Complainant

Respondent

Parties

Marcin  Gabryszak

Event Transport Ireland Ltd

Representatives

Jacek Krawczyk Lay Representative

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052438-001

28/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052438-003

28/08/2022

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

CA-00052438-004

28/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052438-005

28/08/2022

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

CA-00052438-007

28/08/2022

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-00052438-008

28/08/2022

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-00052438-010

28/08/2022

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

CA-00052438-011

28/08/2022

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

CA-00052438-012

28/08/2022

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

CA-00052438-013

28/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation.  A witness for the respondent who attended on the first hearing date gave her evidence under affirmation.  The first hearing date came to a sudden close when the witness for the respondent indicated that she had to go as there was a sick child.

The respondent refused to attend the second hearing date citing a lack of advance notice of the hearing in that she did not receive the notification to a named email address.  As the respondent had received the notification to attend the first hearing date to an info@ email address and had attended that hearing and given that the respondent cited the info@ email address repeatedly in correspondence to the WRC, it is considered that the respondent received appropriate notice and was aware of the details of the second hearing date.  Although the respondent refused to attend the second hearing, it proceeded in the respondent’s absence.

CA-00052438-001 Terms of Employment (Information)

The complainant submitted that he was not provided with his terms and conditions within the statutory period.

CA-00052438-003 Unlawful deduction

The complainant submitted that an unlawful deduction of €200 was made from his wages in respect of a fine.

CA-00052438-004 Holiday/Annual Leave

The complainant submitted that he was summarily dismissed and did not receive his annual leave entitlement of 12 days.

CA-00052438-005 Notice

The complainant submitted that he did not receive his payment in lieu of notice when he was dismissed.

CA-00052438-007 Public Holiday entitlement

The complainant submitted that he did not receive his entitlement in respect of public holidays he worked, that is 17 & 18 March and 2 May 2022.

CA-00052438-008 Statutory Records

The complainant submitted that his employer did not keep statutory records in accordance with the requirements of the regulations

CA-00052438-010 Working Hours

The complainant submitted that he was not notified of the applicable working hours regulations connected with his employment.

CA-00052438-011 Core Terms

The complainant submitted that he was not provided with a statement of his core terms and conditions within the statutory period.

CA-00052438-012 Unfair Dismissal

The complainant submitted that he had to resign from his employment after notified his employer that he would be making a protected disclosure and his terms and conditions of work changed.

CA-00052438-013 Minimum Notice

The complainant submitted that he did not receive the minimum notice period to which he was entitled.

Summary of Complainant testimony:

The complainant stated that he was employed by the respondent after he went looking for work in Dublin, they gave him a truck and he started working. He stated that when he was on Social Welfare he was on the payment for those who had lost their job. He stated that he never registered as self-employed, he was paid weekly, and he never issued invoices to the respondent. He stated that he followed direction and was never allowed to offer a substitute driver in his place. He also stated that he never used his own equipment.  He stated that he always treated the owner as his employer not as a client and that he was always his boss.

The complainant stated that he never received pay slips and that when he had to pay a fine in England it was deducted from his wages, and he never authorised this deduction. He said he had a regular weekly routine he started on a Monday afternoon picking up a truck and phone Ann finished on a Friday, and he used a work phone with a specific application.

The complainant said he never took days off and although there were five days off for Easter these were not paid days off, he said he spent five days per week at work and worked for a minimum of 40 hours per week.

The complainant said that there were no records kept of his driving hours and that revenue told him there were no tachograph records. He also said that he was not notified of the road transport hours and received no training.

In relation to his unfair dismissal, the complainant stated that he did not agree with the deduction taken from his pay. He said that (in relation to the incident in England) he spoke to the police officer who stated that the fine was for his employer to pay and was not personal. The complainant said when he came for work on the 26 May there was no work for him, the following day when he turned up he was told he would be given a different job from his usual route. He said the issue on his usual route from Manchester arose because a load was inadequately secured, and the protective curtain was damaged. He was told by the police officer that if he wants to leave, he needs to secure the cargo. He was told that he must get on the truck and secure the load himself according to his supervisor.

The complainant said that additional belts were delivered to him to secure the load he indicated that he never touched the seals and that his employer knew but had not instructed him to return for a customs check.  The complainant stated that he felt his employer blamed him for the fact that the police were able to view the load but that he simply cooperated with the authorities.

The complainant confirmed in response to a question from the adjudicator that he did not get a letter from police as he was advised by his supervisor and when asked when he advised the employer that he intended to go to the revenue commissioners, he indicated that he couldn't remember exactly but it was in around 25 or 26 May 2022. He stated that after this he was taken off the Manchester route and that there was a change in his employment. He was told he would have a different job assignment and that his hours were supposed to change. When asked why this new job offer was not acceptable to him, he indicated that it was because he would have to lift things and move things and he didn't want to do this. He indicated that there were additional duties and to the best of his understanding the Manchester route is still available and being undertaken.

The complainant stated that he was supposed to wait one day for another job but that he told his boss that he would not accept the new job and went home.

The respondent submitted that the complainant was driving their rig, filled with their fuel under their haulage licence and had requested to be a contractor, therefore the complainant was not an employee at all.

CA-00052438-012 Unfair Dismissal

Having regard to the unfair dismissal complaint I note that the complainant worked for less than the 12 months required to come within the protections of the act. The complainant submitted that he made a protected disclosure and was unfairly dismissed thereafter by way of constructive dismissal. The complainant submitted that by making a protected disclosure, he comes within the protection of the Unfair Dismissals Act.  The complainant gave direct evidence regarding the making of a protected disclosure, I did not find his evidence credible. He did not provide any detail in relation to what was said and could not recall when the disclosure was made. 

Section 2(1)(a) and 6(1) & (2)(ba) of the Unfair Dismissals Act state as follows:

2.—(1) Except in so far as any provision of this Act otherwise provides This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

…

(ba) the employee having made a protected disclosure,]

As the complainant has not credibly established the existence of a protected disclosure in relation to his case I find that he cannot avail of the exemption to the 12 month service rule contained in the Act and cannot avail of the protections of the Unfair Dismissal act.

CA-00052438-001 Terms of Employment (Information)

The complainant submitted that he did not receive any pay slips, however, this aspect (Section 6B -  offences) of the Terms of Employment (Information) Act, 1994, falls outside the remit of an adjudicator with the WRC.

CA-00052438-003 Unlawful deduction

Having regard to the complaint regarding annual leave allowance I am satisfied that the complainant’s evidence is credible. Accordingly, I find that this complaint is well founded.  I consider that compensation of €200 is just and equitable in all the circumstances.

CA-00052438-004 Holiday/Annual Leave

Having regard to the complaint regarding annual leave allowance I am satisfied that the complainant’s evidence is credible. Accordingly, I find that this complaint is well founded.  The complainant is entitled to 20 days statutory annual leave and worked for five months with the respondent.  The complainant was entitled to 8.5 days annual leave for the duration of his employment.  He received €160 net per day for his work.  Having regard to all the circumstances, I consider that compensation of 10 days wages, i.e., €1600 is just and equitable.

CA-00052438-005 Notice

As the compliant has resigned, I am satisfied that he is not entitled to payment in lieu of notice under the Act, and I find that his complaint is not well founded.

CA-00052438-007 Public Holiday entitlement

Having regard to the public holiday entitlement, I am satisfied that the complainants evidence in this regard is credible and that he did not receive his entitlement in respect of three public holidays that he worked. Accordingly, I find that this complaint is well founded.  Having regard to all the circumstances, I consider that compensation of 4 days wages, i.e., €640 is just and equitable.

CA-00052438-008 Statutory Records

Having regard to the written and oral evidence submitted in relation to this complaint I am satisfied that the employer did not keep statutory records in accordance with the requirements of the regulations. Therefore, I find that this complaint is well founded. Having regard to all the circumstances, I consider that compensation of one weeks wages, i.e., €800 is just and equitable.

CA-00052438-010 Working Hours

Having regard to the notification of his working hours, I am satisfied that the complainant’s evidence in this regard is credible

CA-00052438-011 Core Terms

The complainant provided no evidence to substantiate his claim that he did not receive a statement of his core terms.  Having regard to this, I am not satisfied that the complaint is well founded.

CA-00052438-013 Minimum Notice

As the compliant has resigned, I am satisfied that he is not entitled to payment in lieu of notice under the Act, and I find that his complaint is not well founded.

CA-00052438-012 Unfair Dismissal

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant cannot avail of the protections of the Unfair Dismissals Act.

CA-00052438-001 Terms of Employment (Information)

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this matter is outside the remit of adjudication at the WRC under the Act.

CA-00052438-003 Unlawful deduction

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is well founded, and I award the complainant €200.

CA-00052438-004 Holiday/Annual Leave

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is well founded, and I award the complainant €1600.

CA-00052438-005 Notice

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is not well founded.

CA-00052438-007 Public Holiday entitlement

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is well founded, and I award the complainant €640.

CA-00052438-008 Statutory Records

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that this complaint is well founded, and I award the complainant €800.

CA-00052438-010 Working Hours

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant’s evidence is credible, and his complaint is well founded.

CA-00052438-011 Core Terms

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is not well founded.

CA-00052438-013 Minimum Notice

Having regard to all the written and oral evidence provided in relation to this complaint, my decision is that the complaint is not well founded.

Unfair Dismissal – no protected disclosure established – outside timeframe of Act - Employment relationship established – no statutory paperwork provided to employee – award of compensation