Complainant

Respondent

Parties

Eugeniu  Mutruc

Mourne Freight Services

Complainant

Respondent

Parties

Eugeniu Mutruc

Mourne Freight Services

Representatives

  self

 Ian Derby

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00051529-001

04/07/2022

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

CA-00051529-002

04/07/2022

The Complainant was employed as an HGV Driver.

His employment commenced on the 8th of August 2021 and ceased on the 14th of June 2022.

He claims that he did not receive redundancy and any Bank Holidays since the beginning of his employment.

During the hearing he also stated that he didn’t receive any notice.

His Employer has a registered business address in Northern Ireland: Mourne Freight Services Ltd Company No NI 622667.

The Complainant stated that his employment was based at Unit 12 Dunshauglin Business Park, Dunshaughlin, Meath A85H51.

Jurisdiction to adjudicate on the complaints was not put in issue by the Respondent employer.

The Brexit transition period expired on 31st December 2020.

The Complaint form was lodged with the WRC on the 4th of July 2022.

Until 1st of January 2021 the Brussels 1 Recast Regulation determined which court had jurisdiction.

Since 1st of January 2021 new proceedings in Ireland against a UK party are governed by the Hague Convention on Choice of Court Agreements (Hague 2005).

However, consumer, employment contract disputes, personal injury claims, insolvency matters, and family law disputes are excluded from the scope of Hague 2005.

As neither party to this dispute has raised the matter of jurisdiction and have fully engaged with requests for further information; it is reasonable to conclude that the parties have agreed that the complaints should be adjudicated by this tribunal.

The applicable law since the transition period has ended has not significantly changed. This is because the relevant provisions of Rome 1 and 11 Regulations apply in force in EU member states and do not depend on mutual reciprocity.

Rome 1 Regulations govern employment contracts.

The following are 3 important principles that underpin the Regulations:

·         The principle of freedom of choice

·         The principle of proximity

·         The principle of the protection of a weaker party.

I note that Article 8(2) Rome Regulations states:

2. To the extent that the law applicable to the individual

employment contract has not been chosen by the parties, the

contract shall be governed by the law of the country in which or,

failing that, from which the employee habitually carries out his

work in performance of the contract. The country where the

work is habitually carried out shall not be deemed to have

changed if he is temporarily employed in another country

The Complainant is habitually resident in Ireland, his place of work was located at Unit 12 Dunshauglin Business Park, Dunshaughlin, Meath A85H51.

 Having regard to these facts and that both parties have agreed to attend this hearing and to respond to the Claims under Irish Law, the applicable law is Irish Employment Law as relied upon by the Complainant.

The Complainant stated that his employment commenced on the 8th of August 2021 and ended on the 14thh of June 2022.

He stated that he didn’t receive notice, bank holidays and received no statutory redundancy payment

The Employer stated that the Complainant had not previously claimed for notice, and it was not on the complaint form.

The Complainant’s service does not entitle him to a statutory redundancy payment.

The Complainant was paid for his public holiday entitlement.

Redundancy:

Section 7 of the Redundancy Payments Act 1967 as amended required that an employee to be entitled to statutory redundancy must have 104 weeks continuous service:

5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short-time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

The Complainant does not meet the requisite service requirement as is not entitled to a statutory redundancy payment.

Minimum Notice:

The complaint that the Employer did not comply with the requirement to give notice has not been properly put to the Employer and raised at the hearing. The matter is not properly before me for hearing.

Public Holiday Entitlement:

The Employer was requested to send details of the Public Holidays paid to the Complainant. On or about the 15th of March 2023 they forward a file that was not clear and did not detail the Public Holidays paid as they fell due.

Arising from that correspondence the Adjudicator wrote to the Employer requesting the following:

DearMr Ian Derby

I am finalising this decision and have reviewed your reply and attachment concerning my request made in March to detail the Public Holidays paid. As you know there are statutory annual leave days and separately public holiday entitlement. It is not clear in your email what you are referring to when you state that 5 days holidays were paid.

I would suggest that you specify each public holiday in an email reply and state when it was paid and then provide evidence of this from your payroll department. The attachment you submitted is not clear and does not specify by date when each of the Public Holidays was in fact paid.

In your email and attachment of the 15th of March 2023 you state:

Mr Mutruc 6/01/23 Paid 5 Days Holidays €650-00 Nett

Also Finished Work 14-06-22 Paid on 16-06-22 9 Days €1170 Nett inclusive off all monies due as per Letter

Regards

Ian Derby

The attachment sent on the same day fails to identify what Public Holidays were paid.

During the Complainant’s period of employment the following Public Holidays arose:

Public Holidays:

In 2021 the following days were Public Holidays during the relevant period commencing on the 8th of August 2022:

1.            October 25th

2.            December 25th

3.            December 26th

And for 2022 until the date of employment ceasing on the 14th of June 2022:

4.            January 1st

5.            March 17th

6.            April 18th

7.            May 2nd

8.            June 6th

In total 8 days.

These days are separate to statutory holidays.

An employee is entitled to a paid holiday for each of the above.

If you qualify for a public holiday an employee is entitled to:

·         A paid day off on the public holiday

·         An additional day of annual leave

·         An additional day's pay

·         A paid day off within a month of the public holiday

I would like to finalise this decision over the coming days and would request that you reply within 5 working days.

Section 25 of the Organisation Working Time Act 1997 as amended requires:

25.—(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 and, where applicable, the Activities of Doctors in Training Regulations] 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.

In this case the Employer may have the records as requested. However, on the 3rd of July 2023 in reply to provide the detail for each Public Holiday paid the following reply was received:

Hi We had reviewed Mr Mutruc wages/Holiday pay etc at request off WRC and confirmed previously all monies due were paid upto Date Mr Mutruc left our employment. Mr Mutruc was seeking Redundancy which did not apply in this case. We attended the online Tribunal and provided all information required from ourselves by WRC Regards Ian Derby (on behalf of Mourne Freight Services Ltd)

The information as required by this this tribunal has not been provided.

The Complainant commenced his employment on the 8th of August 2021.

The leave year commences on the 1st of April to the 31st of March.

At the end of the leave year an employee has 6 months to take their leave.

In this case it is alleged that no Public Holiday’s were provided and nor record of payment has been provided by the Employer.

The Complainant’s employment ceased on the 14th of June 2022.

How many Public Holidays occurred during the relevant period? I calculate that 5 Public Holidays fell during the 2021 leave year that ended on the 31st March 2022. The Complainant must take those days during the 6 months commencing on the 31st March 2022 as they relate to Public Holidays not paid for. The Complaint form was lodged with the Commission on the 4th of July 2022 and therefore not out of time to be claimed.

3 Public Holidays were due for payment during the 2022 leave year.

As the Employer has failed to provide the detail as required, I must determine that the Complainant is entitled to be paid for 8 Public Holidays.

Gross Weekly Pay is stated to be €1200, and I assess loss at €240 gross per Public Holiday and in total determine that 8 Public Holidays amount to a loss of €1920 gross.

CA-00051529-001 Redundancy:

The Complainant does not have the requisite service to bring this complaint. I determine that the appeal of the Employer’s decision not to give statutory redundancy is not upheld and I dismiss the complaint. The Complaint is not well founded.

CA-00051529-002 Public Holidays:

As the Employer has failed to provide the detail as required, I must determine that the Complainant is entitled to be paid for 8 Public Holidays.

Gross Weekly Pay is stated to be €1200, and I assess loss at €240 gross per Public Holiday and in total determine that 8 Public Holidays amount to a loss of €1920 gross

I determine that the complaint is well founded, and I award the Complainant €1920 in compensation arising from the failure of the Employer to pay Public Holidays as required to the Complainant.

Brexit-Northern Ireland-Place of Work-EU Law