ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference ADJ 49287

Parties:

	Worker	Employer
Anonymised Parties	Truck driver	Haulage business

Representatives

Dispute:

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

ADJ-49287

05/07/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Date of Hearing: 30th November 2023

Procedure:

In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will also take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or the non-employment, or with the terms and conditions of or affecting the employment of any person.

I have confirmed that the Complainant herein is a Worker within the meaning of the Acts and I have conducted an investigation into the said trade dispute as described in Section 13. It is noted that Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC.

It is noted that the Complainant herein is alleging that there was a fundamental breach of Contract such that he was constructively dismissed. It is further noted that the complainant has less than one year of service with the Employer. In such circumstances, Section 20(1) of the Industrial Relations Act of 1969 allows the worker to refer the dismissal to the WRC as a dispute under the Industrial Relations Acts.

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.

Summary of Workers Case:

The Complainant was not represented and 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 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 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.

Summary of Employer’s Case:

The Respondent did not attend. I am satisfied that the Respondent company was notified of the date, 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.

Conclusions:

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 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 also never received the core terms of the contractual arrangements.

The Complainant was never paid accrues 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 siter Director Redacted 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 back 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. I am satisfied that the Constructive Dismissal arose out of fundamental breach of Contract perpetrated by the Employer who failed to pay the Complainant/worker his wages.

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

Recommendation:

Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent pay to the Complainant the sum of €4,000.00 within four weeks of the date of this recommendation. This is compensation for the loss of earnings up to the time when the Complainant was able to find employment again.

Dated: 19th December 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: