ADJ-00027778

Complainant

Respondent

Parties

John  Mckinley

Slevin Brothers Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035599-004

07/04/2020

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

CA-00035599-005

07/04/2020

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

CA-00035599-007

07/04/2020

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

CA-00035599-008

07/04/2020

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

CA-00035599-009

07/04/2020

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

CA-00035599-010

07/04/2020

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-00035599-011

07/04/2020

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

CA-00035599-012

07/04/2020

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

CA-00035599-013

07/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00035599-014

07/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00035599-015

07/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00035599-016

07/04/2020

The Complainant commenced employment as a Telehandler on 1 July 2017 and was paid a weekly salary of €480. He stated that he was constructively dismissed by the Respondent in April 2020. The Respondent disputed this. The Complainant also stated that he was owed outstanding holiday pay and alleged that he did not receive a written statement of his terms and conditions of employment.

The Complainant stated that the last day he worked with the Respondent was on 19th February 2020. He stated that he was off sick on 20th as well as 21st February and alleged that the Respondent failed to call him back to work on 9th March 2020 although there was work available for him tying steel, having been off for two weeks prior to that because of inclement weather. He stated that this work should have been given to him for the period until 27th March 2020 when construction work was halted as a result of the Covid lockdown. He also said that following the lockdown, he sought a letter from the Respondent for social welfare purposes and was informed that he could collect it from a colleague. Despite having called out to the colleague on three separate occasions, he did not have the letter for him and the Complainant did not contact the Respondent again because he was the “type of man who only asked for something once”. The Complainant stated that because of the Respondent’s failure both to give him the letter he had been promised and to call him back to work on 9th March 2020, he considered himself to be dismissed.

The Complainant also stated that he had not been issued with a contract of employment. In relation to holiday pay, he stated that he had received all of his holidays up and until the Christmas/New Year 2019/2020 period but was not paid for any holidays, either public holidays or annual leave, after this.

The Respondent stated that the Complainant was not called back to work between 9th and 27th March 2020 because there was no work available for him. Specifically, he stated that the Complainant was employed as the forklift driver for the bricklayers and as these were not on site at the time, there was no work available for him. The Respondent denied having been asked for a letter by the Complainant following the Covid lockdown and also stated that he was not asked for a letter by the colleague who the Complainant was meant to pick up the letter from. He stated that the Complainant was on temporary lay off, that he intended to call him back to work when he had suitable work available, which he did in May 2020, and denied that he was dismissed.

The Respondent confirmed that the Complainant had not been issued with a contract of employment. In relation to holiday pay, he stated that the Complainant had been paid all of his holiday entitlements up and until the Christmas/New Year 2019/2020 period but was not paid for any holidays, either public holidays or annual leave, after this.

CA-00035599-004: 

Section 21 of the Organisation of Working Time Act 1997 outlines an employee’s entitlement in respect of public holidays.

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d)   An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(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.

 8) 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.

I note that there were five public holiday in the cognisable period, namely 31st October, 25th  and 26th December 2019 as well as 1st January and 17th March 2020 and that it was accepted by both parties the Complainant was paid for four of these days with the exception of 17th March 2020. 

Accordingly, I find that this complaint is well founded. 

CA-00035599-005:

As I have found that the Complainant was not dismissed, as set out at CA-00035599-013 below, he is not entitled to receive a notice payment and I therefore find that this complaint is not well founded.

CA-00035599-007:

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

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

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

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

It was agreed by both parties that the Complainant received his full annual leave entitlement in respect of the 2019 calendar year at Christmas time that year. Accordingly, the only annual leave outstanding was that which the Complainant accrued between his return to work on 2nd January 2020 and the last day he worked with the Respondent, namely 19th February 2020 and which the Respondent agreed was not paid to him. 

I therefore find that this complaint is well founded.

CA-00035599-008:

This is a duplicate complaint and is identical to CA-00035599-004 above

CA-00035599-009

THE LAW

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the 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, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

It is the Complainant’s position that he did not receive any written statement of his terms and conditions of employment as required by the Terms of Employment (Information) Act 1994 outlined above. At the hearing, the Respondent agreed that this was the case when questioned by me and I therefore find that this complaint is well founded.

CA-00035599-010:

As no evidence was presented in relation to this complaint either on the complaint form or at the hearing, I find that it is not well founded.

CA-00035599-011:

As no evidence was presented in relation to this complaint either on the complaint form or at the hearing, I find that it is not well founded.

CA-00035599-012:

This is a further complaint pursuant to the Terms of Employment (Information) Act, 1994.   The complainant submits that he did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(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, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

While it is clear from the evidence provided that there was a breach of section 3(1A) above, and that it is therefore well founded, I note the decision of the Labour Courtin Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied. I therefore find that I cannot make any further award in respect of this breach given that I have already made an award in respect of a breach of the Act at CA-00035599-009 above.

 CA-00035599-013:

The Law

The Act at Section 1(b) defines constructive dismissal in the following manner

• “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 the 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,”

Discussion and Conclusions 

Dismissal as a fact is in dispute and consequently it is for the Complainant to establish that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act and the case law since its enactment has established two circumstances where an employee is entitled, or it would be reasonable for him or her to terminate the employment.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed. 

Reasonableness Test 

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment. This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant could not fairly be expected to put up with it any longer.

In this context, the Complainant must establish that he conducted himself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of his employment.

In Beatty v Bayside Supermarkets UD 142/1987, the Employment Appeals Tribunal, in referring to the need to utilise grievance procedures, held as follows:-

• “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In normal circumstances, a Complainant must act reasonably by providing the employer with an opportunity to address whatever grievance he or she may have. As set out by the Employment Appeals Tribunal in Conway v Ulster Bank Limited UDA474/1981, a Complainant must demonstrate that he or she has pursued the grievance through the procedures laid down in the employment before taking the step to resign.

In the instant case, the Complainant alleged that he considered himself to be dismissed in the first instance when the Respondent failed to call him back to work on 9th March 2020, having been off for two weeks prior to that because of inclement weather, although there was work available for him tying steel. He stated that this work, which was given to other employees instead of him, was available until 27th March 2020 when construction work was halted as a result of the Covid lockdown. He said that following the lockdown, he sought a letter from the Respondent for social welfare purposes and was informed that he could collect it from a colleague. Despite having called out to the colleague on three separate occasions, he did not have the letter for him and the Complainant did not contact the Respondent again because he was the “type of man who only asked for something once”. The Complainant stated that because of the Respondent’s failure both to call him back to work on 9th March and give him the letter he needed for social welfare when the Covid lockdown started that he considered himself to be dismissed.

The Respondent stated that the Complainant was on lay off and that he was not called back to work between 9th and 27th March 2020 because there was no suitable work available. Specifically, he stated that the Complainant was employed as the forklift driver for the bricklayers and as these were not on site at the time, there was no work available for him. The Respondent denied having been asked for a letter by the Complainant following the Covid lockdown and also stated that he was not asked for a letter by the colleague who the Complainant had sought the letter from.

I noted that the Complainant did not have a contract of employment and that there was no grievance procedure made available to him. In addition, I noted that the Complainant considered himself to be dismissed when the Respondent did not call him back to work on 9th March and allegedly failed to give him a letter outlining that he was on temporary lay off following the covid lockdown.  I also noted that following the one alleged communication he had with the Respondent seeking the letter for social welfare, the Complainant did not make any further contact after this. I find, even I accept that the Respondent promised to provide the Complainant with a letter for social welfare and failed to provide this, it was unreasonable for the Complainant to consider himself to be dismissed because of this. Specifically, I believe that he should have made more efforts to engage with the Respondent and should have contacted him in writing asking for clarity on the position in light of the failure to bring him back to work on 9th March and the refusal to provide him with a letter for the social welfare.  Given his failure to do so however, I find that the Complainant did not meet the reasonableness test set out above. I also find that the Respondent did not breach the contract test in both not bringing the Complainant back to work on 9th March because the bricklayers were not in attendance and not giving him the letter for social welfare, even if I accept that this was asked for.

Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00035599-014:

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.

CA-00035599-015:

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.

CA-00035599-016:  

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.

CA-00035599-004:

I find that the complaint is well founded for the reasons set out above and award the Complainant €96 in respect of this complaint.

CA-00035599-005:

I find that this complaint is not well founded for the reasons set out above.

CA-00035599-007:

As outlined above, I note that the Complainant was not paid his annual leave which accrued between 2nd January 2020 and 19th February 2020, a period of 7 weeks and find that this complaint is well founded. I therefore award the Complainant €292.17 in respect of this complaint.

CA-00035599-008:

I find that this complaint is not well founded for the reasons set out above.

CA-00035599-009:

I find that this complaint is well founded for the reasons set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant 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 the case, the Chairman of the Court, 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 within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks remuneration, namely €1,920.

CA-00035599-010:

As no evidence was presented in relation to this complaint either on the complaint form or at the hearing, I find that it is not well founded.

CA-00035599-011:

As no evidence was presented in relation to this complaint either on the complaint form or at the hearing, I find that it is not well founded.

CA-00035599-012:

Although this complaint is well founded, I do not make any award for the reasons set out above.

CA-00035599-013:

I find that the Complainant was not unfairly dismissed for the reasons set out above

CA-00035599-014:

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.

CA-00035599-015:

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.

CA-00035599-016:  

As I have found that the Complainant was not dismissed, I find that this complaint is not well founded.