ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00044671

Parties:

Complaint(s):

Date of Adjudication Hearing:  28/08/2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). Evidence was given under oath.

Background:

Preliminary Matter

The Respondent has stated that the matters before this tribunal are either misconceived and/or not particularised enough to allow them to respond. In the absence of meeting that relatively low threshold to state what specific wrongs the Respondent is alleged to have committed, the complaint should be dismissed. Also, no improper deduction was made from the Complainant’s salary and the allegations made under this heading are misconceived.

Insufficient Particulars:

I note in Delaney and McGrath (4th Ed 2018 Round Hall)

5-82

An example of a case where sufficient particulars of negligence were not provided is Mitchell v Arthurs.188 The plaintiff workman sued for damages arising out of the fall of bricks from scaffolding and pleaded that the defendant “so carelessly, negligently, and unskilfully erected the scaffolding, that a large number of bricks fell on the plaintiff”. The statement of claim was struck out as embarrassing on the basis that it merely made a general plea of negligence and failed to specify the particular defects in the scaffolding of which complaint was made.

I also note in Civil Proceedings Delaney and McGrath cite:

If a party is not satisfied that sufficient  particulars of his opponent’s claim have been given, the proper course of action is to bring a motion to compel replies rather than a motion to strike out the pleading on the ground that it fails to disclose a reasonable cause of action pursuant to Order 19, rule 28: Tromso Sparebank v Beirne, High Court (Costello J), 14 March 1988.

On the written submission and based on the evidence presented at the hearing there is a dearth of specificity concerning the breaches that have occurred. The Complainant called no witnesses to corroborate his claims. The Complainant opened no documentary evidence such as a payslip to support his claims.

The Respondent opened several cases to support their position that the matters before this tribunal are not properly particularised and that offends the right to prepare a defence and fair procedures. They rely on ISS Limited v Zhivko Mitsov (DWT1159). I note that the Court in this case stated that there is no provision in the Organisation of Working Time Act 1997 as amended to serve a notice for particulars. While I accept that proposition, a tribunal can set procedures that are fair which would include a party to provide further or better particulars. Parties do in fact agree voluntarily to provide further and better particulars to avoid an application for a case to be dismissed for want of sufficient particulars.

Dispute Procedures Flexible/Informal:

I also note that In County Louth Vocational Educational Committee v the Equality Tribunal and Pearse Brannignan [2016] IESC 40 2016 Mr. Justice John MacMenamin, the Court stated that:

Consideration

47. It is well established that the purpose of a deciding body or tribunal, such as the respondent Tribunal, is to provide speedy and effective redress in cases of alleged discrimination. It is not in dispute the procedures employed may be both informal and flexible. It is true, as Mr. Gerard Durcan, S.C., counsel for the Tribunal, submits, that the range of claimants before such a Tribunal do not fit into any one category. They may or may not be legally represented and, therefore, flexibility is both warranted and necessary.

In this case the Complainant is a lay-litigant therefore flexibility should be exercised in so far as that flexibility is merited and is fair to both parties.

Obligation to produce records:

I also note that in ISS Ltd the Court stated that the obligation on the Respondent employer to keep records as provided for at section 25 of the Act and the onus on the employer of proving in proceedings that this provision was complied with is subject to the Complainant adducing some facts that non-compliance has occurred:

4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this [Act or the Activities of Doctors in Training Regulations] in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

In this case there has been no request for the Employer to produce records. In ISS Limited the court stated:

The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained.

This would appear to suggest that some evidence must be adduced that tends to show that non-compliance occurred. It does not mean that the Complainant must detail all incidents of non-compliance and to support those with evidence; however, the Complainant must provide sufficient evidence that shows the Employer failed to keep records as required. If that threshold is met the evidential burden falls on the Employer to show that they were in fact compliant relating to the allegations being made against them.

The wording in the Act is specific in that it arises where an employer fails to keep records:

This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that as a matter of basic fairness the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.

On the facts I have determined that the Respondent in this case has not been provided with sufficient particularity regarding a non-compliance with the Act either in the actual written submission and at the hearing of the complaints. As the Complainant has provided no evidence to support his allegations; the Burden of Proof should not shift onto the Employer to show that the Complainant has not worked excessive hours and that he received his breaks.

Dismiss Claim as Misconceived:

I also note as cited in Delaney and McGrath that the Superior Courts have clarified when claims in the courts should be dismissed as misconceived:

Basis on which the Jurisdiction Will Be Exercised

16-06

It is well-established that the jurisdiction conferred by Order 19, rule 28 is exercisable by reference to the pleadings only. In McCabe v Harding11 O'Higgins CJ stressed that, in order for rule 28 to apply, “vexation or frivolity must appear from the pleadings alone”, a point that was reiterated by Costello J in Barry v Buckley,12 who stated that “the court can only make an order under this rule when a pleading discloses no reasonable cause of action on its face”. This basic principle was reaffirmed by Costello J in D.K. v King,13 where he stated that rule 28 only applies where it can be shown that the text of the plaintiff’s summons or statement of claim discloses no reasonable cause of action or that the action is frivolous or vexatious. So, for the purposes of considering whether to accede to an application based on rule 28, the court should consider the pleadings14 only, ignoring any affidavit evidence filed,15 and further must proceed on the basis that any statements of fact contained in the pleading sought to be struck out are true and can be proved by the party.16 Clarke J made it clear in Salthill Properties Ltd v Royal Bank of Scotland plc17 that “the court must accept the facts as asserted in the plaintiff’s claim, for if the facts so asserted are such that they would, if true, give rise to a cause of action then the proceedings do disclose a potentially valid claim.” As Baker J stated in Wilkinson v Ardbrook Homes Ltd,18 the approach of the court should be “to ask whether the plaintiff could possibly succeed on the case as pleaded and in the light of the facts asserted, and only if it is satisfied that a plaintiff could not possibly establish those facts, or could not possibly succeed on the pleadings, should the proceedings be struck out.”

No Breaks and Excessive Working Hours:

This Complainant states the following:

1. CA-00049361-004 C3: I do not get breaks (Organisation pf Working Time Act, 1997)
2. CA-00049361-005 C8: I am required to work more than the maximum number of hours ((Organisation of Working Time Act, 1997)
3. CA-00049361-001 27 I do not get breaks set out in an Employment Regulation Order (ERO)

The Respondent employer is not subject to an Employment Regulation Order and therefore I determine that CA-00049361-001 is legally misconceived.

However, CA-00049362-004 and CA-00049362-005 on the papers are not misconceived as they assert facts that in the first instance must be assumed to be true. However, an assertion must be supported by an evidential fact. At the hearing the Complainant was provided an opportunity to elaborate on these allegations that he never received any breaks and that he was required to work more than the maximum number of hours allowed under the Act. However, he adduced no evidence of non-compliance to support these allegations other than to state that he received cigarette breaks.

As the Complainant has adduced no evidence of non-compliance at the hearing, I must find that these complaints relating to failure to be provided with break periods and also being required to work over and above maximum hours are not well founded.

There are also two further complaints that the parties wish to be adjudicated upon. They relate to an allegation that:

• CA-00049361-002 - My employer has made an unlawful deduction from my wages – Complaint under the Payment of Wages Act 1991.
• CA-00049361-003 - My employer has not paid me or has paid me less than the amount due to me – Complaint under the Payment of Wages Act 1991.

The background to this complaint relates to the Complainant being placed on emergency tax for at least 5 months. This put him under very significant financial pressure. The Payroll Manager gave evidence that there was no unlawful deduction. The matter complained about related to being placed on emergency tax which is a statutory obligation. The Manager stated that while there was a delay this was not intentional and arose arising from both the Complainant and the Respondent working to tight payroll deadlines at the end of year and not having all the required information to hand.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   06th December 2023

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: