ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028739

Parties:

	Complainant	Respondent
Parties	Martin Kinsella	DMG Transport

Representatives

J.J. Killian of Ignite Business Solutions

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038737-001	03/06/2020
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-00038737-002	03/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038737-003	03/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038737-004	03/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038737-005	03/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00038737-007	03/06/2020

Date of Adjudication Hearing: 11/05/2022

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

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. All evidence was given by affirmation.

Background:

A virtual hearing took place on 3 November 2020 but could not proceed for technical reasons. A face-to-face hearing took place on 11 May 2022.

The complainant says he was not issued with a contract of employment in writing, he worked an average of 50 hours per week and he did not receive the correct payment in lieu of notice.

Summary of Complainant’s Case:

CA-00038737-001: Payment of Wages – the complainant says he did not receive payment in lieu of notice on the termination of his employment.

CA-00038737-003, 004 and 005: Terms of Employment (Information) Act, 1994 – the complainant says he did not receive a statement in writing of his terms of employment, he was not notified in writing of changes to his terms of employment and he did not receive a statement of his core terms in writing.

CA-00038737-007: Minimum Notice & Terms of Employment Act, 1973 – the complainant says he did receive his statutory minimum period of notice on the termination of his employment or payment in lieu.

Summary of Respondent’s Case:

CA-00038737-001: Payment of Wages – the respondent says the complainant was dismissed on 2 March 2020. He worked out his notice and was paid until 6 March 2022

CA-00038737-002: 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 – the respondent says the complainant generally worked from 1am until he finished and on many occasions he worked 5 hours per day. His average working hours over his employment was less than 40 hours per week; as showed from the information gathered from the tacograph recordings.

CA-00038737-003, 004 and 005: Terms of Employment (Information) Act, 1994 – the respondent says the complainant was aware of his terms and conditions of employment, following an interview with the Director. This meant a contract was in place, albeit not a written contract. Furthermore, there were no changes to his terms and conditions of employment during the period of his employment.

CA-00038737-007: Minimum Notice & Terms of Employment Act, 1973 – the respondent submits the complainant worked for the period of his notice, was paid for this period and it therefore not entitled to any payment in lieu of notice.

Findings and Conclusions:

CA-00038737-001: Payment of Wages – I accept the evidence provided by both parties that the complainant worked out his notice and therefore has no entitlement for payment in lieu of notice.

CA-00038737-002: 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 – I accept the documentary evidence provided by the respondent which shows the complainant did not work hours in excess of the regulation.

CA-00038737-003, 004 and 005: Terms of Employment (Information) Act, 1994 - I conclude the complainant did not receive written terms of employment, as required by the legislation. This highlighted the lack of any written procedures. I understand this has subsequently been rectified. I find this complaint is well founded and award redress of four week’s pay, €2,400 net.

CA-00038737-007: Minimum Notice & Terms of Employment Act, 1973 - I accept the evidence provided by both parties that the complainant worked out his notice and therefore has no entitlement for payment in lieu of notice.

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-00038737-001: Payment of Wages – for the reasons given above I find this complaint is not well founded.

CA-00038737-003, 004 and 005: Terms of Employment (Information) Act, 1994 – for the reasons given above I find this complaint is well founded and award redress of four week’s pay, €2,400 net.

CA-00038737-007: Minimum Notice & Terms of Employment Act, 1973 – for the reasons given above I find the complaint is not well founded.

Dated: 30th June 2022

Workplace Relations Commission Adjudication Officer: Hugh Lonsdale

Key Words:

No written terms of employment