Complainant

Respondent

Anonymised Parties

An Employee

A Garage

Representatives

Groarke & Partners Solicitors

 Flynn & McMorrow Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00049081-001

09/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00049081-002

09/03/2022

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

CA-00049081-003

09/03/2022

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

CA-00049081-004

09/03/2022

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

CA-00049081-005

09/03/2022

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

CA-00049081-006

09/03/2022

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

CA-00049081-007

09/03/2022

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

CA-00049081-008

09/03/2022

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

CA-00049081-009

09/03/2022

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

CA-00049081-010

09/03/2022

The complainant was employed from 27 July 1970 until 17 December 2021. Dismissal is in dispute. The respondent is a family business which is run by Mr and Mrs K.

Written Complaint

The complainant submitted that on 17 December 2021 he was accused of stealing and fired without notice. The complainant outlined that he worked 84 hours over 7 days and received no rest intervals during the day or daily and weekly rest. The complainant contended that he never received holidays or holiday pay or payment for working public holidays. He was paid a flat rate of €450 per week and was paid less than the minimum wage. The complainant submitted that he did not receive a statement of terms of employment.

Evidence of the Complainant

The complainant outlined that he began working for the respondent family business when he was the age of 16 and that he enjoyed over 50 years of a happy working life with the respondent. He submitted that he was responsible for doing everything at the garage including attending the pumps, fixing punctures, working in the shop and so on.

On 17 December 2021, he had just returned from his evening tea break, when one of the owners Mr K brought him to the office.  Mrs K was present also, the other owner of the respondent business. The complainant was told that 44,200 litres of gas was missing, to which he replied there must be a leak. At that he was told “you can f*** off with yourself now, you are fired, and you can walk up the road”. The complainant said nothing and left the premises. He never returned. The meeting lasted no more than 3 minutes. The complainant submitted that he was not given a chance to defend himself. The complainant denies stealing from the respondent. The complainant believed that the respondent wanted a younger person.

On 18 November 2021, the complainant was asked by Mrs K if customer X had paid for coal. The complainant confirmed that customer X had paid for the coal in cash. The following day, Mrs K came into the coal shed where the complainant was working. She asked again if customer X had paid for the coal the previous day. The complainant confirmed that customer X had paid in cash. The complainant submitted that Mrs K said to him that “her husband has a gun and if you ever do that again, he will blow the f***ing head off you”.  The complainant stated that he did not receive a follow up letter on 26 November 2021 confirming the verbal warning given on 19 November 2021.

The complainant submitted that he worked 7 days a week, 364 days of the year. His only day off was Christmas Day. If his children had a special occasion, such as a First Communion, he would go to the mass and then return to work. If he asked for holidays, his request was refused. The complainant outlined that his working hours were 10am to 10pm Monday to Saturday and 1pm to 10pm Sunday. Occasionally he would start work at 8am if there was a coal delivery. The complainant went home for a sandwich and a cup of tea some days between 2pm and 3pm. Occasionally he got a call to return to the garage when he was on his break. He got no break between 3pm and 10pm.

The complainant stated he did not receive a written contract of employment and never signed a contract of employment. He stated he did not ask for one either as he knew he would never get one.

The complainant was earning €450 weekly at the time of termination of employment. Payment was in cash. He never received a payslip. The complainant secured part-time employment in July 2022 earning €200 weekly.

Cross Examination

In cross examination, the complainant accepted that if 44,200 litres of gas were leaking, there was no doubt that the entire locality would be aware of the smell of same. It was put to the complainant that those were not the words said by the respondent nor did the respondent tell him he was fired. Rather he was shown CCTV footage and when asked for an explanation said, “I’m saying nothing” and immediately left and never returned. The complainant denied this. The complainant was asked why he did not defend himself in anyway on 17 December 2021 to which the complainant stated he never got a chance. The complainant accepted that he made no attempt personally to contact the respondent after the 17 December 2021, but he stated this was because he was told he was fired. If there had been a way back, he would have called the respondent.

The complainant was questioned about the events on 18 November 2021 and why he had not put the cash for the sale in the till. The complainant replied that on this date he was asked by the respondent if customer X had paid for coal. He confirmed that customer X had paid for the coal in cash. The complainant stated that the respondent didn’t trust this customer, so instead of keying in the transaction while in the shop with the customer, he kept the cash in his hand and followed customer X out of the shop to ensure he didn’t take anything else without paying. Mrs K had come into the shop during that time and cleared the tills. The complainant didn’t put the cash that was in his hand into the till as Mrs K was working on the till. The complainant denied that he put the cash in his pocket and that he subsequently did not enter the transaction on the till. The complainant denied he received a letter from Mrs K on 26 November 2021.

The complainant confirmed that he was a trusted employee and that he had a lot of flexibility. He denied that he would go up the town for breakfast once he had put the coal out each morning. It was put to the complainant that it was incredulous that he worked 7 days a week, 364 days of the year without a break or a holiday for 50 years and that he never complained. The complainant responded that he knew it was slave labour, but he was in a rut for 50 years and he had no choice but to keep going. There was no one else to do the work so he had to be there every day. He denied that he was free to come and go as he pleased. The claimant then confirmed that there was another person working at the garage “R”, but he was on the phone, and more recently a son of the respondent worked there but the complainant was needed to do everything. The complainant confirmed that he never complained as no one would listen to him.

It was put to the complainant that he was given two warnings to stop what he was doing. The complainant denied he was given any warnings and stated he did not receive the letter dated 26 November 2021. It was put to the complainant that the meeting on the 17 December 2021 was an enquiry to ascertain what the complainant was doing in the CCTV footage and to get the complainant’s perspective. The complainant responded he was fired on the 17 December 2021 and given no chance to defend himself. The complainant stated that he did not see CCTV footage on 17 December 2021, but he acknowledged that he was subsequently shown CCTV footage relating to him by An Garda Síochána.

The complainant denied he received a written contract and denied he received payslips in relation to an application for a medical card.

Evidence of Mrs K

Mrs K and her husband took over the business in 2005. The business was previously owned by her father-in-law. There were two separate premises, a show room, and a petrol garage. The complainant was held in the height of esteem by her and her family and this whole episode has been heart breaking for the family.

Mrs K described the evening of 18 November 2021. She was driving down the road and saw customer X running with a bag of coal on his shoulder. Mrs K thought it unusual that someone would be running with an item as heavy as a bag of coal. She then came into the garage to empty the till. The complainant was in the forecourt, and she asked him if customer X had paid for the coal. The complainant confirmed that customer X had paid for the coal in cash. Mrs K went into the garage to empty the tills. There was no record of the sale of the coal. Mrs K later looked at the CCTV footage of the time of the transaction. Mrs K stated that it showed the complainant putting the cash in his pocket and that the complainant had done the same thing one hour previously in relation to another cash payment for coal.

The following day Mrs K went into the coal shed where the complainant was working. She told the complainant what she saw on the CCTV footage and that she was not happy. She said to him that she would not tell Mr K and would give the complainant another chance as she did not want to embarrass him or her family. She put a follow up letter in with his wages on 26 November 2021 advising him that he was never to engage in this behaviour again and that all sales transactions were to be recorded thereafter. The letter stated that Mrs K trusted that the complainant would not engage in this behaviour again; otherwise she would have to take further action. Mrs K stated that had the complainant stopped what he was doing that would have been the end of the matter.

Mrs K continued to examine footage in the following weeks and again saw the complainant putting cash received for sales into his pocket on several occasions. She decided to speak to her husband. On 17 December 2021 Mrs K and her husband asked the complainant to come into the office. The purpose of this meeting was to show the complainant CCTV footage and to ask him to explain what he was doing. The complainant said he had nothing to say and was leaving and that the respondent could keep the Christmas bonus. Mrs K could not believe that the complainant made no effort to defend himself after all the years he had worked with the respondent. At no time did the complainant deny that he had taken the cash. A family member of the complainant phoned Mrs K the following morning to ask what happened. Mrs K said to that person that they would have to ask the complainant himself for that information. There was no further contact from the complainant. The matter was then reported to An Garda Síochána and is part of an ongoing criminal investigation.

Contracts of employment were issued to all staff including the complainant in 2005 following a transfer of undertakings. The signed originals were water damaged in the old premises.

Mrs K stated that the complainant was free to work his own hours as he pleased. He was not required to work 84 hours per week. Provided the complainant worked 40 hours per week, he was free to come and go and he was never questioned as to where he was. Generally the complainant came in at 10am and put out the coal and he then left in his van at 10.15am and returned at 11am. He took a lunch break from 2 to 3pm and evening break from 5pm to 6pm. He did not work alone and there was always another person with him in the garage. Since COVID-19 the garage has closed between 8pm and 9pm. The complainant’s start and finish times were 10am to 9pm Monday to Saturday and 1pm to 8pm Sunday. There was no clocking system or method of recording hours of work.  Mrs K stated that the complainant would not take his annual leave and that had he asked for leave, there would be no problem if he took leave. The respondent stated that the complainant received all holiday pay due to him and that he was paid double pay for public holidays.

Cross Examination

The respondent replied that it was the sight of customer X running with a bag of coal that prompted her to ask had customer X paid for the coal. The complainant must have got the letter of 26 November 2021 because it was in with his wages; otherwise he would not have received his pay that week and surely he would have questioned that. The multiple chances to stop what he was doing was the conversation on 19 November 2021 in the coal shed and the follow up letter of 26 November 2021. The respondent confirmed that she had no record of the signed contract issued in 2005. The complainant was asked to take his holidays but refused. The respondent would have preferred if he spent more time with his family.

CA-00049081-001 – Unfair Dismissal

Section 1(a) of the Unfair Dismissals Acts 1977 – 2015 (“the Acts”) defines dismissal as including:

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee . . .”

There must be a dismissal as defined by s 1(a) of the Acts before a complainant can obtain redress under the Acts. Where the fact of dismissal is in dispute, it is for the complainant to show that a dismissal occurred. If that burden is discharged, the burden of proof then shifts to the respondent to show that the dismissal was carried out fairly.

There is a clear conflict of evidence as to what was said in the office on 17 December 2021. The complainant outlined that on this date he was accused of theft and summarily dismissed. The complainant submitted that he did not see CCTV footage at this meeting. This is refuted by Mrs K, who submitted that on 17 December 2021, CCTV footage was shown to the complainant which allegedly showed the complainant putting cash into his pocket on several dates. The respondent submitted that on seeing this footage the complainant stated he was leaving and accordingly, he resigned his position on 17 December 2021. A member of the complainant’s family contacted the respondent on 18 December 2021 to ascertain what happened the evening before. It is the respondent’s case that this family member was told that he would have to ask the complainant for that information. No further contact was made by either the respondent or the complainant after this call on 18 December 2021.

I am satisfied that the complainant has discharged the burden on him to show that a dismissal occurred on 17 December 2021 for the following reasons. It is common case that on 19 November 2021, Mrs K came into the coal shed and gave the complainant a verbal warning to desist in the alleged misconduct. It is the respondent’s case that the complainant continued to engage in this alleged conduct and that CCTV footage of subsequent repeated instances of the alleged conduct was shown to the complainant on 17 December 2021. It is common case that this meeting only lasted minutes. It is hard to see how the respondent could have shown that footage within that space of time. This, coupled with the fact that both parties acknowledge a warning had been given on 19 November 2021, leads me to find on the balance, that the complainant’s version of events, that he was told he was fired, is more probable.

Section 6(1) of the Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(7) of the Acts provide that in determining if a dismissal is an unfair dismissal, regard may be had to the: (a) reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

It is well established that in general basic rules of fairness and natural justice apply to dismissal including: the right of the employee to be informed of the issue; the right of the employee to representation; the right of the employee to a fair hearing; the right of the employee to state their case (which includes the right to be presented with the evidence and to have an opportunity to examine and refute same); and the right of the employee to appeal the outcome. The Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) provides a template to employers on how to handle disciplinary issues in the workplace. Whilst not legally binding, the Workplace Relations Commission can have regard to adherence with the Code.

In McHugh v The Sign and Graphic Centre Ltd t/a O’Reilly Signs (UD334/2008), dismissal was in dispute. The complainant in that case alleged that the employer told him to leave and not to come back. Whereas the respondent alleged that the employee said he had enough and left. In finding that there had been a dismissal on the date of the verbal exchange, the Employment Appeals Tribunal found that there was “. . . no investigation of this matter, of any type” and accordingly, the complainant had been unfairly dismissed.

It is not for the Workplace Relations Commission to establish the guilt or innocence of the complainant but rather to assess the reasonableness of the employer’s response on foot of the discovery of alleged wrongdoing. In this regard the respondent could have considered suspending the complainant pending investigation. If the complainant did walk out as asserted by the respondent, this did not preclude the respondent from clarifying if the complainant had in fact resigned or wished to resign. Nor did it preclude the respondent from writing to the employee to communicate its intention to investigate the alleged wrongdoing. The complainant had worked for over 51 years for the respondent without issue prior to November 2021. It was incumbent on the employer to follow fair procedures once a suspicion of wrongdoing came to the respondent’s attention. I find that the complainant was dismissed by the respondent on 17 December 2021 without notice and that the failure to follow fair procedures renders the dismissal unfair.

Section 7 of the Acts provides that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the Adjudication Officer considers appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances.

I find that compensation is the appropriate remedy in the circumstances of this case. The complainant was earning €450 weekly at the time of dismissal. The complainant secured part-time employment in July 2022 earning €200 weekly.

Section 7(2)(c) of the Acts provides:

 “. . . in determining the amount of compensation payable regard shall be had to —the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss . . . .”

The complainant provided no evidence of his efforts to mitigate his loss between December 2021 and June 2022. I award compensation of €10,000 which I find is just and equitable in the circumstances of this case.

CA-00049081-002 – National Minimum Wage

Section 24(2) of the National Minimum Wage Act 2000 provides:

“The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015 - (a) unless the employee - (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information . . . .”

In Mansion House Ltd v Izquierdo (MWD043), the Labour Court stated as follows in relation to the jurisdiction of the Workplace Relations Commission: “[f]or the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section . . . .”

The complainant did not request a statement as required under s 23. Accordingly, I do not have jurisdiction to consider this complaint.

CA-00049081-003 – Hours of Work (Daily Rest Breaks)

Section 11 of the Organisation of Working Time Act 1997 provides:

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer”.

In Edward Jones Feeny v Milagros Baquiran (2004 DWT 0427), the Labour Court found that the respondent had failed to keep records in relation to the complainant’s working hours as required by the Organisation of Working Time Act 1997. The Court stated: “[s]ection 25(4) of the 1997 Act provides, in effect, that where records are not kept in the prescribed from, the onus of proving proceedings before this Court, that the provisions of the 1997 Act have been complied with in respect of the claimant, rests on the employer”.

The respondent maintained no records of hours of worked. Accordingly, I accept the complainant’s submission regarding hours worked as follows: Monday to Saturday 10am to 10pm and Sunday 1pm to 10pm.

In PMC Painting Contractors Ltd V Kwidzinska (DWT224) the Court noted: “[i]t is the view of the Court that, whereas it is for the employer to prove compliance with the requirements of the Act, an initial burden rests upon the Appellant to particularise her complaint by setting out the detail of any occasion on which she contends that a breach has occurred”. I note that the complainant stated that on occasion he may have to start at 8am to receive a delivery of coal, however, no information was provided to me on the frequency, or dates of this occurrence.  I understand from the complainant’s oral evidence that his normal hours of work were 10am to 10pm. On this basis I am satisfied that the complainant normally received 12 hours consecutive rest between the hours of 10pm and 10am.

I find that the respondent has not contravened s 11 of the Organisation of Working Time Act 1997 and accordingly, this complaint is not well-founded.  

CA-00049081-004 – Hours of Work (Rest Intervals)

Section 12 of the Organisation of Working Time Act 1997 provides:

“An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1) . . . .”

The complainant’s evidence was not consistent in relation to the taking of breaks. As already noted, an initial burden rests upon the complainant to particularise their complaint by setting out the detail of any occasion on which they contend that a breach has occurred.

On the evidence presented at the hearing, I am satisfied that the complainant received a minimum rest interval of at least one hour a day from 2pm to 3pm and that the break commenced within 4.5 hours of his normal starting time. The complainant acknowledged that he often received a break again in the evening between 5pm and 6pm.

I find that the respondent has not contravened s 12 of the Organisation of Working Time Act 1997 and accordingly, this complaint is not well-founded. 

CA-00049081-005 – Hours of Work (Weekly Rest Periods)

Section 13(2) of the Organisation of Working Time Act 1997 provides:

“Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period”.

It is common case that the employee worked 7 days a week and did not receive a weekly rest period.

Section 27 of the Organisation of Working Time Act 1997 provides:

“(1) In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

I find that the respondent contravened s 13 of the Organisation of Working Time Act 1997. I find that compensation is the appropriate remedy in the circumstances. I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-006 – Hours of Work (Maximum Working Weekly Working Hours)

Section 15 of the Organisation of Working Time Act provides:

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months . . . .”

Section 27 of the Organisation of Working Time Act 1997 provides:

“(1) In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

It was agreed that the complainant generally started work at 10am, however, the finish time was disputed. The onus of proving that the provisions of the Organisation of Working Time Act 1997 have been complied with in respect of the complainant rests on the respondent. No records were provided to me of start and finish times. Accordingly, I accept the complainant’s submission regarding starting and finishing times as follows: Monday to Saturday 10am to 10pm and Sunday 1pm to 10pm. The complainant stated in the complaint form he had no rest intervals, however, in evidence he accepted that he took a lunch break from 2pm to 3pm and that he frequently took a break in the afternoon. Accordingly, in the absence of any records from the respondent, I find that the total hours worked by the complainant per week (less breaks) were 68 hours. The appropriate reference period is 4 months. It was common case that the complainant did not take annual leave or other leave and worked 7 days per week. Accordingly, the hours worked exceeded that permitted under s 15 of the Organisation of Working Time Act 1997 over the applicable reference period of 4 months. Even if I were to accept the start and finish times as stated by the respondent, a calculation of those hours also shows that the hours worked by the complainant exceeded 48 hours on average.

The obligation to maintain records is on the respondent and where it fails to fulfil that obligation, it must bear the burden of rebutting the evidence of the complainant (DWT1924). In this case the respondent has not rebutted that evidence to my satisfaction. Accordingly, I find that the employer contravened s 15 of the Organisation of Working Time Act 1997. I find that compensation is the appropriate remedy in the circumstances. I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-007 – Hours of Work (Annual Leave)

Section 19(1) of the Organisation of Working Time Act 1997 provides:

“. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”.  

Section 27 of the Organisation of Working Time Act 1997 provides:

“(1) In this section ‘relevant provision’ means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In Stablefield Ltd Lacramioara Manciu (DWT1924) the Labour Court noted: “[t]he obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzanoin R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ, as it then was, made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”.

The leave year which is cognisable for the purpose of determining if an employee received their statutory entitlements is that prescribed by the Act itself, a year starting on 1 April and ending on 31 March the following year. The complainant referred this complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 9 March 2022. Having regard to section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of a claim is confined to the 6-month period ending on the date on which the complaint was presented to the Workplace Relations Commission. Therefore the cognisable period covered by this claim is the annual leave year commencing on 1 April 2021 to 31 March 2022.

It is common case that the employee did not take annual leave and that he worked 364 days of the year. Having reviewed the sample pay slips provided, I see no reference to payment for annual leave. The complainant’s working week was 7 days. Four of his working weeks equates to an entitlement of 28 days annual leave per annum. The respondent was obliged to ensure that the complainant availed of his annual leave entitlement. In failing to ensure the complainant availed of annual leave, the respondent contravened s 19 of the Organisation of Working Time Act 1997. I find that compensation is the appropriate remedy in the circumstances. I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-008 – Hours of Work (Public Holidays)

Section 21(1) of the Organisation of Working Time Act 1997 provides:

“Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay”.

The complainant referred his complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 9 March 2022. Having regard to s 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of a claim is confined to the 6-month period ending on the date on which the complaint was presented to the Workplace Relations Commission. Therefore the cognisable period covered by this claim is the 6-month period from 10 September 2021 until 9 March 2022. The complainant’s employment terminated on 17 December 2021.

The public holiday of 25 October 2021 fell within the cognisable period. The respondent submitted that the complainant was paid double pay for public holidays. I reviewed the payslips for October 2021. I note a payment of €541.44 on the payslip dated 29 October 2021. The normal net pay received was €452.28 on all the payslips I received for October, November, and December 2021. There is nothing on the payslip to indicate what this payment was in relation too, however, on balance I am satisfied that this payment related to extra days pay for the public holiday occurring on 25 October 2021.

I find that the respondent has not contravened s 21 of the Organisation of Working Time Act 1997 and accordingly, this complaint is not well-founded. 

CA-00049081-009- Terms and Conditions of Employment (Statement of Terms)

Section 3(1) of the Terms of Employment (Information) Act provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment . . . .” A contravention of s 3 the Terms of Employment (Information) Act is a subsisting and a continuing contravention if after the initial two-month period the employee remains an employee not in possession of a statement”.

Section 7(2) of the Terms of Employment (Information) Act 1994 provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6 or 6C shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) either— (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration . . . . ”

The complainant states he did not receive a statement as provided for by s 3(1) of the Terms of Employment (Information) Act 1994, nor did he sign a statement. The respondent submitted that a statement was provided to the employee in 2005 but due to water damage a hard copy of the signed statement is not available. A saved copy of the statement was opened in the hearing, but it bears no signature of the respondent (as required), and it was not signed by the complainant.

On the basis that no evidence of the giving of a signed statement was provided at the hearing, I find that this complaint is well founded, and I find that compensation is the appropriate form of redress in the circumstances. The respondent shall pay the complainant compensation of €1,800.

CA-00049081-010 – Minimum Notice

I have found that the employee was summarily dismissed on 17 December 2021.  

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides:

“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks”.

Section 12 (1) of the Minimum Notice and Terms of Employment Act 1973 as amended provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”.

The complainant had more than 15 years’ service and accordingly is entitled to 8 weeks’ notice. I find that this compliant is well founded and I calculate the complainant’s loss as follows: €450 x 8= €3,600.

CA-00049081-001 – Unfair Dismissal

I decide that that complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €10,000.  

CA-00049081-002 – National Minimum Wage

I decide I do not have jurisdiction to hear this complaint.

CA-00049081-003 – Hours of Work (Daily Rest)

I decide that this complaint is not well-founded.

CA-00049081-004 – Hours of Work (Rest Intervals)

I decide that this complaint is not well-founded.

CA-00049081-005 – Hours of Work (Weekly Rest)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-006 – Hours of Work (Maximum Working Hours)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-007 – Hours of Work (Annual Leave)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €5,000.

CA-00049081-008 – Hours of Work (Public Holidays)

I decide that this complaint is not well-founded.

CA-00049081-009- Terms and Conditions of Employment

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €1,800.

CA-00049081-010 – Minimum Notice

I decide that this complaint is well-founded, and the respondent shall pay the complainant the equivalent of 8 weeks’ pay = €3,600.

Summary:

In summary, I decide that the following payments to the complainant are warranted:

(1) In respect of unfair dismissal:

An award of compensation of €10,000.

(2) For breaches under the relevant sections of the Organisation of Working Time Act 1997:

Section 13 - €5,000.

Section 15 - €5,000.

Section 19 - €5,000.

(3) An award of €1,800 in respect of the contravention of s 3 of the Terms of Employment (Information) Act 1973.

(4) An award of €3,600 under the Minimum Notice and Terms of Employment Information Act 1973.

Unfair Dismissal. Minimum Notice. Organisation of Working Time. National Minimum Wage.