Complainant

Respondent

Parties

Brian  Buckley

Josephine Lawrence trading as  K And L Motors

Representatives

  Self – Represented

Self – Represented

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035275-001

16/03/2020

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

CA-00035275-004

16/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035275-005

16/03/2020

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

CA-00036200-001

17/05/2020

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

CA-00036200-003

17/05/2020

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

CA-00036200-004

17/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036200-005

17/05/2020

The hearing was conducted remotely hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The Complainant and his two witnesses together with the three witnesses on behalf of the Respondent swore an affirmation and gave evidence at the hearing.

The Complaint Form was opened, and the details of each claim were carefully addressed with the parties. The Complainant choose to withdraw the complaints made on the Complaint Form submitted on 17 May 2020 - CA-00036200-005, CA-00036200-004, CA-00036200-003, CA-00036200-001.

There was a dispute as to the name of the Respondent with Mr Ian Flynn, Solicitor for the witness Mr Pat Lawrence submitting that the matter was not properly before the Workplace Relations Commission as his client was an employee and not the employer. 

There was a dispute as to the hours of work and weekly wage.

The date on which the employment commenced was disputed but his last date of work was agreed as being 4 December 2019.

The Respondent disputed the dismissal and therefore, the burden of proof rests with the Complainant.

Correct Employer

The Complainant stated he worked for the Respondent since 1996 and always understood that Cahir 4  x 4 was his employer which traded as K & L Motors with Pat Lawrence as owner of the company. The Complainant produced an article from Argiland dated 31 December 2017 , which referred to Mr Pat Lawrence as the “owner of Cahir 4 x 4”.

It was noted that it was the Complainant’s evidence that he did not receive payslips, nor did he receive a contract of employment.

Payment

The Complainant gave evidence that he worked 60 hours a week and received €700 cash a week on a Monday from his employer. He was unaware of his gross pay as he only received €700 in this envelope. There was no payslip furnished to him.

His wife, Mrs Karina Buckley, gave evidence that her husband received €700 cash per week on a Monday, but it could be a day late. She stated she knew this because she received €350 to cover shopping and household expenses with the remaining €350 going towards the mortgage and other bills.

Commencement Date

The Complainant gave evidence that he commenced employment in 1996 and while he stated 01 January 1996 on his Complaint Form , he did not know the exact date but was sure it was 1996.

Mr Buckley gave evidence that her husband began working for the Respondent in 1996 as it was when her middle daughter was a baby who she stated was born in March 1996.

Hours of Work

The Complainant gave evidence that he would receive a phone call from Mr Pat Lawrence every morning to advise him of his start time which depended on what time Mr Lawrence opened the garage. He gave evidence and provided screen shots of phone calls from Mr Lawrence demonstrating that calls from May – August 2019 with calls regularly received between 5.44am - 6.40 am. Upon inquiry, the Complainant stated that he did not have a roster or set start time and Mr  Lawrence would call him every morning to advise him whether they would “go on the road” to fix tractors out of the county or go to the garage. He gave evidence that he worked 5.5 days a week from Monday – Saturday.

Mrs Buckley gave evidence of the phone ringing from 5.30am and it would sometimes wake the children.  Neither Mrs Lawrence or Mr Lawrence’s Solicitor chose to cross examine Mrs Buckley.

The Complainant’s brother , Mr Paul Buckley, also gave evidence that his brother worked 5.5 days a week from approximately 7am – 6pm Monday – Friday and 7am – 1pm on a Saturday and this pattern of work for many years. Neither Mrs Lawrence or Mr Lawrence’s Solicitor chose to cross examine Mrs Buckley.

Unfair Dismissal – CA-000355275-001

It was the Complainant’s evidence that he attended for work as usual on at 6.45am 4 December 2019 with Mr Pat Lawrence arriving at 9am. The Complainant gave evidence that Mr Lawrence was in bad form and started shouting at him about a tractor seat. The Complainant sought to clarify that it was the seat he was instructed to fit to the tractor, but Mr Lawrence continued to shout about his start time; “I rang you at 6 this morning because I had someone coming looking at that tractor and you don’t bother your fucking bollocks to come in until 7”. There was a heated disagreement as to which was the correct tractor seat between the parties to which the Complainant said; “who do you think you are talking to me like that” to which Mr Lawrence replied, “I don’t give a fuck. You fuck off out of here now.”. The Complainant stated that he tried to speak to Mr Lawrence but was shot down when he was told by Mr Lawrence that “I don’t give a fuck” and walked away to his office. It was the Complainant’s evidence that Mr Lawrence’s son, Thomas Lawrence, was present for the conversation but did not participate and followed his father out of the garage.

The Complainant gave evidence that he felt he had been dismissed at this point and left his place of work.

Mr Lawrence rang the Complainant the following day at 14.53 but before the Complainant could pull over his car and answer the call, it had stopped ringing as it only rang for two rings. The Complainant did not return his call. The second time Mr Lawrence made contact was on New Year’s Eve at 7pm to tell him that he wanted to pay him the money he owed and requested that the Complainant call to him after 12pm but the Complainant did reply.

Despite being invited to do so, the Respondent choose not to put any questions to the Complainant in cross examination.

Financial loss

The Complainant obtained alternative employment which commenced 18 May 2020 with a wage of €12 per hour working a 24-hour week. A contract of employment together with supporting payslips were provided by the Complainant.

Prior to securing this employment, the Complainant said he did obtain a job on a building site, but it fell through. In addition, he did seek employment with a number of local businesses.

Minimum Notice – CA-00035275-005

The Complainant gave evidence that he was terminated from his employment by the Respondent without receiving his statutory minimum period of notice upon termination of his employment.

Contract of Employment – CA-00035275-004

The Complainant gave evidence that he did not receive a contract of employment. He has no recollection of the contract produced by the Respondent at the hearing nor did he sign it.

Correct Employer

Mr Ian Flynn, Solicitor, acting for Mr Pat Lawrence submitted that he was not the employer but an employee of K & L Motors. Mrs Josephine Lawrence was the employer, a sole trader, who traded as K & L Motors and she was not a named party to the complaints. Mr Flynn confirmed he was acting solely on behalf of Mr Lawrence and not Mrs Lawrence . He was asked on two occasions if he wished to consult with his client to confirm him instructions and declined the offer of time to do so.

It was further submitted by Mr Flynn that he did not consent or agree to the substitution of Mrs Lawrence as the correct employer.

Payment

Mrs Lawrence gave evidence that the Complainant was paid €350.40 gross per week and €346 net per week.

Hours of Work

The Respondent gave evidence that the Complainant worked 24 hours per week. Upon cross examination she stated that the hours of the day, start and finished time , “varied” and the Complainant came in “to work when it was needed”. Upon inquiry, the Respondent said she could not say what 3 days the Complainant worked , it could have been “any day” and depended on “how busy “ they were. When asked if he worked additional hours when the business was busy she stated; “ not that I know of”. The Respondent was asked if she had a clock in system or had kept time sheets and she stated she did not. She stated she worked off “job sheets”.

Mr Thomas Lawrence, a former employee of Respondent but who had established his own business working from the same premises as the Respondent, gave evidence that the Complainant worked “varied” days, but it was always 3 days a week. His evidence was that he would have started at “7 amor 8am  and finish by 12 pm or 1pm”, he stated that he “sometimes could be there at 6pm” but would have started at 1pm.

Unfair Dismissal – CA-000355275-001

Mrs Josephine Lawrence gave evidence that she was not present on the premises when the argument between the Complainant and Mr Lawrence took place. She confirmed her husband did tell her about the incident but stated “it was not for me , if was for Pat” to deal with.

She gave evidence that the Complainant lives at the end of the street, but nothing has been spoken between the parties since 4 December 2019. She stated “we have been very good to him” in allowing him to take-off when his father was ill. Mrs Lawrence stated the Complainant did not return “our calls/WhatsApp”

Mr Pat Lawrence gave evidence that he did have words with the Complainant on 4 December 2019 about the tractor seat. He accepted he said; “ I don’t give a fuck if you go now” and “if he wants to leave he can leave” and walked out of the premises on that date. However, Mr Lawrence did not consider the Complainant to be dismissed on that date. 

Mr Thomas Lawrence under cross examination that his father’s last words to the Complainant were; “ leave if you want to.” He denied that his father’s last words were; “you fuck off out of here”. This evidence differs from that of Mr Lawrence and therefore, do not find it credible.

Minimum Notice – CA-00035275-005

It was the Respondent’s evidence that as the Complainant was not dismissed and therefore, not entitled to minimum notice.

Contract of Employment – CA-00035275-004

Mrs Lawrence gave evidence the Complainant was provided with a contract which was signed by her and dated 20 July 2001, a copy of which was produced. Upon inquiry the Respondent stated she handed him the contract herself but had no record of same.  

Upon inquiry, Mr Pat Lawrence gave evidence that he did not receive a contract of employment from the Respondent but stated he did not request one either. Mr Thomas Lawrence gave similar evidence and confirmed he did not seek a contract from his employer, the Respondent,  either.

Correct Employer

The Complainant is a lay litigant and identified the Respondent as Cahir 4 X 4 trading as K & L Motors in the Complaint Form.

The contract of employment upon which the Respondent gave evidence that was provided to the Complainant , dated 20 July 2001, states the employer to be Josephine Lawrence trading as K & L Motors, Clonmel Road, Cahir, Co Tipperary. 

The Respondent was notified and appeared before me at the hearing.  It is noted that she further confirmed at the outset of the hearing that she was a sole trader and she traded as K & L Motors.

In terms of my jurisdiction to amend the Complaint Form I take my lead from Hedigan J in Clare County Council v. Director of Equality Investigations & Ors., [2011] I.E.H.C. 303 held, evidently it would defeat the spirit of the legislation if ‘court formalities’ were required and the McKechnie J. sitting in the Supreme Court in County Louth Vocational Educational Committee v Equality Tribunal and Brannigan, [2016] IESC 40 wherein at para. 32, “one cannot expect lay persons to articulate complaints in the same way as professionally qualified advocates.”

 In summary, the Complaint Form is facilitative rather than mandatory and therefore, I am allowing the amendment of the Complaint Form to reflect the correct Respondent as confirmed by Ms Lawrence at outset of the hearing of the claims.

Payment  and Hours of Work

I am aware that there is no payment of wages or organisation of working time act claim before me however it is absolutely necessary to ascertain for the purposes of calculating redress, if any, under the various claims brought by the Complainant.

The Complainant gave evidence that he worked 5.5 days a week and received €700 net per week. He produced undisputed evidence of phone calls from Mr Lawrence with times ranging from 5.44am – 6.40am. The Complainant’s wife gave evidence of the phone ringing from 5.30am.  The Complainant’s brother also gave clear evidence of his brother’s working schedule.

The Respondent’s gave evidence that the Complainant worked 24 hours a week over 3 days and this did not change. He was paid €350 per week . The contract the Respondent seeks to rely on states his normal hours of work were 8am to 6pm.  

Mr Pat Lawrence’s evidence was that he would collect the Complainant at 7am to go “on the road” and would be back in the garage at 10am or 11am. At that point in the day , Mr Lawrence would normally “be away selling a tractor” so he did not know what time the Complainant finished.

The evidence of Mr Thomas Lawrence as regards hours of work simply does not add up. He clearly gave evidence that Complainant worked 3 days a week and would start at either 7 am or 8am finishing at 12pm or 1pm which amounted to 5 hours per day or alternatively if he started at 1pm he would finish at 6pm which also amounted to 5 hours per day, a total of 15 hours per week.

This evidence is at odds with the Respondent who was clear that the Complainant worked 24 hours per week over 3 days and the contract which she seeks to rely on.

It is further noted that the “job sheets” referred to by the Respondent were not presented to me for consideration despite a request to supply same for the period September – December 2019 together with records of payment for the same period.

I do not find evidence submitted on behalf of the Respondent credible and therefore, I prefer the evidence of the Complainant and his witnesses that he worked 5.5 days per week and earned €700 net per week with a gross weekly wage of €801.90 per week based on the contract of employment.

Unfair Dismissal – CA-000355275-001

Dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) 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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

This dismissal was disputed by the Respondent and therefore, the burden of proof rests with the Complainant to prove he was dismissed from this employment.

The first question to be answered is whether Mr Pat Lawrence held a management position within the business and thereby had the authority to terminate the employment of another. The altercation on 4 December 2019 was between the Complainant and Mr Pat Lawrence. The Respondent submitted at length that Mr. Lawrence was an employee and nothing more. Upon inquiry , the Respondent stated he did not hold a managerial position , he was just an employee. Mr Lawrence, a witness in this case, was unusually legal represented whereas the Respondent chose to represent herself. It was repeatedly submitted by Mr Lawrence’s solicitor that he was an employee and put to the Complainant in cross examination that Mr Lawrence “had no authority to dismiss you”.  It is noted that the submissions, filed on behalf of Mr Lawrence only,  make several representations on behalf of the “Respondent”  re the events of 4 December 2019, the contract of employment , monies owed and minimum notice. This is direct conflict with the assertion that Mr Lawrence was a mere employee of the Respondent.

The evidence of the Complainant was that he never thought of Mr Lawrence in any other capacity other than an owner/manager. Mr Lawrence did not deny in cross examination by the Complainant that he “knew everything that” went on in the garage.

Both Mr Lawrence and the Complainant agreed in their evidence that the Mr Lawrence would call the Complainant each morning, albeit the time differed between the parties, to instruct him as to the day’s work, to “go on the road” or to a garage. In the absence of a roster this arrangement can only be construed Mr Lawrence directed what work had to be completed by the Complainant and where. Furthermore, the subject of the argument on 4 December 2019 related to Mr Lawrence’s issue that the Complainant failed follow his instruction to fit the correct seat in the tractor.

It was Mr Lawrence, not Mrs Lawrence, who telephoned the Complainant on 5 December 2019 and text him on New Year’s Eve regarding the monies owed to him. When asked why, if only an employee, did he send the text on New Year’s Eve, Mr Lawrence replied; “the garage owed you money. I am married to Josephine.”

Upon inquiry when asked if he could be considered to be the Complainant’s manager, he replied; “yes , you could say that”.

Having carefully considered the evidence before me, I am satisfied that Mr Lawrence dealt with the Complainant as his manager and therefore, had therefore, to instruct the Complainant within the Respondent business.

Having been satisfied of the first question, the next question is whether Mr Lawrence’s together with the Respondent’s words and action and the Complainant’s own response amounts to a dismissal.

Under cross examination by the Complainant, Mr Lawrence stated his last words to the Complainant were “I don’t care if you go now”.

In her evidence , Mrs Lawrence confirmed that Mr Lawrence came to her office on 4 December 2019 and complained that he had an aggressive interaction with the Complainant. Furthermore, she accepted that she did not at any stage follow up with the Complainant either by telephone or in writing. The Respondent sought to rely on a telephone call from Mr Lawrence made to the Complainant on 5 December 2019.  

I find the words and actions of Mr Pat Lawrence on behalf of his employer amounted to termination of the Complainant’s employment. Furthermore, by her own admission, Mrs Lawrence she did not take any steps to follow up with the Complainant. A reasonable employer would be expected to follow up in writing as well as making every reasonable effort to investigate the incident between the parties. Instead the Respondent chose to ignore the Complainant and the fact he had been terminated from his employment.

Where an employee is found to have been dismissed from his employment there is an obligation on the employer to comply with the principles of natural justice to ensure that dismissal is procedurally fair and secondly that the reason for dismissal is fair as prescribed by Section 6 of the Unfair Dismissals Acts 1977- 2015: -

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

Noonan J. in Bank of Ireland –v- O’Reilly [2015] 26 E.L.R. 229 held: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

I find the Respondent’s actions are entirely void of fair procedures. In conclusion, I find that there is no reasonable or justifiable reason for dismissing the Complainant nor were any of the principles of natural justice followed. This is wholly unacceptable, and I find that complaint is well founded

Financial Loss

Financial loss is defined in s.7(3) of the Unfair Dismissals Act 1977 as:

“… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act 1967-1991 or in relation to superannuation.

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

While the Complainant was out of work for a period of approximately six months, the country was in lockdown due to the Covid19 pandemic which must be taken into consideration particularly when one job he applied and was successful in obtaining fell through together with the nature of his work.

Minimum Notice – CA-00035275-005

“4.—(1) An employer shall, 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, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks”

There was no dispute that the Complainant did not receive payment in lieu of notice.

In the circumstances where it has been found that the Complainant was dismissed from his employment he is entitled to 8 weeks’ notice based on his service of in excess of 15 years. 

Contract of Employment – CA-00035275-004

Section 3 (1) of the Terms of Employment (Information)Act 1994 requires:

“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”

I find the Complainant was provided with a contract of employment however, it was not provided to him within 2 months after the commencement of his employment in 1996 nor did it accurately reflect his continuous service from 1996. Consequently, I find the complaint is well founded.

Unfair Dismissal – CA-000355275-001

I find that the claim for unfair dismissal is well founded.

Financial loss

I find that the Complainant’s financial loss amounts to €20,849.40 for the period of 26 weeks he was out of work. This figure is based on a gross weekly wage of €801.90 per week.

Minimum Notice – CA-00035275-005

I find the complaint is well founded and based on the Complainant’s continuous service since 1996 he is entitled to 8 weeks wages of €801.90 per week in lieu of notice which equates to €6,415.20.

Contract of Employment – CA-00035275-004

In the circumstances where a contract was provided but it was neither accurate in terms of the Complainant’s continuous service since 1996 nor was it provided within the time period provide for in the Act, I award the Complainant €1,603.80 being two weeks wages in compensation for the breach of the 1994 Act.

Unfair Dismissal – Minimum Notice- Terms of Employment -Disputed Termination