ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031675
Parties:
| Complainant | Respondent |
Parties | Noel Paget | Naomh Fionnbarra GAA Club |
Representatives | Gavan Mackay Mackay Solicitors | Ryan McManus BL |
Complaints:
Act | Complaint/Dispute 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-00042001-002 | 15/01/2021 |
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-00042001-004 | 15/01/2021 |
Date of Adjudication Hearing: 20/08/2021, 08/10/2021 and 23/11/2021
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Hearings took place on 20/08/2021, 08/10/2021 and 23/11/2021.
I explained to the parties the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24 and gave them the opportunity to consider the changes. The complainant and the respondent indicated they understood the procedural changes and wished to proceed with the hearing. Evidence was taken on oath/affirmation.
Background:
The complainant submitted two complaints to the Workplace Relations Commission on 15 January 2021. On the complaint form he stated he was employed in a Bar/Driver/General role. No details were provided on the complaint form about the dates of employment, the hours of work or the rate of pay. The complainant’s first complainant is that he did not receive a statement in writing of his terms of employment. The second complainant is that he was not notified by the respondent of the working hours regulations applying to the road transport sector. The respondent made a preliminary objection that the complaints were submitted outside the time limit provided under section 41(6) and (8) of the Workplace Relations Act, 2015. The respondent asserted that the complainant had been employed as a Kitchen Manager/Barman from 12 February 2010 to 08 June 2019. Further, the complainant had signed an employment contract on 05 June 2018 in which it was stated that he was employed as Kitchen Manager/Barman. As the complainant’s role was described as Kitchen Manager/Barman he was not working in the transport sector. |
Summary of Complainant’s Case:
The complainant has been associated with the respondent club for approximately fifty years. He served as Chairman of the club between 2006 and 2018. He was employed by the club between 2009 and 2019. The complainant claimed that he did not receive a statement in writing of his terms of employment. His initial employment was as Kitchen Manager/Barman. The complainant stated he was asked by the club committee to take on driving duties in 2016. These duties arose from the club entering into an arrangement with a company engaged in film productions. The club agreed to provide mini buses to transport crew, cast and extras from Dublin to various locations. The complainant acknowledges he did receive a contract of employment in 2018 but that contract made no reference to his driving duties. The complainant also claims that while he carried out driving duties for the respondent club from 2016 to 2018 he was not notified of the working hours regulations that applied to the road transport sector. He stated he often started driving duty at 05.00 and did not finish until 20.00. When working on driving duties he was often required to work 70 hours per week. The complainant’s solicitor wrote to the respondent on 27 July 2020 and again on 20 October 2020 requesting a copy of the complainant’s contract of employment, copies of payslips and staff rosters and notes pertaining to the work undertaken by the complainant on behalf of the club. The complainant states no response was received until 01 June 2021 and then only following a complaint to the office of the Data Protection Commissioner. It is the complainant’s position that his contract of employment should have included or been amended to include the driving duties he carried out on behalf of the club. Further, he should have been informed of the working hours regulations applicable to the road transport sector. |
Summary of Respondent’s Case:
The club was founded in 1945. It is run by an Executive Committee headed by three officers, the Chairman, the Secretary and the Treasurer. The Executive Committee and the Officer Board is elected each year at the Annual General Meeting. The complainant held the position of Chairman from 2006 to November 2018. The office of Chairman has the overall responsibility for the running of the club and ensuring good governance and compliance with regulations. During the complainant’s term as Chairman he commenced work as a paid employee of the club on 12 February 2010. The complainant was employed as Kitchen Manager/Barman. Following advice from the club’s external HR advisor all employee contracts were updated in 2018. The complainant signed his contract on 05 June 2018. The complainant handed in his notice on 25 May 2019 and his employment came to an end on 08 June 2019. The complainant lodged his complaints with the Workplace Relation Commission on 15 January 2021. The complaints were lodged eighteen months after the complainant had resigned from his employment. Section 41(6) of the Workplace Relations Act, 2015 states that an adjudication officer shall not entertain a complaint referred after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. These complaints were lodged out of time and the adjudication officer does not have jurisdiction to hear the complaints. In the interest of completeness, the respondent contends the complainant did receive a statement in writing of his terms of employment when he signed the contract on 05 June 2018. The respondent contends, in respect of the second complaint, that the complainant was not working in the transport sector. It is the respondent’s submission that even if the complainant’s complaints were not out of time, he has not identified any breaches of the Terms of Employment (Information) Act, 1994. The respondent requests the adjudication officer dismiss the complaints. |
Findings and Conclusions:
Evidence Complainant The complainant in his evidence described his long association of fifty years with the respondent club. He had dedicated much time to the club as a member, officer and Chairman from 2006 to 2018. He was employed as Kitchen Manager/Barman in 2009/2010. In that role he worked full-time managing the kitchen and doing bar work when required. In 2016, while the complainant was Chairman, an opportunity arose for the club to generate income by supplying their buses to a company engaged in film production. The club at that time was struggling. The complainant was asked by a committee to take on driving duties. He held the necessary driving licence at that time. The complainant agreed and stopped his bar work to take on the driving duties. He stated he often worked fifteen hours per day, four days per week. He continued to work in the kitchen on Sunday from 08.30 to 18.30. During Christmas and Easter periods there was no filming and he resumed his kitchen duties. In 2018 the employees were issued with written contracts. The complainant stated he did not check the contract at the time of signing. He subsequently discovered there was no reference in the contract to his driving duties. The driving duties ended in 2018. The complainant stated that he was never informed of the working hours regulations applying to the road transport sector. In cross examination the complainant confirmed he had attended a transport managers course. Former Treasurer The former Treasurer of the respondent club gave evidence. He described his duties and confirmed that he was aware that the complainant worked in the kitchen, bar and did driving duties for the club. He stated that in 2016/2017 the external HR advisor informed the respondent that employee contracts needed to be updated. He received the revised contracts and passed them to the club Secretary to give to employees and get them signed. The former Treasurer stated that the driving work for the film production company predated the updated contracts and in the complainant’s case the contract should have included the driving duties. He stated that the whole committee knew the complainant was doing driving duties in addition to work in the kitchen. It was work that was of value to the club. The former Treasurer stated that in his role he did not reconcile the complainant’s working hours as he kept records of dates and payments. The bar manager was the one to record hours. He stated that the respondent club had records of the work for the film production company, bank statements and calendars. He confirmed he had looked after the payroll and paid wages to staff by electronic funds transfer using E-pay. He received a list from the bar manager, but bus drivers were paid cash by the bar manager. He confirmed that when the complainant was not driving he worked in the bar and kitchen. Preliminary Issue The complainant submitted two complaints. The first under section 7 of the Terms of Employment (Information) Act, 1994. The second under the Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations S.I. 36/2012. The procedure for the presentation of complaints that an employer has contravened the 1994 Act or the 2012 Statutory Instrument is contained in section 41 of the Workplace Relations Act, 2015. Section 6 of the Act states: (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.
Section 8 states:
(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.
The legislation as set out above is clear. An adjudication officer shall not entertain a complaint referred to him or her if it has been presented after the expiration of 6 months beginning on the date of the contravention to which the complaint relates.
CA-00042001-002 Complaint submitted under the Terms of Employment (Information) Act, 1994
The complainant claimed he did not receive a statement in writing of his terms of employment. Such a contravention continues through the term of employment until a statement is provided by the employer. If no statement is provided during the employment a complaint may be presented within six months after the employment ends. The complainant resigned from his employment effective 08 June 2019. Therefore, a complaint should have been presented by 07 December 2019 or if there was reasonable cause for it not being presented within that period, at the latest by 07 June 2020.
Section 8 permits an extension of the time by a further six months where failure to present the complaint within the initial six months was due to reasonable cause. The Labour Court considered ‘reasonable cause’ in Cementation Skanska v A Worker DWT0425 and stated:
“It is the Courts 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 his or her 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.In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.”
I note that the complainant was the both an employee and Chairman of the respondent club up to November 2018 a period that includes the time the employee contracts were updated. This complaint was received by the Workplace Relations Commission on 15 January 2021.
An adjudication officer does not have jurisdiction to entertain a complaint presented after the expiration of a total of twelve months (where reasonable cause is shown for delay) from the date of the alleged contravention to which the complaint relates. The date this complaint was received by the Workplace Relations Commission was more than seven months after the latest possible date for the presentation of a complaint. I find I do not have jurisdiction to adjudicate on this complaint.
CA-00042001-004 Complaint submitted under Regulation 18 of S.I. 36/2012.
The complainant claimed he was not informed of the working hours regulations applying to the road transport sector when he was carrying out driving duties for the respondent. In his evidence the complainant indicated that the driving duties he carried out for the respondent club were between 2016 and 2018. I note also that the complainant acknowledged he attended a transport managers course during that time. This complaint was received by the Workplace Relations Commission on 15 January 2021. This complaint was received more than twelve months after the date of the alleged contravention of the regulations to which this complaint relates. An adjudication officer does not have jurisdiction to entertain a complaint presented after the expiration of a total of twelve months (where reasonable cause is shown for delay) from the date of the alleged contravention to which the complaint relates. I find I do not have jurisdiction to adjudicate on this complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00042001-002 Complaint submitted under the Terms of Employment (Information) Act, 1994
This complaint was received by the Workplace Relations Commission on 15 January 2021. The complainant resigned his employment effective 08 June 2019.
An adjudication officer does not have jurisdiction to entertain a complaint presented after the expiration of a total of twelve months (where reasonable cause is shown for delay) from the date of the alleged contravention to which the complaint relates. The date the complaint was received by the Workplace Relations Commission was more than seven months after the latest possible date for the presentation of a complaint. I find I do not have jurisdiction to adjudicate on this complaint.
CA-00042001-004 Complaint submitted under Regulation 18 of S.I. 36/2012.
This complaint was received by the Workplace Relations Commission on 15 January 2021. The complainant carried out driving duties between 2016 and 2018.
This complaint was received more than twelve months after the date of the alleged contravention of the regulations to which this complaint relates. An adjudication officer does not have jurisdiction to entertain a complaint presented after the expiration of a total of twelve months (where reasonable cause is shown for delay) from the date of the alleged contravention to which the complaint relates. I find I do not have jurisdiction to adjudicate on this complaint. |
Dated: 12th July 2022
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Time Limit Reasonable Cause Terms of Employment |