ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028845

Parties:

	Complainant	Respondent
Parties	Darren Conway	Overnight Delivery Limited

Representatives

Martin J. Burke Martin J. Burke Solicitors

Ciaran F. MacLochlainn C. S. Kelly & Co. Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00038573-001	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038573-004	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038573-005	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038573-007	07/07/2020
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-00038573-008	07/07/2020
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-00038573-009	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038573-010	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038573-011	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038573-012	07/07/2020
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-00038573-013	07/07/2020
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-00038573-014	07/07/2020
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-00038573-015	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038573-016	07/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00038573-017	07/07/2020

The following complaints under Regulation 18 of the European Communities (Road Transport ) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities ) Regulations 2012-S.I.N0 36 2012 were withdrawn:

CA-00038573-008

CA-00038573-009

CA-00038573-013

CA-00038573-014

CA-00038573-015

Date of Adjudication Hearing: 13/03/2023

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 6 of the Paymentof Wages Act 1991 and/or Section 27 of the Organisation of Working Time Act 19997 and/or Section 7 of the Terms of Employment ( Information )Act and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and/or Section 24 of the National Minimum Wage Act 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant asserted that he was employed as a driver with the respondent from the 1st.Jan 2017 to the 13th.Jan. 2020 .He submitted that the respondent was in breach of the National Minimum Wage Act ,2000 the Organisation of Working Time Act 1997 by failing to pay him his annual leave entitlement and by failing to facilitate him with appropriate rest breaks , the Payment of Wages Act ,1991 for failing to pay him notice on termination of his employment , the terms of Employment (Information) Act, 1994 for failing to furnish him with written terms and conditions of employment and failing to notify him in writing of a change to his terms of employment and the Unfair Dismissals Acts for dismissing him by telling him there was no work for him when he returned from a period of sick leave due to a foot injury.

The respondent denied all complaints and submitted that in any event the complaints were out of time as the complainant had resigned on the 28thNovember 2019 and the complaints to the WRC were not received until the 7th.July , 2020.

Witnesses :

The Complainant

Mrs. C – Company Director

Mr. C – Company Secretary

Summary of Complainant’s Case:

At the outset the complainant’s representative denied that the complaints were out of time .He

asserted that the exchanges referenced by the respondent’s representative between the complainant and Mrs. C were overridden by the conversation the complainant had with Mr. C where Mr. C had assured him he would sort the matter out with his wife Mrs. C. It was submitted that the respondent did not terminate the employment and that the complainant had worked on the 8th.January .It was argued that the employment had continued and that this was evident from the texts about the medical issue .It was advanced that the dismissal occurred during a phone call between the complainant and Mr. C on the 13th.Jan. 2020.

The complainant’s representative furnished the following submissions on behalf of the complainant

1. The claimant was a delivery driver for the employer. He was employed from 1/1/17 to 13/1/20. The claimant did not receive a contract of employment or terms of employment. The claimant is not aware of any collective agreement applying to the employment. The claim form was lodged on 7th July 2020.

2. The directors and owners of the employer were Mr. C and Mrs. C. The Employers operate a transport delivery business, having a contract primarily with the DX but also with opticians, banks and garages. The Employers ordinarily have five employees at all times.

3. From approximately January 2017 to March 2017, the claimant was working on Monday, Tuesday and Wednesday each week with his employment to commence at 16.30 hours until approximately 05.30 to 06.30 hours, the next day, depending on when deliveries were completed. He was paid €383 net per week at this time. He did not get breaks or opportunities for rest and relaxation during his driving day.

4. From approximately September 2017 to April 2018, the claimant was working 5 days per week with his daily working hours remaining the same.

5. In approximately April 2018, a man called Mr. Y started working with the company as a driver. Mr. Y was in receipt of Disability Allowance which the claimant was told by Mr. Y himself. In March 2018, in the Landmark Hotel in Carrick on Shannon, the claimant met with Mr. and Mrs. C along with his children and their children. At this meeting Mrs. C requested the claimant receive payment for five day's work each week but only work three to four days and to pay Mr. Y €140 cash per day, for any day that Mr. Y worked. Mr. Y had previously worked for the Employer and was being reemployed to cover the shifts which former employee Mr.H used to work.

The claimant did this from approximately April 2018 to 29/11/19.

On 29/11/19 the claimant’s wages reduced to €577 Net as the company stopped paying Mr. Y in this manner. At this stage he was working three days per week and another employee Mr.O C was working two days per week.

6. On 23/12/19 at about 19.15 hours, the claimant injured his left ankle while working. He was making a collection in Ballymahon when he slipped on the step outside the driver's door of his van. He reported the incident by telephone to Mr. C and also to Mr. K night manager of DX at the DX delivery depot which was the main base for management of deliveries. No incident report form was completed by the employer, to the claimant’s knowledge.

On 24/12/19, the claimant attended with his GP, Dr. David Greene in Carrick on Shannon Medical Centre. The GP referred him to Roscommon Hospital for x-ray. Following the x-ray, the hospital put him in a protective boot and gave him an appointment to the outpatient's department for 7/1/20.

7. The claimant could not keep his outpatient's appointment as he was requested to work on 7/1/20 even though Mr. C was aware that the claimant had this outpatient’s appointment. The claimant was contacted by Mr. C who told him that the van had to go to Dublin and there was nobody else available, so Mr. C asked the claimant to start the run and Mr. C met him in Ballinamore and took over the van run, while giving the claimant his own car to drive home with. Mr. C collected his car from the complainant’s house on 8/1/20.

8. On 13/1/20the claimant received a telephone call from Mr. C advising him that there would be no more work for him with the employer. The claimant was offered no explanation for this statement, he was not subjected to any disciplinary procedures or hearing, nor was he given any notice of termination.

9. The last payment the claimant received was on 10/01/20 and was in relation to one holiday day owing but he was not paid for work carried out on 7/1/20. He did not receive notice pay or outstanding holidays.

10. On 23/4/20 the claimant solicitor wrote to the employer and asked for the following to be furnished by 22/5/20.

i. A statement of average hourly rate of pay for each month in the period 1/1/19 to 31/1/20.

ii. His working pattern for the period 14/1/18 - 13/1/20 pursuant to Regulation 12 of the (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012

iii. Copy of his full employment record including a copy of his Contract of Employment and Terms and Conditions of Employment.

The employers response on 2/12/20 was inadequate.

11. In response to this request, the claimant received payslips for 2019 at DC3.

and van tracker timesheet for 16/1/19 and 17/1/19 (at DC4) but no further information.

12. The claimant was a mobile worker for the purpose of S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (hereinafter the Transport Regulations) which brought into force The Working Time Directive 2002/15/EC

See Guide to the Road Transport Working Time Directive – RSA at DC5.

Some of the provisions include that

i. The mobile worker must not be required to work more that 48 hours per week averaged out over the reference period. The reference periods for calculation maximum working time is:-

1 January to 1 May (18 weeks)

1 May 1 September (17 weeks)

1 September 1 January (17 weeks)

ii. Mobile workers must not work more than60 hours in a single week.

iii. Mobile workers may do a maximum of 10 hours’ work during the night-time in each 24-hour period, even if only five minutes of that work occurs during night-time.

Night working time is the time between midnight and 4am hours for the transport of goods

iv. Daily rest period of 11 continuous hours of rest in every 24-hour period. This may be reduced to 9 hours but no more than three times between 2 weekly rest periods;

v. Breaks during the working day

45 minutes’ break after 4.5 hours of driving. This 45 minute may be split into 15 minutes followed by 30 minutes during the 4.5 hours driving;

30 minutes’ break after six hours of working (but not driving or combined if driving time is less than 4.5 hours). This 30 minute-break may be split into two shorter breaks of 15 minutes each;

45 minutes’ break after nine hours of working (but not driving or combined if driving time is less than 4.5 hours). This 45-minute break may be split into three shorter breaks of 15 minutes each;

vi. The employer should keep records of evidence that each mobile worker is complying with the weekly working and night-time limits

Records might include time records, scheduling records, tachographs,

The claimant did not receive the national minimum rate of pay(National Minimum Wage Act 2000 (NMWA)

13. As per para. 9 herein, the claimant requested detail of the average hourly rate paid for each month in 2019. The employer furnished the payslips for the period but no record of working hours and no average hourly rate of pay for each of those months. Section 22 of the NMWA says the employer shall keep “such records as are necessary to show whether this Act is being complied” and that a failure to keep and retain such records raises a presumption the minimum wage was not paid.

14. Under S.23.4 the employer was obliged to furnish within 4 weeks of 23/4/20:-

“(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 … [ Schedule 1 ] ,

( b) the working hours of the employee calculated in accordance with section 8 ,

( c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20 , and

( d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

15. The claim is in time because the claim was brought within 6 months of 22/5/20 (s.24.2)

The claimant did not receive his paid holiday/annual leave entitlement (OWTA)

16. At date of termination, the employer was obliged to pay all outstanding holidays accrued under s.23 OWTA.

The claimant did not receive the appropriate payment in lieu of notice (Payment of Wages Act)

17. The claimant was entitled to 2 weeks notice of termination.

The claimant did not get a daily rest period (OWTA)

18. The claimant did not get 11 consecutive hours rest in any period of 24 hours.

The claimant did not get breaks (under R. 18 Transport Regulations).

19. The employer did not arrange work so that the claimant could take breaks as set out in para. 12.v herein.

The claimant was required to work more than the maximum permitted number of hours (under R.18 Transport Regulations)

20. The claimant was required to work more than 48 hours per week for the period 1 May 2019 to 1 September 2019 contrary to para. 12.i herein.

For the days the claimant worked, he started at 16.30 hours and finished at 06.30 hours each working day. For a period, he worked 5 days per week which amounts to approximately 70 hour work week. The claimant regularly worked more than 60 hours in a single working week.

The claimant did not receive a statement in writing on his terms of employment

21. The claimant did not receive a contract of employment or terms of employment while he was employed.

The claimant was not notified in writing of a change to his terms of employment

22. The terms of my employment changed from 3 days per week to 5 days per week in approximately September 2017 and thereafter to 4 days per week in approximately March 2018without any written notice of this change being furnished by the employer.

The employer did not keep statutory employment records

The employer did not provide the records to the claimant(both under R.18 Transport Regulations)

23.The employer did not keep records as per para. 12.vi herein.

The claimant was not notified of the working hours regulations applying to the road transport sector (under R.18 Transport Regulations)

24.Theemployer did not send a letter or include in any terms of employment or manual the obligations under the Transport Regulations.

Unfair dismissal on 13/1/20

23. The claimant was dismissed without reason. The dismissal was procedurally and substantively unfair

The following submission was furnished on behalf of the claimant on the 28. Sept.2021

I. On the days the claimant worked, he worked 16.30 to approx. 6.30 hours the following day. He did a round trip from Carrick on Shannon to Dublin, stopping off at various on the way and at various locations on the way back. There was work involved in his stop offs including unloading the van, loading the van and scanning the bags.

2.On 28/11/19 the claimant had a conversation with Mrs. C regarding his work hours. He said he was not happy Mr. Y’s wages were being paid through the claimant’s payslips. Mrs. C replied, “I'm sorry D but Mr. Y works for you not us”. The claimant had never met Mr. Y before he was introduced to him by the employer. The claimant said “I will have to consider my position if this situation is not resolved”. She said that “you will have to give us four weeks’ notice” and again stated that “Mr. Y works for you not us”. The claimant rang Mr. C to explain what was been said, and Mr. C said “I will sort it, Mrs. C is a bit stressed at the minute” The claimant said fine.

3.In reply to para. 4 of the employer’s submission, the claimant was not struggling with illness but his mother was ill and later died of cancer on 3/3/18.

4.The claimant did not insist working 5 days a week, as alleged.

5.The claimant was required to work on7/1/19. Mr. C asked the claimant to start the run for him and he would take over. The claimant collected the banks in Ballinamore and Drumshanbo then met Mr. C. Mr. C gave the claimant his car to go home and when he returned he put the van keys in the claimant’s door and left the van at his house and he drove his own car home. Mr. C missed some drops and asked the claimant to deliver the next day.

6.The claimant did not make threats against the respondents as alleged. The claimant calls on the employer to furnish evidence to corroborate the allegations.

7.See further correspondence relied upon at DC6. This also contains statement of earnings and P60s for various years showing average earnings of

a. 2017 – €21,210

b. 2018 – €21,972

c. 2019 – €32,970

d. 2020 – € 4,475

Loss of earnings under the UDA

8.See proof of efforts to get other employment since 13/1/20 at DC7.

e. The last full years earning was €32,970 per annum or €2,747 per month.

f. To date he would have earned 20 months equal to €54,950 if the employment continued. That does not take account of prospective loss.

g. Ignoring social welfare, as directed by s.7.2.f of the Unfair Dismissal Act, the claimant has in fact earned €4,475.00since 31/1/20.

The following submission was furnished on behalf of the complainant on the 4th.Feb. 2022:

1. The claimant relies on the statement of a former employee to corroborate his claim DC8. Mr. O will give this evidence to the WRC.

2. The claimant maintains that the dismissal occurred on 13/1/20 and the claims are within 6 months of termination.

The time issue

3. By reason of para. 13-15 of the second submission, the claim under the NMWA is within time.

4. In the alternative to 2 the claimant seeks an extension of time for reasonable cause. If the WRC find a resignation occurred on 28/11/19, the claimant was confused as to the date of dismissal as were his legal representatives. The employer added to the confusion by not making clear in writing until after the 6 months had passed, when the termination of employment occurred.

5. The respondent was requested to furnish his employee documentation and information in their possession under The GDPR and The Data Protection Act, 2018 by way of DSAR request of the claimant dated 16th September 2021, copy exhibited herein at DC9. To date, the respondent has failed to furnish any documentation or information.

Summary of Pertinent Evidence of the Complainant

Having sworn an oath, the claimant in his direct evidence set out a chronological account of his employment history with the respondent – he had not worked for the company prior to his commencement in Feb. 2017.He set out his driving route from the start of work at 4.30pm. to finishing time at 6.30.a.m. He was asked to talk about Mr. Y. The complainant said he was introduced to him by Mr. C who said that Mr. Y would not go through the books and would have to be paid from the complainant’s account. He said Mr. Y started in April 2017.He said Mr. Y was paid from his bank account and the complainant received a pay slip for the full amount. The witness said he was told about Mr. Y at a meeting in a local hotel in March 2017.

The witness said that on Thurs. 28th.Nov.2019, he raised the issue of Mr. Y – his pay was going down – Mr. Y was being paid from his account and he said that he told Mrs. C that if this continued he would have to consider his position. Mrs. C responded that Mr. Y works for you not for us .When asked if he resigned , the complainant said he informed her that if it was not resolved he would have to consider my position .Mrs. C advised the complainant by text that she was going to put an add up for the job and asked for a written copy of his notice so that she could put it in the work diary. She asked is the notice the 30th.Dec and the complainant replied “I work the 30th.Last day”. The witness said later that day he spoke with Mr. C and when he told him what happened during the call, Mr. C replied that Mrs. C is a bit stressed I will sort it out and the witness said he replied that’s fine. According to the witness “He and I were pretty clear I didn’t resign”. The witness said his reference to the 30th. being his last day at work was before his conversation with Mr. C. The witness said he never gave written notice of his resignation and that he did not resign. The claimant said the last day he worked was the 23rd.December when he incurred an injury at work. The witness said he was normally back at work the first week in January.

The claimant said he worked on the 7th.January following a call from Mr. C. The claimant contacted company A in Dublin about entering the premises with his injury and wearing a boot – he forwarded their email to Mr. C who asked him to start the run and the witness said he agreed to do that and drove the 12 km to Drumshambo. The witness confirmed that up to the 7thJan he had not handed back the van. He met Mr. C in Ballinamore who enquired how he was. Mr. C gave him his car to drive home and asked him to sort the picking of AIB bags which he sorted. The following day Mr. C returned and left the van outside his house. He used the company vehicle and did a drop in Carrick on Shannon which was 15mins away. The witness referenced a text from Mr. C on the 8th.Jan saying he wouldn’t be covered in the van until he was 100% fit. The text went on to say “If you can get DX and ourselves a letter from your Doctor stating you’d be ok to work with your fractured foot, no problem”.

On the 13th.Jan , the witness got a call from Mr. C – saying that he and Mrs. C were going to let him go and that they had no more work for him. The complainant said in his conversation with Mr. C the previous week he told him it would be sorted. The complainant said he was in shock – he understood from Mr. C that his 3 days per week were safe. The witness said he texted Mr. C to say he needed a letter for Social Welfare as he had not been paid since his injury. The witness said he was never paid for working on the 7th.& 8th.January.

Under cross examination the witness was referred to a text from Mrs. C at 9.37 on the 28th.Nov.2019 asking if he was for Dublin – he responded “ yes no one else to do it”.It was put to him that in the meantime he rang Mrs. C saying he wanted to give up work , that the late hours did not suit him his wife or children – the witness replied not true. It was put to the witness that he told Mrs. C that he had a drink problem and was getting treatment. The respondent’s representative said it was on record that he was charged with drink driving on the 17th.June 2019 and disqualified from driving for 3 years from Sept. 2021.The witness replied he no longer worked for the respondent at that time. It was put to the witness that he was caught drink driving while employed on the 19th.June 2019.It was put to the witness that there were 2 provisions in his contract requiring him to disclose this information to his employer. It was put to the witness that he refused to submit written notice to Mrs. C . The witness denied giving any notice to Mrs. C. The witness was asked to explain “ I work the 30thlast day”. The witness replied it would have been sent in the heat of the moment. The witness said it wasn’t his last day as he had worked the 7th./8th.January.The witness was asked was it his intention to cease work on the 30th.Dec. – he replied No. The witness was asked why he did not reply to Mrs. C’s request for written notice on the 17th.December clarifying that he had worked it out with Mr. C . The witness was asked was he being advised, and he replied he was being advised by a friend. It was put to him that he did not think to tell Mrs. C that the matter had been sorted directly with Mr. C

It was put to the claimant that it was not permissible for him to drive with a boot – he replied that he had tried to establish from company A if he could access the warehouse .The complainant confirmed he did not work on the 31st.December or the 1st.January.He said he worked on the 6th.and 7th.Jan 2020.The complainant said he delivered a package that had been left in the van to Company B.It was put to the complainant that there was nothing in the records to indicate that he was asked to deliver to Company B. The complainant was asked if he recalled ringing Mr. C afterwards leaving a threatening message on his answering machine. He was asked if he hijacked a van or if he was interviewed by the Gardaí and he replied No. The complainant said he never threatened to burn the house – he questioned why this was not referred to the Gardaí. The complainant said he did not offer to resign – he was very unhappy. He alleged Mrs. C said “ I am not dealing with you – Mr. C can deal with you”. The complainant said she said this in a conversation, he said it did get heated – he said he never mentioned resignation.

The claimant denied receiving a contract of employment at a hotel or anywhere else. He described his working pattern from 4.30p.m. – 6.30am.; some weeks he worked 3days a week, some weeks 4 days and a lot of time 5 days a week. The complainant said Mr. Y was brought in as a relief driver. The witness said Mrs. C asked him if he could recruit another driver – he said the respondents did not want Mr. Y driving as he was not on the books. The complainant said Mr. Y’s payments were going into his account and he paid him €150 in cash. If there was no cover the complainant said he would work 5 days per week. The complainant described his accident while at work on the 23rd.Dec. 2019. He phoned Mr. C and Mr.TK. He attended hospital in Roscommon and wore a protective boot for 6 weeks. The witness said he worked on the 6th.and 7th.Jan 2020.The respondent had no cover and the complainant started the run, collected the banks in Ballinamore and Drumshambo and then Mr. C took over.

The witness was unaware if his working hours were being recorded. The witness said if he stopped to take a break he would arrive late to Ballsbridge. The witness described parking the van up and getting 3 banks done at the one time – if records showed the vehicle was stopped it would be because he was loading. The witness said he was not issued with correspondence about breaks. The complainant said he would eat in the van if he bought lunch - sometimes he would buy food en route. The complainant said he was never given outstanding holidays when his employment was terminated; he did not receive notice and he was working 4.30p.m.-6.30am 5 days per week. The complainant denied he ever received a handbook from the respondent.

The claimant’s representative stated that the information furnished under the National Minimum Wage Act was inadequate and insufficient. The confusion was compounded with the inclusion of payment for Mr. Y. It was advanced that the complainant was working a 14hour shift; that there were variables at play and it was a matter for the respondent to show demonstrate compliance with the Act.

It was put to the complainant that he was 3 times over the limit for drink driving on the 17th.June 2019.He was asked if he told his employers and responded “I was never told I would have to tell them”. It was put to the complainant that he did not work on the 6th or 7th.Jan and the complainant replied I was working. It was put to him that he volunteered to make 2 calls in Ballinamore – the complainant replied he was working and why did M.C pick up the van from his house. The complainant said he also delivered parts that day. The complainant was asked if he still pursuing a personal injury claim with respect to the injury incurred on the 23rd.December 2019.The claimant replied that he did not know – he had not instructed counsel. It was clarified that a claim for loss of earnings under the personal injury was not being pursued. It was put to him that the Personal Injury was set out in a letter to the respondents on the 23rd.April 2020 before the WRC complaint was filed. The complainant responded that he could not answer that. He had spoken to his representative in January and instructed him to lodge the Unfair Dismissal complaint. The complainant did not respond when he was asked why he waited until the 7th.July to lodge the WRC complaint. The complainant was unsure of the date of disqualification from driving arising from the drink driving charge – it was put to him that he delayed in making the complaint as the drink driving charge was coming at him. This was denied by the complainant. It was put to the complainant that he would be denied Social Welfare Benefits because of the personal injuries complaint. The claimant said this was untrue.

The complainant said that after he was fired on the 13th.January he asked the respondent for a letter saying he was not paid because he was injured. The complainant said he was offered no explanation for being let go and no notice of termination was given. The complainant referred to a text from Mr. C indicating that the only thing that was stopping the complainant from working was his injury. The complainant was asked if he told his solicitor that he had no work as per the complaint form – the witness replied not in those words no.

The witness was referred to a To Whom It May Concern letter from Mrs. C where she advised that the complainant gave notice of his intention to leave his job and finish up on the 30th.Dec. 2019 and that he had not carried out work for the company since Dec. 24th. 2019.It was put to the complainant that he told the tribunal he got another letter which he passed on to the DSP.A copy of the letter was submitted into evidence at the final hearing. The document was a copy of Mrs. C’s email amended as follows:” DC has not carried out any work for Overnight Delivery Ltd. Since Dec. 24th.2019 or received any payments from us. If you require any further information, please feel free to contact me.”. It was put to the complainant that he never had a problem with Mr. C – he said he had a problem with Mrs. C. The complainant said that he had amended Mrs. C’s letter for Social Welfare and submitted his amended version to the DSP in Mrs. C’s name. It was put to the complainant that he had forged Mrs. C’s email to a shortened version.

It was put to the claimant that he took the email from Mrs. C and altered it – that it was a forgery. The complainant responded that he had changed Mrs. C’s email as what he had sought on several occasions was not given to him. He said the DSP were looking for confirmation that he was out of work – the witness he said he amended the email where Mrs. C had said he resigned. He was asked if this was correct and the complainant replied it was correct and all that was needed was for them to contact Mrs. C. The witness said the last day he worked before Christmas was the 23rdDec. He set out his contacts with company representatives to establish if he was insured given his accident and it was clarified that he was not covered. He said he told Mr. C he was not insured when he contacted him in January and Mr. C asked him to start the run in Ballinamore.

The complainant said he never had a problem with Mr. C. He had with Mrs. C – she took a dislike to him. He was asked if he sent the altered email to the DSP and he replied yes. He said he took out what was wrong in the email and sent it on the 14/15th.January.He told his solicitor he was sacked. It was put to the claimant that he never told Mr. C that he had been disqualified from driving and that he could not have driven. It was put to the complainant that he knew the disqualification was coming down the line and that that was why he resigned.

It was put to the witness that he followed the company van on the 19th.January 2020.He was asked if he was interviewed by the guards about it and he responded “First I heard of it”.

The witness was cross examined in detail about his efforts to mitigate his loss. It was put to him that he was in receipt of illness benefit from the 29th.Jan-3rd.Feb. 2020 when he claimed to have been seeking work. It was submitted that the complainant had failed to submit convincing evidence of seeking work and that there was no proof that the complainant applied for work to the employers listed in his second submission. The complainant replied that his application was done online and that he had been interviewed for Connect Recruitment. He was asked if the company had enquired about a driving licence and the complainant responded No. It was put to the complainant that no applications were made from the 6th.Feb.-13th.Aug and that he did nothing for the next 6 months. The witness replied his father was ill and had since died. He said he was not a full time carer. I t was put to the witness that he failed to explain why he did not apply for work between Aug & October The complainant said he was not currently working , that he could not drive and that he had not appealed his disqualification from driving. He is currently on Job Seekers allowance.

It was put to the complainant that he said he knew nothing about the tracking device even though he helped the respondent install it – the complainant said this was not true.

The complainant asserted that it was impossible to complete the run within the time frame set out by the respondent of 5.p.m.-5.30a.m. and advanced that Mr. C knew this.

The complainant could not recall when he sought legal advice. The complainant said he gave the matter of making a complaint to the WRC a lot of thought. The complainant said he was aggrieved with the arrangement whereby Mr. Y was paid through his account. He said the hours were crazy and there was a lot going on with his parents. He could not recall when he sought legal advice. He said he was getting creased with tax. All of the money was going into his account – showing that he was working for 5 days when he wasn’t.

The complainant denied that he was furnished with a contract of employment and questioned Mrs. C’s statement that she posted it out.

Summary of Respondent’s Case:

The respondent submitted as follows to the WRC on the 7th.Dec. 2020.

The Complainant has made a number of complaints against the Respondent which will be dealt with in the manner set out in your letter of the 23'd September, 2020 as follows:

CA - 00038573-001

The Complainant alleges that he did not receive the Weekly National Minimum Rate of Pay 'l'he Complainant did receive his Weekly National Minimum Rate of Pay and this is clearly evidenced in his Payslips. This Complaint is statute barred because the Complainant resigned on the 28th November. 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-004

The Complainant alleges that he did not receive his paid holiday/annual leave entitlement. The Complainant did receive his paid holiday/annual leave entitlement and his work records will clearly show same 'l'his Complaint is statute barred because the Complainant resigned on the 28th. November, 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-005

The Complainant alleges that he did not receive the appropriate payment in lieu of notice of termination of his employment. The Complainant resigned on the 28th November, 2019 and was not therefore entitled to notice of termination of his employment. This Complaint is statute barred because the Complainant resigned on the 28th.November 2019 and his Complaint in this regard was not received until the 7th.July, 2020.

CA - 00038573-007

The Complainant alleges that he did not get a daily rest period. The Complainant was given all appropriate rest periods and took all appropriate rest periods when required. 'l'his Complaint is statute barred because the Complainant resigned on the 28th November. 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-010 The Complainant alleges that he did not receive his paid holiday/annual leave entitlement. The Complainant did receive his paid holiday/annual leave entitlement and his work records will clearly show same. This Complaint is statute barred because the Complainant resigned on the 28th November, 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-011 The Complainant alleges that he did not receive a statement in writing of the terms of his employment. The Complainant did receive a statement in writing of the terms of his employment at the commencement of his employment. Same was posted to him. He did not sign and return same to the Respondent. '['his Complaint is statute barred because the Complainant resigned on the 28th November, 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-012 The Complainant alleges that he was not notified in writing of the change to the terms of his employment. The Complainant has not specified what the alleged changes to the terms of his employment were. The Respondent is not aware of any changes to the terms of the Complainant's employment. This Complaint is statute barred because the Complainant resigned on the 28th November. 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-013 The Complainant alleges that the Respondent was not keeping statutory employment records The Respondent was keeping statutory employment records. This will be confirmed by the Inspector for the Workplace Relations Commission. This Complaint is statute barred because the Complainant resigned on the 28th November, 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038s73-016 The Complainant alleges that he did not receive a statement of his core terms in writing under the Terms of Employment (lnformation) Act, 1994. The Complainant did receive a statement of his core terms in writing under the Terms of Employment (Information) Act, 1994. -This Complaint is statute barred because the Complainant resigned on the 28th November, 2019 and his Complaint in this regard was not received until the 7th July, 2020.

CA - 00038573-017 The Complainant alleges that he was unfairly dismissed and that he had at least 12 months service. The Respondent denies that the Complainant was dismissed Indeed, the Complainant resigned from his employment with the Respondent on the 28th November,2019. This Complaint is statute barred because the Complainant resigned on the 28th November, 2019 and his Complaint in this regard was not received until the 7th.July, 2020

Further submissions were received from the respondent’s representative on the 12th.July 2021 and are summarised below:

1 The Complainant’s employment with the Respondent Company commenced on the 31st January, 2000.

The Complainant was handed a Contract of Employment in a Hotel, Carrick on Shannon, County Leitrim, on the 19th November, 2017.

On Thursday, the 28th November, 2019 the Complainant telephoned Mrs. C and told her that he was resigning from his employment with the Company because of the night work. He said he was unable to carry on with the night work due to the situation with his children and with his ex-wife. He told her that he was stopping work completely as and from the 30th December, 2019.

Mrs. C sent the Complainant a text thanking him for his phone call, telling him that she was going to put up an ad for his job now. She asked him to forward her a written copy of his Notice. She specifically asked “is the Notice the 30th of December ??”

The Complainant responded “I work the 30th last day”.

The Complainant responded by asking for all of his pay slips and a copy of the Contract of Employment.

Mrs. C responded by saying “no problem at all”. She asked him to send her a copy of his Notice in writing as she still hadn’t received it.

The Complainant responded by saying that he needed the pay slips and Contract before he would give anything, as advised.

See copy Texts attached hereto.

The Complainant received his last payment from the Company on the 3rd January, 2020.

The Complainant’s Claim was not made until the 7th July, 2020.

The Complainant’s Claim is therefore Statute Barred.

2. Mrs. C is the Managing Director of Overnight Delivery Limited. Mr. C is employed as Road Manager and Driver. The company has 9 employees.

3. The Complainant’s employment started on a daily basis at the first pick up point which was at the Bank of Ireland in Drumshambo at 5.00 p.m. each evening.

The Complainant’s finishing time was at 5.30 a.m. the following morning. The Complainant would have worked for 12.5 hours each day.

The Complainant was obliged as per the Employee Handbook to take the appropriate breaks.

The Complainant was obliged to take a 15 minute break in Mullingar at 7.40 p.m.

The Complainant was obliged to take a 2 hour + break at Allied Irish Banks, Ballsbridge, from 9.50 p.m. to 12.00 a.m.

Furthermore, the Complainant was obliged to take a 15 minute break in Longford at 4.00 a.m.

The Complainant was paid the sum of €420. 00c (gross) for the 3 days of his weekly employment.

4. 4. From September, 2017 until November, 2017 the Complainant worked 3 days per week, sharing with the work with another driver, Mr. Y.

From the 1st December, 2017 until 26th January, 2018 the Complainant didn’t work at all. He was off work due to health issues.

The Complainant worked a total of 8 days between the 26th January, 2018 and the 16th March, 2018.

The Complainant was off work again from the 16th March, 2018 until the 18th June, 2018.

The Complainant told the Respondent that he was struggling with illness.

The Respondent kept his job open for him.

The Respondent regularly checked with the Complainant to monitor his progress.

5. 5. Mr. Y never worked as a full-time employee for Overnight Delivery Limited.

Mr. Y was a driver who had worked for the previous contractor before Overnight Delivery Limited took over the route.

Mr. Y showed Mr. C the route in early 2016. He was offered a job. However, Mr. Y was a self-employed Farmer who did not need or require full-time employment.

There was no meeting in March, 2018 in the Hotel.

There was a meeting in Carrick on Shannon in June, 2018 following the departure of Mr. Y.

Mr. K left his employment with Overnight Delivery Limited in September, 2017.

The Complainant came back to full-time employment on the 18th June, 2018.

The Complainant insisted on working 5 days a week.

The Respondent told him that this was too much.

They told him to contact Mr. Y if he needed help, particularly if Mr. C was unavailable to cover.

Mr. Y left his employment with Overnight Delivery Limited a full 18 months prior to the date the Complainant outlines.

Another driver, worked for Overnight Delivery Limited from July, 2019 to September, 2019

6 6. The Complainant reported the alleged accident to Mr. C by text on the 24th December, 2019. He did not report the incident to Mr. C by telephone nor did he report the incident to, the Night Manager of DX.

A period of 15 hours had elapsed between the time of the alleged accident and the reporting of same.

The alleged accident was reported 6 hours after the Complainant had finished working on the day of the alleged accident.

The Respondent requested a doctor’s certificate but the Complainant did not furnish same.

7 7. As previously stated, the Complainant telephoned Mrs. C on Thursday, 28th November, 2019 and told her that he was quitting his job for the reasons stated. He told her that his last day of working would be the 30th December, 2019.

The Complainant did not inform anyone that he was happy to help out until a new driver was trained in.

The Complainant was not requested to work on the 7th January, 2020. He was requested to return the keys of the van on the 7th January, 2020. He was not asked to return to work.

Mr. C arranged to meet the Complainant in Ballinamore, County Leitrim. The Complainant gave Mr. C the work van.

Mr. C gave the Complainant his own car to drive home.

Mr. C car was picked up from the Complainant’s home the following day, the 8th January, 2020.

8 8. On the 13th January, 2020 Mr. C telephoned the Complainant. He told him that his replacement had been put in place.

The Complainant’s employment with the Respondent had terminated on the 30th December, 2019.

Mr. C thanked the Complainant for his service to the Respondent Company.

9 9. The Respondent Company made its last payment to the Complainant on the 3rd January, 2020. It was for the St. Stephens Day Holiday. It was in the sum of

€140. 00 gross.

1 10. On the 24th March, 2020 the Respondent received a letter from the Complainant’s Solicitor seeking details of the Complainant’s employment.

Both Mr & Mrs .C found this offensive, particularly as the Complainant had, in the meantime, threatened violence against Mr. C He threatened to burn down their family home in County Donegal.

Furthermore, due to the actions of the Complainant, the company had to immediately abandon the route in County Leitrim and to withdraw completely from the County.

1 11. Overnight Delivery Limited was fully audited by the Workplace Relations Commission in December 2020 in relation to their employment records, procedures etc.

The Workplace Relations Commission was satisfied that Overnight Delivery Limited were operating within the law.

1 12. Overnight Delivery Limited was fully audited by the Workplace Relations Commission in December 2020 in relation to their employment records, procedures etc.

The Workplace Relations Commission was satisfied that Overnight Delivery Limited were operating within the law.

1 13. The complainant received €11. 20c. per hour if breaks were included.

The complainant received €14. 00 per hour if breaks were not included.

1 14. Overnight Delivery Limited was fully audited by the Workplace Relations Commission in December, 2020 in relation to their employment records, procedures etc.

The Workplace Relations Commission were satisfied that Overnight Delivery Limited were operating within the law.

1 15. This Claim is Statute Barred because same should have been brought within 6 months from the 30th December, 2019.

16. The Complainant was paid 20 days holiday pay in 2019 which is in excess of his entitlement.

1 17. The Complainant was not entitled to 2 weeks’ notice of termination as he gave in his Notice of Resignation on Thursday, 28th November, 2019 and confirmed, by text, that his last day of work was to be the 30th December, 2019.

1 18. The Complainant finished working at 5.30 a.m. and did not start working again until 5.00 p.m. later that day. The Complainant, therefore, had 11.5 consecutive hours rest in every 24-hour period.

1 19. The Complainant had 2 x 15-minute breaks and a full 2 hour break each night.

2 20. The period outlined from the 1st May, 2019 to the 1st September, 2019 is an 18 week period.

The Complainant worked 70 days in that period.

The working day, excluding breaks, is 10 hours per day.

Therefore, the Complainant worked 700 hours in 18 weeks.

The Complainant therefore worked on average 38.8 per week.

2 21.The Complainant did receive a Contract and Terms of Employment, like every other employee, together with an Employee Handbook.

2 22. The Complainant’s working hours did not change during the period outlined. In fact, as previously stated, the Complainant did not work at all for a large portion of the dates specified.

2 23. Overnight Delivery Limited was fully audited by the Workplace Relations Commission in December, 2020 in relation to their employment records, procedures etc.

The Workplace Relations Commission was satisfied that Overnight Delivery Limited were operating within the law.

24. The Complainant was furnished with the DX Courier Handbook which clearly sets out the obligations under the Transport Regulations.

2 25. The Complainant was not dismissed without reason. The Complainant was not dismissed at all.

As previously stated, the Complainant notified Mrs. C by telephone on Thursday, the 28th November, 2019 that he was terminating his employment with the Company and he informed her that his last day of work would be the 30th December, 2019.

I In a final written submission to the WRC received on the 8th.March 2023 the respondent’s representative furnished the following documentation:

C Copies of correspondence between the complainant and Mrs. C and the complainant and the DSP regarding his application for Social Welfare payments;

A copy of the written statement of terms and conditions of employment dated the 1st.Jan. 2018 which the employer submitted was furnished to the complainant who did not respond:

A copy of the respondent’s employee Handbook ;

A copy of the DX Courier Handbook.

The respondent’s representative asserted that the complainant produced no evidence to support the contention that the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Road Transport Activities ) Regulations, 2012 applied to the respondent’s vehicles.

T The respondent furnished a list of the holidays paid by the respondent to the complainant in 2019 and asserted that this was 3 days more than he was entitled to .

It was submitted that the other allegations made by the complainant had been investigated by the Inspectorate of the WRC and that the inspector had no issue with them.

Summary of pertinent evidence of Mrs. C

Mrs. C gave her recollection of her discussions with the complainant on the 28th.Nov. 2029.She said the complainant phoned her and said he was not fit to carry on in the job – he could not do nights anymore. She said she felt sorry for him. He apologised for letting the company down on a number of occasions and he needed help with his drink problem. She stated the exchanges were definitely not heated and she told the complainant that she would require 4 weeks’ notice and he said he would. The witness said he thanked her and said he would help out whenever he could. The witness confirmed that the complainant never gave ger notice of his resignation. The witness proceeded to advertise the job in the Leitrim Jobs facebook page. The witness referred to receiving incessant phone calls. The witness said the complainant threatened that he would come to Letterkenny to get whatever he was owed. The witness referred this to the Gardaí in Milford. The witness confirmed that the complainant’s resignation was never withdrawn. The witness gave evidence of having recorded in the office diary on the 28th.Nov.2019 that “Darren handed in Notice – will forward notice in writing”. She advised that when she made that note she contacted a lady on facebook regarding Leitrim Jobs. The witness confirmed that the complainant never forwarded notice in writing – she wanted it for clarity. S he confirmed she did not get clarity.

Under cross examination, Mrs. C that the role of Mr. Y was not discussed in her conversation with the complainant. She said Mr. Y was used only as an emergency – he was paid in cash for any nights worked – not through the claimant’s payroll. The witness said she did not know if the witness paid Mr. Y. The witness confirmed she did not get written notice from the complainant on the 28th.November 2019 or the 17th.December 2019.It was suggested to the witness that she must have had some doubts and she was asked why she had sought a doctors cert - she replied that she needed to know when would be his last day. The witness said she did not accept that the complainant had a discussion with Mr. C . She said she spoke to her husband and told him that the complainant had resigned. The witness said she had no recollection of the complainant and her husband speaking that day. The witness said she was relaying to her husband the replies she had received to the job advertisement. Her husband was the company secretary and she was the Director. The witness was asked if she had issues with the complainant when he resigned, she replied that she could never fully rely upon him – when he resigned she gladly took it. It was put to the witness that she wanted written clarity about the notice and didn’t receive it. The witness was asked if she knew the complainant worked for the company on the 6th.& 7th.Jan – she replied she did not know .When asked why the complainant kept the van for so long – the witness replied his last day working for them was the 23rd.December .The witness was asked if she disputed that the complainant worked beyond the 30th.Dec. 2019 – she replied “I do”.

The witness was referred to Mr. C’s text of the 8th.January 2020 in which Mr. C did not say the employment had ended ….” If you can get DX and ourselves a letter from your Doctor stating you’d be ok to work with your fractured foot, no problem.” The witness said she had requested confirmation of the resignation and the complainant had replied that he would work to the 30th. And that would be his last day. He replied requesting payslips and contracts. It was put to the witness that she had wanted the resignation in writing and never got it. The complainant’s last pay date was the 3rd.January when he was paid for Boxing Day.

Summary of Pertinent Evidence of Mr. C

The witness set out the backdrop to the recruitment of the complainant when he first approached him .The witness said when his wife told him that the complainant was leaving , he replied that’s his decision – the witness said drivers come and go. The witness said he had a conversation with the complainant the following day and said to him I hear you are leaving – the complainant indicated he had enough of nights and he had problems with his wife. The witness confirmed the complainant did not retract his resignation. They had a night out /farewell do planned for the 18th.December but it did not proceed. The witness said the complainant last worked on the 23rd.December. The witness said the complainant had said don’t be stuck – even when I am left. He called on the 6th.January – the witness said the complainant offered to meet him in Ballinamore with the van. The witness said the complainant offered – he was not asked. The witness said he considered it a favour. The witness said the complainant asked for a letter after the 13th.January – he was looking for sick pay and he had not been paid by the company. The witness said things took a dark turn – the complainant was constantly ringing – according to the witness the complainant threatened to burn his house down – the outcome was that the witness gave up the business in the County of Leitrim. The witness was asked if he had led the complainant to believe that he was working beyond the 30th.Dec. 2020 – he replied No.

The witness confirmed the complainant was paid €140 per night. He said he was paid in accordance with minimum wage legislation. The witness described Mr. Y as a self-employed farmer who showed him the route when he took over the company. He said Mr. Y was not employed. He drove when the complainant needed time off. The witness said that when the complainant returned to work after an absence he said he wanted to work 5 days per week. He replied that he said we would cost it and Mr. Y would cover on an emergency basis. The complainant received €700 per week for 5 days work – 10 hours per night. The witness said it was common practise to work 5 X nights a week – 50 hours a week. He was asked if the complainant agreed with the arrangement, the witness replied we all knew how Mr. Y was paid. If the complainant needed cover, the witness would cover and Mr. Y would cover if he – the witness was unavailable. The witness was asked if the complainant ever complained about Mr. Y – he replied “not that I remember”. The witness said that if Mr. Y covered for a day, they would pay him by check.

U Under cross examination the witness was asked if there was a file note or record of the discussion with his wife about the departure of the complainant – he replied that he kept a diary for key events, phone calls and texts. The witness undertook to furnish the diary to the WRC. The witness was questioned about the complainant’s version of the references to Mrs. C . The witness said he would not have used the term stressed out about Mrs. C. The witness said he did not have a conversation with the complainant after the 28th.November. The witness referred to the complainant saying I’ll still be about – don’t be stuck. The witness referred to an earlier occasion when the complainant took 3 months off – he was having problems with his wife and battling drink. They kept the job open for him.

T The witness was asked if he accepted the complainant was asked for written notice. No written notice was submitted. The witness was asked if the employment was ended why was the van at the complainant’s home and why no wrap up letter was issued. The witness replied the van was there because they had no premises in Leitrim – the van would have been in use at that time during those days up to the end of December. The witness was questioned why no wrap up letter was issued.

T The witness said he rang the complainant and he said he would help him out. He referred to the complainant’s injury. The witness said the complainant was still in touch – whatever he had lined up had fallen through. It was put to the witness that he did not accept that the complainant worked – the witness replied the complainant offered to take the van to meet him – the witness said he obliged me and he would not call that work. The witness was referred to the text references to Health & Safety insurance and the following reference in the text of the 8th.Jan. 2020 “If you can get DX and ourselves a letter from your doctor stating you’d be ok to work with your fractured foot, no problem. “The witness responded we were between jobs – someone was prepared to help. It was put to the witness that the text showed that the only reason the complainant was not working because of injury.

On the final hearing date, Mr. C confirmed in his direct evidence that the complainant was paid €140 a night and that he was paid in accordance with the National Minimum Wage Act, 2000 as confirmed by the WRC Inspector. The witness described Mr. Y as a self-employed farmer who showed him the routes when he took over the company. Under cross examination the witness said that he knew Mr. Y personally, that the complainant had been off work in the period Dec. 2017 – June 2018 and that when the complainant returned he wanted to work 5 days a week. The witness said it was agreed with the claimant that Mr. Y would provide cover on an emergency basis. The witness said that at his request the claimant wanted to work 5 days a week, 10 hours per night. The witness said that on an emergency basis, Mr. Y worked for him. The witness said the complainant had Mr. Y’s number and that if he – the witness – could not cover for the claimant , Mr. Y would cover. The witness was asked if the complainant ever complained about this arrangement, and he replied not that I remember. The witness said that they – the respondent company - would have paid Mr. Y by check if the complainant was unavailable – and the complainant would not be paid for that day.

Findings and Conclusions:

Preliminary Matter of Jurisdiction:

The respondent asserted that the complaints are out of time on the basis that the complaints were not received by the WRC until the 7th.July 2020 and the employment had ended on the 30th.Dec. 2019.

The claimant contends that his employment was terminated by the respondent on the 13th.January 2020 when he was informed by phone that there was no more work for him. The claimant asserted that this was the date of dismissal and that consequently his complaints which were received by the WRC on the 7th.July 2020 were in time. It was submitted that the claimant was requested to work by Mr. C on the 7th.Jan 2020 and that he was requested to start the run – Mr. C met him in Ballinamore and took over the van run – giving the claimant the respondent’s car to drive home. It was submitted that it had been accepted by the respondent that the complainant had worked up to and including the 8th.January 2020. It was submitted that the claimant’s version of events was supported by the text message put into evidence from Mr. C to the complainant which stated :

“Darren, You wouldn’t be covered in the van until you are 100% fit. You know yourself what health and safety and insurance is like. You told me you had a fracture in your foot and you’d be looking at a further 4 weeks off. If you can get DX and ourselves a letter from your Doctor stating you’d be ok to work with your fractured foot, no problem”.

It was submitted that a conversation with Mr. C which was subsequent to his exchange with Mrs. C on the 28th.Nov. 2019 put to bed any option of the complainant having left the employment. It was submitted that the claimant’s employment ended on the 13th.January and accordingly was in time. It was submitted that the complainant had on a number of occasions given evidence of his interactions with his employers about disputes linked to the manner of payment to his accounts and that these allegations were not refuted by the respondent.

It was submitted that in the alternative, the claimant was seeking an extension of time for reasonable cause. It was advanced that if the WRC found that a resignation occurred on the 28.11.2019, that the complainant was confused as to the date of dismissal as were his legal representatives. It was submitted that the employer added to the confusion by not making it clear in writing until after the 6 months had passed, when the termination of employment occurred.

It was submitted that the respondent’s representative was muddying the waters. It was disputed that the respondent’s representative was unaware until the 7th.July 2020 about possible proceedings – where information regarding terms and conditions of employment had been sought and by way of separate proceedings a PIAB claim was indicated. The documents sent by the complainant’s representative and introduced into evidence were dated the 23rd. April 2020.It was asserted that the claimant’s side were left in a vacuum with no contracts, payslips or records produced.

The respondent asserted that their position remained the same to that documented in their initial response to the complaints to the WRC. It was submitted that in a telephone call to Mrs. C on the 28th.Nov. the complainant gave notice and this was confirmed later that day in a text from Mrs. C to the complainant where she stated

“Hi Darren, thanks for the call. I’m going to put up an add for the job now. Will you forward me a written copy of your notice please Just so I can put it in the work diary. I’ll get onto our accountant to sort your P60.Is the notice the 30th.December ??”

and the complainant replied “I work the 30th.last day.”

It was submitted that the respondent’s representative had received two letters from the claimant’s representative on the 23rd.April 2020 – one seeking information on the claimant’s conditions of employment and the second letter referencing a complaint to PIAB. It was contended that from November 2019 to January 2020 the complainant had been consulting with his solicitor on these matters but the complaint to the WRC was not lodged until the 7th.July 2020. It was submitted that the complaint should have been submitted by the 29th.May 2020.It was contended that no explanation had been offered for this delay. It was submitted that the respondent’s position was clear from Mrs. C’s text to the complainant stating that she was going to put an ad for “the job now”. It was submitted that the claimant’s reliance on a witness Mr. O to support his version of events did not happen.

It was submitted that the submission regarding reasonable cause was ridiculous. It was contended that this was either a resignation or not and if it was found that a resignation occurred that was the end of the matter. It was advanced that the respondent did not get the complaints until after 6 months. It was submitted that no reasonable cause was submitted for the delay in lodging the complaint until the 7th.July and that the complainant went off on a tangent.

The following text messages dated the 17th.Dec. 2019 were also submitted into evidence:

Complainant to Mrs. C

“can you send all pay slips I haven’t received when you get a chance at some point and copy of contract of employment. Thank you”

Mrs. C’s reply to the complainant

“No problem at all. Can you send me a copy of your notice in writing please. I still haven’t received it. How was Manchester at the weekend. Did the kids enjoy the trip?”

Reply from complainant to Mrs. C

“I need pay slips and contract before I gave anything as advised. Manchester was good kids didn’t go game was changed for tv wouldn’t be back for School so mammy said it’s a no no.”

The complainant’s representative asserted that it had been accepted by the respondent Mr. C under cross examination that the complainant had worked up to and including the 7th.January 2020; he referenced the text message from Mr. C of the 8th.January which he argued supported the claimant’s contention that he was still an employee. It was reiterated that the later conversation with Mr. C put to bed any question of him having left the employment.

The respondent’s representative asserted that the complaints were statute barred and he relied upon the claimant’s text to Mrs. C of the 28th.Nov. 2019 wherein he replied to her query on notice “ I work the 30th. last day”.

I have reviewed the evidence presented at the hearing and noted the submissions on the matter of time limits. The EAT has made a number of decisions on circumstances where an employee resigns but later communicates to his employer that he wishes to withdraw his resignation. According to Redmond “Dismissal Law in Ireland “ 21.28 “ if an employee tries to withdraw a notice of resignation , an employer should ask itself whether special circumstances exist .If so , they may cast doubt on whether the resignation was really intended .The employer should investigate the facts , to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts – Kwik-Fit (GB)Ltd v Linehan [1992]IRLR 156(EAT)”.

Having considered the polarised positions of the claimant and Mr. C on what if any exchanges took place between them about the complainant’s future employment – at some point post the discussion between the complainant and Mrs. C on the 28th.Nov. 2019 - I must conclude on the basis of the text message of the 8th.January 2020 from Mr. C to the complainant that both of them were under the impression that the complainant was still an employee .This text undermines the credibility of Mr. C’s denials of the complainant’s contention that the matter had been resolved between the 2 of them. While I accept there were inconsistencies both in the complainant’s evidence and that of Mr. C particularly with respect to when this exchange took place between them on the complainant continuing in his employment and that the complainant failed to offer a plausible explanation for failing to clarify his position when Mrs. C sought written notice on he 17th.Dec. 2019 , I find that the text message of the 8th.Jan. 2020 from Mr. C to the complainant is fatal to the respondent’s case and must conclude on the balance of probability that some agreement was reached between the complainant and Mr. C about the claimant’s continuing in employment. Why else would Mr. C have not written to the claimant advising that he had resigned on the 30th.Dec. rather than suggesting that there would be no problem if he could get certification from the doctor confirming that it was ok to work with a fractured foot. I am satisfied that the text of the 8th.Jan.2020 from Mr. C to the complainant could reasonably be characterised as an exchange between an employer and an employee.

Accordingly, I find that the claimant’s assertion that the termination of employment took place on the 13th.January 2020 to be more credible than the version of events advanced by Mr. C. Consequently, I am satisfied that the complaints set out by the complainant – with the exception of complaint CA-00038573-001 which refers to failure to notify the complainant of a change to his terms of employment in March 2018 and is consequently out of time - are in time and that I have jurisdiction to investigate them.

Complaint under the National Minimum Wage Act – CA-00038573-001

The complainant contended that he did not receive the National Minimum Rate of Pay.

Preliminary Matter of Jurisdiction.

Section 24 of the Act specifies as follows

Hearing of Disputes
	Disputes about entitlement to minimum hourly rate of pay.	24.—(1) Without prejudice to any other action that might be brought against an employer under this Act or otherwise, but subject to subsection (2), if an employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged under-payment to the employee, the employee or the employer, or the representative of either of them with their respective consent, may, by notice in writing containing such particulars, if any, as may be prescribed, refer the dispute to a rights commissioner for the rights commissioner's decision.
		(2) A dispute cannot be referred to or dealt with by a rights commissioner—
		(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,
		and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
		or
		(b) where, in respect of the same alleged under-payment, the employer is or has been—
		(i) the subject of investigation by an inspector under section 33 or 34 , or
		(ii) prosecuted for an offence under section 35 .
		(3) As soon as practicable after a dispute is referred to him or her, the rights commissioner shall give to the other party to the dispute a copy of the notice of referral.
		(4) An inspector shall advise a rights commissioner, on request by the rights commissioner, as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.
		(5) A rights commissioner shall hear the parties to a dispute and any evidence relevant to the dispute offered by them, and otherwise inform himself or herself about the dispute in such manner as prescribed or, if no manner is prescribed, then as the rights commissioner thinks appropriate.
		(6) The Minister may, by regulation, prescribe such matters relating to proceedings of the rights commissioner under this section as the Minister thinks appropriate.
		(7) The hearing of a dispute shall not be open to the public.

As it is not disputed that the business was the subject of investigation by Inspector Agnieszka Lugowska in January 2021 , I have no jurisdiction to investigate this element of the complaint in accordance with Subsection 2 (b) (i) of Section 24.

Complaint under Section 27 of The Organisation of Working Time Act CA-00038573-004

Duplicate complaint CA-00038573-010

The complainant asserted that the respondent was in breach of the Act for failing to pay him his annual leave entitlement. The respondent submitted that the complainant had in fact been paid for 23 days annual leave in 2019 – which it was submitted was 3 days in excess of his entitlement. At the final hearing the complainant’s representative undertook to check the complainant’s record and respond in writing to the WRC on this element of the complaint. On the 9th.April 2023, the complainant’s representative replied as follows:

“In relation to the claim of our client in respect of holiday pay we confirm that we have now taken our client's further instructions and he advises us that, as a substantial period of time has passed since his dismissal by his employer, he is not in a position to provide to the adjudicator any additional evidence to challenge the statement of the employer of holiday payments made to him.

As such our client is agreeable to the adjudicator issuing her decision based on the documents and evidence submitted to date”.

We trust the above is in order and look forward to receiving the adjudicator's decision in early course”.

While I acknowledge that the holiday records presented by the respondent are rudimentary and fall short of the level of detail required under the Act , I cannot uphold the complaint in circumstances where the complainant is unable to particularise the alleged breach of the Act with respect to holidays.

Complaint under Section 6 of the Payment of Wages Act, 1991.

CA-00038573-005

It was submitted that the respondent was in breach of the Act for failing to pay him 2 weeks’ notice. The respondent asserted that notice was not required as the complainant had resigned. In light of my finding that the complainant was unfairly dismissed, I am satisfied that the complainant was entitled to notice and consequently I am upholding this element of the complaint.

Complaint under Section 27 of the Organisation of Working Time Act 1997.

CA-00038573-007

The claimant submitted that he did not receive a daily rest period. In his direct evidence he asserted that his hours were far longer than those submitted by the employer and that the respondent’s figures did not factor in the considerable delays that arose with dropping and picking up bags. The claimant asserted that he commenced at 4.30p.m. and finished at 6.30 am. It was submitted that the respondent failed to provide him with 11 consecutive rest hours in any 24 hour period. It was contended that the records furnished by the respondent relating to the period 16th-17th.January 2019 were inadequate and undermined the complainant’s capacity to detail the complaint. It was submitted that sometimes the complainant did not finish work until 9.00a.m. It was submitted that was impossible to identify who was driving from the limited records furnished – it was submitted that the 11 rest period could not be facilitated given the nature of the route and it was asserted that the claimant had clarified in evidence that when the vehicle was stopped the complainant was working and collecting bags. The claimant’s representative contended that the respondent’s side should have all of the records submitted for the duration of the complainant’s employment. It was submitted that as far back as the 23rd.April 2020, the complainant’s representative had sought the entirety of the complainants employment records .

The respondent argued that it was incumbent on the driver to take breaks and that the respondent had a tracker device and records recording breaks that had been deemed satisfactory by the WRC inspectorate. It was advanced that the tracking device showed that the complainant had taken his breaks and that the respondent complied with their obligations under the Act. According to the respondent, the documents submitted for the period 16th. 17th.January 2019 showed that on the morning of the 16th.January 2019 , the complainant was home at 5.59 a.m. and that he left home at 4.34pm later that day to start work.it was submitted “he therefore had a home break of 10.5 hours between shifts.” It was asserted that the tracker demonstrated that the complainant had a 2-hour 10-minute break in Dublin during which time he could have slept if he wanted. It was further submitted that the record showed that he left Dublin at 1.35a.m. and was home again at 5.38 a.m.” His total time from house to house was 13hours and 26 minutes and it was submitted that a driver is allowed a total – drive – time of 10 hours per day. It was advanced that the records showed that the complainant was driving a total of 8 hours and 20 minutes on the 16th.Jan, 2019 and a total of 8 hours and 15 minutes the 17th.January, 2019.

I have reviewed the evidence presented and the submissions made on behalf of the parties and note that the parties are polarised on the matter of the 11-hour daily rest period. I note that records were sought by the complainant’s representative on the 23rd.April 2020.I further note that the complainant submitted a DSAR request seeking all working time records for the entirety of 2019 in September 2021.

I note that tracker records for 2 days during 2019 were furnished by the respondent’s representative.

Section 25 of the Organisation of Working Time Act 1997 states:

—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(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 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.

While I acknowledge the respondent’s assertions regarding the report from the WRC inspectorate with respect to records, I accept the submissions of the complainant’s representative that in order to substantiate his complaint, he would require a full and comprehensive record of the complainant’s driving and working time for the cognisable period covered by the Act and that these records were not furnished. His contention that an extract covering a confined period over 2 days on the 16th/-17th.January 2019 was insufficient is persuasive and compelling.

Given that the onus to demonstrate compliance rests with the respondent as set out in Section 25 I find on the balance of probabilities that the respondent breached the rest period provisions of Section 11 and accordingly I am upholding the complaint.

CA-00038573-011 Terms of Employment (Information) Act 1994

The complainant complained that he did not receive a statement in writing of his terms of employment and that consequently the respondent was in breach of the Act. The respondent denies the breach and has argued that the complainant was furnished with a contract on the 19th.Nov. 2017 and that he took it away to consider it but never signed the document.

The unsigned contract was submitted into evidence by the respondent who asserted that all employees were furnished with contracts. The date of the contract was the 1st.January 2018.

I note that on the 17th.December 2019, the complainant texted Mrs. C as follows - “can you send all pay slips I haven’t received when you get a chance at some point and copy of contract of employment. thank you”. I note the complainant does not refer to not having received a contract of employment. On the balance of probabilities I find the respondent’s version of events to be more credible than the claimant’s and accordingly I am not upholding the complaint.

CA-00038573-012 Terms of Employment (Information) Act 1994

The complainant asserted that he was not notified of a change to his terms of employment - the most recent change was effected in March 2018.The complainant’s complaint was received by the WRC on the 7th.July 2020.

Section 41 of the Workplace Relations Act 2015 states

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39 , refer the complaint for adjudication by an adjudication officer.
		(2) An employee or an employer (in this Act also referred to as a “complainant”) or, where the complainant so consents, a specified person, may refer a dispute as to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to the Director General, and, where a dispute is so referred, the Director General shall, subject to section 39 , refer the dispute for adjudication by an adjudication officer.
		(3) (a) An agency worker (in this Act also referred to as a “complainant”) within the meaning of the Act of 2012 or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to the Director General that the hirer (within the meaning of that Act) of the agency worker has contravened section 11, 14 or 24 of that Act in relation to the agency worker, and where a complaint is so presented the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.
		(b) References to employee and employer in the subsequent provisions of this Part shall, in so far as they relate to a complaint to which this subsection applies, be construed as references to agency worker within the meaning of the Act of 2012 and hirer within the meaning of that Act respectively.
		(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 42 by the Labour Court.
		(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—
		(i) inquire into the complaint or dispute,
		(ii) give the parties to the complaint or dispute an opportunity to—
		(I) be heard by the adjudication officer, and
		(II) present to the adjudication officer any evidence relevant to the complaint or dispute,
		(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and
		(iv) give the parties to the complaint or dispute a copy of that decision in writing.
		(b) In this subsection “relevant redress provision” means—
		(i) in relation to a complaint under this section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 the provision of that enactment specified in Part 1 of Schedule 6 ,
		(ii) in relation to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5 , the provision of that enactment specified in Part 1 of Schedule 6 , and
		(iii) in relation to a complaint under subsection (3), paragraph 1 of Schedule 2 to the Act of 2012.
		(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
		(7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—
		(a) in the case of a dispute relating to the entitlement of an adopting parent under the Act of 1995, it has been referred to the Director General after the expiration of the period of 6 months beginning on—
		(i) the day of placement (within the meaning of that Act) or, in circumstances where no placement takes place, the date on which the employer receives the first notification of the adopting parent’s intention to take leave under that Act (whether adoptive leave or additional adoptive leave, within the meaning of that Act), or
		(ii) in the case of an adopting father, the date on which the adopting mother died,
		(b) in the case of a dispute relating to the entitlement of an employee under the Carer’s Leave Act 2001 , it has been referred to the Director General after the expiration of the period of 6 months beginning on the date of the contravention concerned,
		(c) in the case of a dispute relating to the entitlement of an employee under the Act of 1994, it has been referred to the Director General after the expiration of the period of 6 months beginning on the date on which the employer is informed—
		(i) that the employee is pregnant, has recently given birth or is breastfeeding,
		(ii) in the case of an employee who is the expectant father of a child, that the expectant mother of the child is pregnant, or
		(iii) in the case of an employee who is the father of a child who has been born, that the child’s mother has died,
		(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000 , it has been referred to the Director General after the expiration of the period of 6 months beginning on—
		(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,
		(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section, or
		(iii) in the case of a dispute to which section 25 of that Act applies, the date on which the employee’s hours of work were reduced or alleged to have been reduced,
		and
		(e) in the case of a dispute relating to the entitlement of an employee under the Parental Leave Act 1998 , it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute.
		(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
		(9) (a) A complaint to which this section applies shall be presented to the Director General under subsection (1) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
		(b) A dispute to which this section applies shall be referred to the Director General under subsection (2) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
		(c) The Director General shall cause a copy of the notice under paragraph (a) or (b) to be given to the other party to the complaint or dispute concerned.
		(10) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.
		(11) A person to whom a notice under subsection (10) is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court.
		(12) A person to whom a notice under subsection (10) has been given who—
		(a) fails or refuses to comply with the notice, or
		(b) refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates,
		shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.
		(13) Proceedings under this section before an adjudication officer shall be conducted otherwise than in public.
		(14) The Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision (other than information that would identify the parties in relation to whom the decision was made) of an adjudication officer under this section.
		(15) (a) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute (including a complainant or such a respondent to whom paragraph (b) applies) may be accompanied and represented by—
		(i) a trade union official within the meaning of section 11 of the Act of 1990,
		(ii) an official of a body that, in the opinion of the adjudication officer, represents the interests of employers,
		(iii) a practising barrister or practising solicitor, or
		(iv) any other person, if the adjudication officer so permits.
		(b) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.
		(16) An adjudication officer may, by notice in writing given to the parties to a complaint or dispute to which this section applies, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute.
		(17) The Minister may, by regulations, make provision in relation to any matter relating to the presentation of a complaint, referral of a dispute or conduct of proceedings under this section that he or she considers appropriate.
		(18) In this section “specified person” means—
		(a) in relation to a complaint, a person belonging to a class of persons who, immediately before the passing of this Act, would have been entitled to present a complaint on behalf of the complainant concerned under the employment enactment to which the first-mentioned complaint relates, and
		(b) in relation to a dispute, a person belonging to a class of persons who, immediately before the passing of this Act, would have been entitled to refer a dispute on behalf of the complainant concerned under the employment enactment to which the first-mentioned dispute relates.

As the most recent alleged breach took place in March 2018 and given that the complaint was received on the 7th.July 2020 , the complaint is out of time and accordingly I have no jurisdiction on the matter .

CA-00038573-016 Terms of Employment (Information ) Act 1994

The complainant complained that he did not receive a statement of his core terms of employment in writing and that consequently the respondent was in breach of the Act. The respondent denies the breach and has argued that the complainant was furnished with a contract on the 19th.Nov. 2017 and that he took it away to consider it but never signed the document.

The unsigned contract was submitted into evidence by the respondent who asserted that all employees were furnished with contracts. The date of the contract was the 1st.January 2018.

I note that on the 17th.December 2019, the complainant texted Mrs. C as follows - “can you send all pay slips I haven’t received when you get a chance at some point and copy of contract of employment. thank you” . I note the complainant does not refer to not having received a contract of employment.On the balance of probabilities I find the respondent’s version of events to be more credible than the claimant’s and accordingly I am not upholding the complaint.

CA-00038573-017 Unfair Dismissals Act 1977

As per my finding on jurisdiction , the date of dismissal was the 13th.January 2019.I accept Mrs. C’s account of the exchanges that took place with the complainant on the 28th.November 2019 – I found her evidence to be consistent and it was corroborated by documentation including the diary and text messages between Mrs. C and the complainant. However , it is clear from the subsequent chain of events that some interaction between the complainant and Mr. C ensued resulting in some form of understanding about the claimant continuing in employment – notwithstanding the notice he had given to Mrs. C on the 28th.November.I found the evidence of the complainant to be inconsistent and evasive on the matter of when he had these discussions with Mr. C and find that no plausible explanation was advanced by the complainant for failing to respond to Mrs. C’s text of the 17th.December - requesting his notice in writing - to confirm/clarify that he had reached agreement with Mr. C on continuing in employment. While I fully acknowledge that there was a responsibility on Mrs. C - the company Director - to obtain written clarity on the matter from both Mr. C and the complainant, I find the complainant’s evidence and Mr. C’s evidence on this matter to have been evasive and inconsistent and this contributed to the confusion regarding the complainant’s employment status. In his direct evidence, the complainant stated at the outset that he told Mrs. C that if the payment arrangements for Mr. Y continued he would have to reconsider his position. He further asserted that Mrs. C told him that he could deal with Mr. C and not with her. This is contradicted by the text messages referenced by Mrs. C and her representative. The complainant said that later that day he had a discussion with Mr. C who undertook to sort the matter out. When giving evidence under cross examination about the termination of his employment on the 13th.January 2013, the witness asserted that he had reached an understanding with Mr. C the previous week, that Mr. C would sort it out. The complainant advanced no compelling explanation for not advising Mrs. C that the matter was sorted and was unable to explain his text to Mrs. C referring to the 3Oth.as his last day – he described this as a heat of the moment comment .It would appear that the strained relationship between the complainant and Mrs. C compounded matters.

The complainant was dismissed without investigation, without affording him his rights under natural justice and without any regard for the provisions of SI.146/2000.Accordingly I am upholding the complaint of unfair dismissal. However, I find that the claimant’s evidence in relation to his attempts to mitigate his loss were not persuasive.

Sec 7(1) Unfair Dismissals Acts 1977 to 2015

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid .

I am obliged to have regard to previous determinations from the Labour Court on the matter.

UDD1974 case of Philip Smyth and Mark Leddy

In the case, the Court found “The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

(UDD224) TOWNEY BAY FINISHING CO. LIMITED & DECLAN MCSHANE.In this case the Court reduced the compensation awarded from €12,000 to €2,000.

“This is an involved process and one to which the Complainant appears to have devoted his full time and attention up until the end of December 2019 as there is no evidence of his having made any further attempts to source work until he had completed his driver training. It follows, therefore, that either the Complainant deemed himself unavailable for work during this period because of the training he was undertaking (which he denies) or he made no effort to mitigate his loss….”

I am taking the unconvincing evidence of the complainant with respect to mitigation of loss into account in the award of compensation.

Decision:

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

Section 24 of the National Minimum Wages Act ,2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Complaint under the National Minimum Wage Act –

CA-00038573-001

For the reasons set out in my findings and conclusions, the complaint is not upheld because I have no jurisdiction to investigate it.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

CA-00038573-004/duplicate CA-00038573-010

For the reasons set out in my findings and conclusions, this complaint is not upheld.

Section 6 of the Payment of Wages Act ,1991 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

CA-00038573-005

For the reasons set out in my findings and conclusions , I am upholding the complaint and require the respondent to pay the claimant €1,400.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

CA-00038573-007

For the reasons set out in my findings and conclusions, I am upholding the complaint and require the respondent to pay the complainant €1,500 compensation .

Section 7 of the Terms of Employment (Information) Act ,1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act

CA-00038573-011

For the reasons set out in my findings and conclusions this complaint is not upheld

Section 7 of the Terms of Employment (Information) Act ,1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act

CA-00038573-012

For the reasons set out in my findings and conclusions, this complaint is not upheld.

Section 7 of the Terms of Employment (Information) Act ,1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act

CA-00038573-016

For the reasons set out in my findings and conclusions, this complaint is not upheld.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00038573-017

For the reasons set out in my findings and conclusions, the complaint is upheld.

I require the respondent to pay the claimant €7,000 compensation for his unfair dismissal.

Dated: 10/07/2023

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words: