position of both parties, it was determined that the Complainant was the employee of the Respondent for the cognisant period of the complaint. It was further determined that the Complainant was engaged by the Respondent for 14 hours per week throughout this period.

Various issues as to jurisdiction were raised in respect of the present complaints, these will be considered individually hereafter.

The Complainant stated that throughout his employment with the Respondent he did not receive the national minimum wage or any other statutory entitlements. He stated that he sought to engage with the Respondent in respect of the same in May 2020. Approximately three days thereafter, the Respondent informed him that they “should part ways” and that the employment was at an end.

Under cross examination, the Complainant stated that this was the first time that he sought to raise the issue with his employer. He accepted that it would be unusual for an employee to complete almost four months of employment prior to raising this issue, however he stated that he wished to give the Respondent every chance to comply with the relevant legislation. In answer to a further question, the Complainant accepted that he had no documentary evidence making such a request. In answer to a question posed by the Adjudicator, the Complainant was unable to state with certainty the manner by which he made the request regarding his statutory entitlements. When pressed further, the Complainant stated that the request was likely made by way of phone call as this was the normal manner of communication between the parties.  

While the Respondent was present at the hearing, he declined to give sworn evidence in defence of the complaints. The Respondent confirmed that he was not medically unable to do so and he did not seek an adjournment of the hearing.

In light of the foregoing, the matter proceed on foot of the Complainant’s evidence only.

Section 2(1) of the Unfair Dismissals Acts provides that,

“This Act shall not apply in relation to any of the following persons…(a)an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”

Section 36(1) of the National Minimum Wages Act provides that,

“An employer shall not cause or suffer any action prejudicial to an employee for the employee having…(a) exercised or having proposed to exercise a right under this Act.”

Section 36(2) goes on to provides that,

“Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977), except that it is not necessary for the employee to have at least one year’s continuous service with the employer…”

In the present case, the Complainant’s evidence was that he made an enquiry to the Respondent regarding his outstanding wages in May 2020. The Complainant stated that following the same, the Respondent effectively ended the employment relationship. No evidence was provided of any other rationale for the Complainant’s dismissal. Having regard to the same, and the minimal evidence presented in relation to the matter, I find that the Complainant’s employment was terminated on foot of his seeking to exercise his rights under the National Minimum Wage Act. As a consequence of the same, I find that he was unfairly dismissed within the meaning of the Act.

CA-00039362-001 Complaint under the Unfair Dismissals Acts

Having regard to the totality of the evidence presented, I find that the Complainant was unfair dismissed within the meaning of the Act, and consequently his application succeeds.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In this regard, I note that he Complainant did not provide any documentary evidence of his efforts to secur alternative following his dismissal. Whilst the Complainant’s evidence was that he secured alternative employment some time after his dismissal, he was unable to identity the date on which this employment commenced or the weekly rate of pay in respect of the same. Having regard to the foregoing, I find that the Complainant has not provided sufficient evidence of his efforts to mitigate his losses. Notwithstanding the same, the Complainant’s employment was terminated during the height of the Covid-19 restrictions, which inevitably resulted in a period of unemployment for the Complainant Having regard to the same, I award the Complainant the sum of €1,414.00, or the equivalent of ten weeks’ remuneration, in compensation.

CA-00039362-002 Complaint under the Terms of Employment (Information) Act

This complaint is a duplicate of complaint reference CA-00038473 under the file reference ADJ-00028770. As a consequence of the same, I find that this particular complaint is not well-founded.

CA-00039362-003 Complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations

This complaint was not pursued at the hearing. As a consequence of the same, I find that the complaint is not well-founded.

CA-00039362-004 Complaint under the Terms of Employment (Information) Act

This complaint is a duplicate of complaint reference CA-00038473-001, contained within file reference ADJ-00028770. As a consequence of the same, I find that this particular complaint is not well-founded.

CA-00039362-005 Complaint under the Organisation of Working Time Act

This complaint is a duplicate of complaint reference CA-00038473-008, contained within file reference ADJ-00028770. As a consequence of the same, I find that this particular complaint is not well-founded.

CA-00039362-006 Complaint under the National Minimum Wage Act

Having regard to the evidence tendered, it is apparent that the Complainant did not comply with the requirements of the Act as set out in Section 24. As I consequence of the same, I find that I do not have jurisdiction to hear this complaint and consequently the same is not well-founded.

Notwithstanding the foregoing, I note that he Complainant recovered his minimum wage by virtue of complaint reference CA-00038473-009, contained within file reference ADJ-00028770.

CA-00039362-007 Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not receive appropriate, or any, compensation for working in Sundays. Having regard to findings set out in ADJ-00028770, that the Complainant worked for two hours per day and did not receive any compensation in respect of the same, I find that this particular complaint is well-founded.

Having regard to the totality of the evidence presented in this matter, I award the Complainant the sum in €500.00 in compensation for this breach of the Act.

CA-00039362-010 Complaint under the Payment of Wage Act

This complaint is a duplicate of complaint reference CA-00038473-008, contained within file reference ADJ-00028770. As a consequence of the same, I find that this particular complaint is not well-founded.

National Minimum Wage, Unfair Dismissal