Complainant

Respondent

Parties

Robert  Stolarczyk

Asian Food Stores

Representatives

  In person

Ms. Donna Crampsie, Solicitor O'Gorman Cunningham & Co. Solicitors

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-00029265-001

24/06/2019

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

CA-00029266-001

24/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029268-001

24/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00029269-001

24/06/2019

The Complainant worked as a driver for the Respondent, an Asian goods distribution business based in Letterkenny, Co. Donegal. After a year of employment, during which the Complainant alleges he was paid less than minimum wage, the Respondent took him off the work roster and stopped paying him. His claims are for inadequately paid wages, payment in respect of annual leave, minimum- notice and unfair dismissal.

The Respondent denies the complaints and submits that all four complaints are out of time, as they were brought over 12 months after the alleged breaches took place

Complaints, as identified on the four Complaint forms

CA-00029265-001 (Pay)

The Complainant was paid wages which were less than minimum wage.

CA-00029266-001 (Annual Leave)

The Complainant was not provided with his statutory holiday entitlements.

CA-00029268-001 (Minimum Notice)

Before he was dismissed on 16.6.18 the Complainant was not given any notice.

CA-00029269-001 (Unfair Dismissal)

The Respondent dismissed the Complainant on 16.6.18. having not been rostered for work since 1.6.18.

Adjudication Hearing

The Complainant gave evidence under oath with the assistance of a Polish Language interpreter (who swore an interpreter’s oath.)

Jurisdiction

In response to the Respondent’s preliminary application, that the complaints were out of time, the Complainant, gave the following evidence:

He was employed until 26 June 2018, not 16 June 2018 (as was asserted in his complaint forms.) As proof, he showed text messages between him and the owner of the Respondent dated 19 June 2018, 20 June 2018 and 26 June 2018, which prove that the Complainant believed on those dates, that he was still working for the Respondent.

The Respondent texted him on 19 June stating: “At 3 star” Which the Complainant contends meant “At 3pm start work”

His text to the Respondent on 19 June stated: “I can’t work today sorry but tomorrow no problem.”

On 20 June he texted the Respondent: “Hi what time today thanks. “

His text to the Respondent on 26 June 2018 stated: “I’m wait for you in new shop.”

These texts show that he considered himself to be employed until 26 June 2018. And if this is so,  his complaints are brought within 12 months of the date of the breach.   

Dismissal

His evidence was that he was dismissed on 26 June 2018, following an argument.

He stopped being rostered for work in or around 19 June 2018 (not 1 June 2018 as he stated on his complaint form) and when on 26 June he went to the Respondent to find out why he was not being rostered, he was told by the Respondent that he was dismissed.

Following his dismissal, the Complainant became very annoyed and vandalised the Respondent’s vans spraying the following words in red: “Slave Work. Slave Labour.  [The Respondent] robs workers; No PRSI, No Minimum 3,4,4,6 euro per hour” in respect of which he was subsequently prosecuted. The evidence from the Gardai confirmed that this damage (Complainant contends it was a protest against poor work conditions) took place on 26 June 2018.

He submits that it is not likely that he was dismissed on 16 June and then he waited ten days until 26 June before he then suddenly became annoyed and did the damage to the Respondent’s property. He was not informed of his dismissal until 26 June 2018 and this is when he became irate.

Given his text to the Respondent on 20 June (that he would be in for work the following day) the reason he believed on 20 June that he was still an employee is because he had not been told that he was not and that it wasn’t until 26 June that he was verbally told he was dismissed that he decided to do damage to spray the Respondent’s vans.

He contends that the timing of the damage to the vans is significant and points to when he was informed of his dismissal.

Cross-examination

It was put to the Complainant that on his four complaint forms, he identified his end date (his dismissal date) as being 16 June 2018 and nowhere within these complaint forms did he identify this as being anything other than 16 June 2018. Also, there is nothing in the complaint forms which refers to him being employed until 26 June.

-        He replied that his complaint forms were incorrect. He got a friend to help him file them and a mistake must have been made. It is four years ago so hard to recall. He was asked was he mistaken about the dismissal date then or the date now and the Complainant said that he wasn’t sure.

When asked if he had received the letter of dismissal dated 17 May 2018 in which the Respondent identified that his dismissal date will be the 16 June 2018.

-        The Complainant accepted that he had received the dismissal letter but said that he got it much later, after 26 June 2018, which meant that the termination date (which was cited in the letter as being 16 June 2018)  had already passed. He couldn’t remember exactly when he got the dismissal letter.

When it was put to him that his P45 identifies his cessation date as being 16 June 2018

-        He accepted but said that the P45 must be wrong.  

When asked, if the P45 had been wrong, did he ever complained about this wrong date to the Department of Social Welfare or his former employer?

-        To which he replied that he had seven mouths to feed. He was looking for work at that point and did not have any time to complain a date being wrong.

When asked from what date, did he start receiving social welfare payments and was it 16 June 2018?

-        He said that he could not recall.

When asked why his minimum notice and his unfair dismissal complaint forms each refer to him not being rostered from 1 June 2018 onwards and his dismissal date being on 1 June 2018?

-        He said that those dates were wrong and that his pay was stopped around 19 June 2018. He had no explanation for the content of his complaint forms.

-        From 19 June 2018 he contacted the Respondent asking why he was not being rostered, but the Respondent did not reply. The Respondent then texted him on 19 June 2018 advising him to start work at 3pm (the text said “At 3 star”) which the Complainant understood to mean “At 3pm start” following which the Complainant replied that he could not work that day, but could tomorrow, ie 20 June 2018.

-        On 20 June the Complainant did not hear from the Respondent and when he texted him, and rang him, but the Respondent did not reply.

-        Around 26 June 2018 the Complainant, not having heard back from the Respondent, he called into the business and there he met the Respondent and had an argument with him. While he had not been rostered for some time, it wasn’t until that visit, that he was informed that he had been dismissed and it was then, and in reaction to that altercation,  that he vandalised the Respondent’s van.

-        The reason that the issue of the WRC complaints were delayed was because he attended a solicitor who told him again and again that his complaint forms had been issued but that was not true, they were never issued.

Preliminary Application: No Jurisdiction/ Complaints brought outside time limit

The complaints were received by the WRC on 24 June 2019, that is, over 12 months after the alleged breaches occurred.  It is accepted that all four complaints were issued outside the 6-month time period and no extension for reasonable cause has been applied for. The Respondent contends that the complaints are also outside 12 months. As a result, there is no jurisdiction for the WRC to investigate these matters.

It was only after the WRC notified the Complainant that his complaints were out of time that the Complainant changed his cessation date from what he had inserted on his complaint forms to a later date.

Text messages - which were only produced during the WRC Adjudication hearing - at their height, show that there was text communication between the Respondent and the Complainant until 19 June 2018 but those texts were about dropping a van back. There is nothing in the texts - from the Respondent, at least - to indicate that his employment was continuing.

His employment ended on 16 June 2018. The dismissal letter states it, the P45 states it, even the Complainant’s complaint form states it. The Complaints are outside the 6 months and outside the 12 months from the date of the alleged breaches.

The WRC does not have jurisdiction to investigate these complaints.

Preliminary Application.

The preliminary question that I am confined to, is whether these four complaints are outside the time limits permitted by section 41 of the Workplace Relations Act 2015, as amended.

Having heard the evidence of the Complainant, I am not satisfied that he has proven on the balance of probabilities that his employment lasted until 26 June 2018. I am satisfied that the Respondent’s documentation supports a finding that the employment ceased on 16 June 2018 and I am satisfied that, when he filled in the WRC complaint forms, he accepted that his dismissal occurred on 16 June 2018, even if he was told it on a date later than that, namely on 26 June 2018.

The Respondent relies on a dismissal letter (dated a month earlier on 17 May), a P45 and the Complainant’s complaint forms; all of which support the Respondent’s application, that the Complainant’s dismissal date was 16 June 2018.

The Complainant contends that he never got the dismissal letter or the P45 until 26 June 2018. He contends that while from the start of June he knew he had not been rostered for work (which worried him) because of texts that were exchanged between him and the Respondent on 19 June, he believed that his employment was continuing. As time went on that week and his attempts to seek clarification from the Respondent were ignored, he became more concerned. He feared that he had been dismissed but had not been told he had. A passive type of dismissal.   He contends that it was not until 26 June when he spoke to the Respondent that he found out that he had been dismissed. Receipt of his P45 also occurred on that date. He contends that until 26 June, his position was ambiguous or unclear. The date of dismissal is when the dismissal is communicated to a worker, and this did not take place until 26 June 2018.

What is unusual in this case, is that following the confirmation of the dismissal on 26 June, the Complainant then accepted the dismissal date as being 16 June 2018. He did not seek to correct the P45 with the Department of Social Protection. He did not query the date in the dismissal letter, which he accepts he received. He then went on to record 16 June 2018 as being the dismissal date in his WRC complaint form. None of this (acceptance by him of the earlier dismissal date)  is consistent with the evidence that he gave during the Adjudication hearing.

While I accept that from the Complainant’s point of view, there may have been a lack of clarity as to whether he had been dismissed or not until 26 June, when he was told on 26 June that he had been dismissed the previous 16 June, for whatever reason he chose to accept this as being his dismissal date. Perhaps it was because it was the date from which he was not rostered, the date from which he was no longer paid, a de facto dismissal. He did not have to accept or rely on this date. In his complaint form it was open to him to state that 26 June 2018 was when he was dismissed and the reasons why that was so, but he did not.

In these circumstances, where it was ambiguous when exactly the dismissal took place (because the employment ended on 16 June but was not confirmed until 26 June) I find, on the balance of probabilities, that the Complainant’s employment ended on 16 June 2018. I am most persuaded by the fact that the Complainant himself relied on this being the date of his dismissal in the complaint forms. Having done so, it is difficult for him to now contend that he no longer considers 16 June 2018 to be his dismissal date. 

Based on this finding of fact, it follows that I am obliged to also find that these complaints (which issued on 24 June 2019) were not brought within the statutory time-period and the WRC does not have the jurisdiction to investigate these complaints.

If I am incorrect in my finding and the Complainant’s employment did continue until 26 June 2018, these complaints would still be outside 6 months from the date of alleged breaches, in which case an application for reasonably caused delay would be required, to extend time for the complaints to be investigated. The Complainant has been on notice of this from receipt of the Respondent’s submissions and no such reasonable cause argument has been raised by him.

Lastly where a delay in issuing a WRC complaint lies with a legal representative, the remedy for that lies in different forum and such circumstances do not provide grounds upon which the mandatory time limits may be dis-applied.

In these circumstances I find these complaints to be not well founded

I find each of these complaints to be not well founded

Jurisdiction - Time Limits