Complainant

Respondent

Parties

Niall  O'Neill

Corach International Transport Ltd

Representatives

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-00057616-001

05/07/2023

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

CA-00057616-002

05/07/2023

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

CA-00057616-003

05/07/2023

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

CA-00057616-004

05/07/2023

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

CA-00057616-005

05/07/2023

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

CA-00057616-006

05/07/2023

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-00057616-007

05/07/2023

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-00057616-008

05/07/2023

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-00057616-009

05/07/2023

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

CA-00057616-010

05/07/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice.  The hearing was not, however, conducted in public as one of the issues concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969 which said claim was not capable of being separated out.

The specific details of the Disputes and complaints are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of July 2023.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is a requirement that the evidence being tendered is honest and true, it is open to me to direct that all parties giving oral evidence before me swears an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised and provided separately.

The Complainant was not represented and he made his own case.  At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant outlined his case by way of oral evidence. The Complainant relied on the text correspondence between himself and his Employer as evidence of the employment relationship and of the failure of the Employer to make remunerative payments.

The Complainant alleges that he was engaged by the Respondent as a long haul driver on a fixed weekly wage. The Employer was erratic in paying wages and other remunerative benefits until eventually the Complainant had to leave the workplace by tendering his resignation by way of a constructive dismissal.

None of the Complainant’s evidence has been rebutted by the Respondent. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent did not attend. I am satisfied that the Respondent company was notified of the date and time and venue for this hearing, by a letter sent from the WRC - dated the 23rd of October 2023 - and sent to the registered office of the said Respondent company.

The Respondent has given no indication of its response to the different complaints made.

I have carefully listened to the evidence adduced by the Complainant herein. As hereinbefore noted, the Respondent did not attend and therefore the Complainant’s evidence has not been contradicted. As the Adjudicator assigned to hear this matter, I have tried to tease out certain issues by making relevant inquiries. I accept that the Complainant had been working for a trial period off the books from in and around August of 2022. The Complainant is a highly skilled long-haul driver with twenty years’ experience and the parties were known to one another before ever the Complainant came to work for the Respondent. The parties had agreed that the Complainant was to be put on the company payroll and the relevant information was provided to the Employer (for inclusion on payroll) on or about the 20th of September 2023. For the avoidance of doubt, I accept that the Complainant was an Employee of the Respondent company from this date.

I understand that the Complainant’s weekly wage was intended to be calculated on the basis of a nett daily rate of €150.00. The Employer was obliged to gross up the pay and discharge the tax, PRSI and USC liabilities.

From the very start the Complainant described a worrying workplace operation. For example, and whilst unrelated to breaches of employment legislation, the dangerous condition of trucks being allowed leave the yard would have to be a cause for some concern. The Complainant never received his Contract of Employment and he also never received the core terms of the contractual arrangements.

The Complainant was never paid accrued annual leave or public holidays. The Complainant says he never had any information around his contracted hours and was assigned hours over and above what is allowed. The Complainant was working abroad for long periods of time away from his wife and family.

The single biggest difficulty was the difficulty in getting paid. The Complainant had to continually harass and badger the on site Director Niall Murray to pay him for days and days of work done. By the start of March 2023, the Complainant was owed the sum of €1,650.00 for completed work which his Employer was seemingly unprepared or unable to pay. Not surprisingly, the Complainant had to give an ultimatum and indicated that he would not return to the workplace the next Monday if the outstanding pay was not discharged. The money was not paid and has never been paid. The Complainant considered himself effectively resigned from this point forward. I deem the employment to have terminated as of the 4th of March 2023. He was in employment for circa 23 or 24 weeks.

The Complainant was about three weeks out of work but got back into employment in the trucking business thereafter.

I invited the Complainant to go through each of the complaints raised in the workplace relations complaint form.

The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 (CA-00057616-001) which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015. In particular, there is a complaint of an unlawful deduction of €1,650.00 having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991. I find as a matter of fact that the money was unlawfully deducted.

The Complainant has brought a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (CA-00057616-002) and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to 4 weeks in a leave year in which the Employee has worked 1365 hours or more. Other calculations might be 1/3 of a working week in each month that the Employee has worked in excess of 177 hours or 8% of the hours worked up to 4 working weeks. I find as a matter of fact that the Complainant was given no annual leave or payment in lieu.

The Complainant has brought a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (CA-00057616-003) the Complaint herein relates to a contravention of Section 21 which sets out the entitlements in respect of Public Holidays. An employee is entitled to have a public holiday acknowledged by way of a paid day off on the day, a paid day off within a month of the day or an additional day of pay. I find as a matter of fact that Public Holidays were not recognised for the duration of this employment. Amounting to five days owed.

The Complainant has brought a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (CA-00057616-004) and in particular to a contravention under Section 17 of the Act which obliges the employer to provide certain information in relation to working time. In particular Section 17 reads:-

(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee (subject to section (3)), at least  24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or as the case may be the day or days concerned, of that week.

I accept that the Employer contravened this obligation, and the Complainant was given no certainty or structure to his working week.

Similarly, the Complainant brought a complaint of a contravention under Section 17(2) of the Organisation of Working Time Act, 1997 (CA-00057616-005) which obliges the employer to give notice of additional hours they may be required to work. This obligation was never observed by this Employer, per the Complainant. I accept this evidence.

The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 (CA-00057616-006) in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties. I accept that the said Statement of terms was never provided.

The Complainant made a complaint that his Employer was not keeping statutory employment records adjudication 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-00057616-007). The Complainant provided no specific evidence in relation to this allegation. I could not identify a means of knowledge.

The Complainant made a complaint of not being notified of the working hours regulations and seeks adjudication 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-00057616-008). The Complainant provided no specific evidence in relation to this complaint. I could not identify a means of knowledge.

The Complainant made a complaint of not being provided with records when required and seeks adjudication 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-00057616-009). The Complainant did not provide specific evidence of any means of knowledge regarding this issue.

The Complainant brought a further complaint of a contravention of section of the Terms of Employment (Information) Act, 1994 (CA-00057616-010). The Employment (Miscellaneous provisions) Act of 2018 (s.7) amended Section 3 of the Terms of Employment Act 1994 so as to oblige Employer’s to provide a new Employee with a written Statement of certain core details (names, employer’s address, nature of Contract, remuneration and hours) concerning the employment within 5 working days of the employment commencing. Failure to provide the core details after one month of continuous service can lead to an award of four weeks remuneration.  I am satisfied that the core terms were never provided.

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

CA-00057616-001  -  The complaint herein well founded and I direct that the Respondent pay to the Complainant the sum of €1,650.00 arising out of an unlawful deduction in that amount.

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

CA-00057616-002 - The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €2,000.00

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

CA-00057616-003 - The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €750.00

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

CA-00057616-004 - The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €500.00

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

CA-00057616-005 The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €500.00

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

CA-00057616-006 The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €500.00

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-00057616-007 - The complaint is not well founded.

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-00057616-008 - The complaint is not well founded.

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-00057616-009 - The complaint is not well founded.

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

CA-00057616-010 -The complaint is well founded and I require the employer to pay to the employee compensation in the sum of €500.00.