Complainant

Respondent

Parties

Oleg  Bitu

John Kenny Haulage Limited

Representatives

Mr. Marius Marosan

Mr. Thomas Ryan, Peninsula Business Services

Act

Complaint 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-00030644-001

04/09/2019

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

CA-00030644-002

04/09/2019

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

CA-00030644-003

04/09/2019

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-00030644-004

04/09/2019

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-00030644-005

04/09/2019

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

CA-00030644-006

04/09/2019

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

CA-00030644-007

04/09/2019

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

CA-00030644-008

04/09/2019

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

CA-00030644-009

04/09/2019

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

CA-00030644-010

04/09/2019

The Complainant commenced employment with the Respondent on 2nd November 2015. The Complainant was a permanent, full-time member of staff. The Complainant’s terminated his contract of employment on 25th March 2019. Whilst the parties were in dispute as to the Complainant’s average weekly rate of pay, his P60 for the year 2018 (being his last full year of employment) demonstrated an average weekly payment of €610.73.

On 4th September 2019, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that the Respondent had failed to provide him with various statutory entitlements and rest periods, in addition to an allegation of constructive dismissal. By response, the Respondent conceded some of the Complainant’s complaints, however they disputed the majority of the same, in particular the complaint under the Unfair Dismissals Acts.

Hearings in relation to these matters were convened for numerous dates across 2020 and into 2021. Unfortunately, the progress of the matter was initially delayed by the restrictions arising from the Covid-19 pandemic and the difficulty in convening a hearing on foot of the same. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence. On foot of the same, the hearing was designated to the present Adjudication Officer to commence anew.

In advance of the hearing, both parties issued extensive submissions in respect of the various complaints. These submissions were expanded upon and disputed by the opposing side during the hearing. Evidence, primarily in relation to the Unfair Dismissals complaint, was taken under affirmation from the Complainant and the Managing Director of the Respondent.

Various issues as to jurisdiction were raised in relation to the individual complaints. These will be considered under the individual headings in relation to the same.

Complaint under Terms of Employment Information Act

The Complainant stated that he did not receive a contract of employment at any stage of his employment.

Regarding the documentation produced by the Respondent, the Complainant submitted that he did not have sight of the same at the relevant time.

Complaints under the Organisation of Working Time Act

The Complainant stated that he was no compensated for working on Sundays, in contravention of the Act.

In addition to the foregoing, the Complainant submitted that throughout his employment, and most recently in February 2019, he worked seven days in a row, in contravention of the Act.

The Complainant further submitted that he received an inadequate public holiday entitlement. In particular, he submitted that he received a payment of €80 per public holiday. As this sum was less than his normal daily rate, he submitted that the Respondent was in breach of the Act in this regard.

In addition to the foregoing, the Complainant stated his annual leave payment was €80 per day, again less than his average daily payment.

Complaints under the Payment of Wages Act

The Complainant alleged that the Respondent underpaid him by the sum of €9,975.00. He stated that his figure accrued during his employment in that he continuously failed to receive payment of time spent waiting for ships and other third parties. He stated that he would receive a standard daily rate whilst engaged in driving duties, whilst being paid the sum of €14 per hour whilst working in the warehouse.

The Complainant further alleged that on 12th February 2019, the Respondent made an illegal deduction from his wages in respect of damage sustained to his vehicle. He submitted that the sum of €265 was illegally deducted from his wages in this regard. Finally, the Complainant submitted that he was owed ten day’s wages on the termination of his employment.

In relation to the Respondent’s submission in respect of the time related issues arising from the same, the Complainant submitted that the wages were due and owing at the end of his employment and consequently the entirety of the matter is in time.

Complaints under the Mobile Transport Regulations

The Complainant submitted that he was required to work in excess of the weekly permitted hours on an ongoing basis. In particular, the Complainant submitted that he would frequently be required to sleep in the cab of his vehicle for five nights per week.

The Complainant further submitted that would not receive his statutory break allowances.

Regarding the documentation produced by the Respondent in relation to these matter, the Complainant submitted that these did not accurately reflect his working patterns. In particular, he submitted that his handwritten notes indicated much greater working hours than those displayed on the records provided. By submission, his representative submitted that the records of payment, in particular the hourly rate of pay on various payslips further contradicts the information provided by the Respondent.

Complaint under the Unfair Dismissal Acts

The Complainant alleged that he raised numerous issues with his employer in respect of his conditions of work and health and safety issues. He stated that he would normally raise these issues  verbally however, it became apparent that the Respondent did not intend to do makes any meaningful corrections in respect of the same. The Managing Director of the Respondent also acted as the Complainant’s landlord and on numerous occasions threatened to evict the Complainant should he fail to continue in his service.

In early 2019, the Complainant formed the view that this situation would not improve and duly gave his notice of resignation. Following the same, he met with the Respondent on 26th March 2019 and stated that he would remain in employment if he was paid appropriately for his work. When the Respondent failed to agree to these terms, the Complainant completed his notice period.

The Complaint submitted that he had been constructively dismissed from his employment. He stated that he attempted to raise numerous issues with his employment. On these occasions, the matters would not be addressed, and matters would proceed as before. The Complainant stated that he gave his notice so his employment might have an opportunity to rectify the situation.

In answer to a question posed by the Adjudicator, the Complainant stated that he could not recall the exact dates on which he raised the issues but stated that he did so on numerous occasions.

Complaint under the Terms of Employment Information Act

The Respondent stated that the Complainant was provided with a full set of contractual documentation at, or near, the commencement of his employment. In this regard, they provided a copy of the employee handbook that was in use at the relevant time.

In answer to a question, they accepted that they could not provide a signed copy of the Complainant’s contract.

Complaints under the Organisation of Working Time Act

Regarding the Complainant’s Sunday premium, the Respondent submitted that his contract of employment contained a clause that stated that his rate of pay was inclusive of a Sunday premium. In circumstances whereby the Complainant was paid in excess of the national minimum wage, the Respondent submitted that this satisfied the test set out by the High Court in relation to these matters

The Respondent accepted that the Complainant’s rate of pay in respect of the annual leave and public holiday entitlements had been miscalculated and undertook to repay the same to the Complainant. They further accepted that they owed the Complainant nine days annual leave accrued by the termination of his employment.

The Respondent denied that they were in breach of the Act in relation to a weekly rest break .They accepted that while the Complainant may have worked seven continuous days during his employment, his roster would be organised so as to ensure compliance with the Act. Notwithstanding the same, the Respondent submitted that the Complainant did not work in such a manner during the relevant period for the purposes of the present Act.

Complaints under the Payment of Wages Act

As a preliminary issue, the Respondent stated that the complaint, as presented is statute barred for the purposes of the present Act. They submitted that the figure of €9,975.00 appears to relate to an allegation of underpayment throughout the Complainant’s tenure with the Respondent. In such circumstances, given that the Complainant commenced employment almost four years prior to the referral of the present complaint, they submitted that the complaint is statute barred for the purposes of the present Act.

In addition to the foregoing, the Respondent submitted that it is not apparent how the Complainant arrived at the figure quoted or what method he used to calculate the same. Notwithstanding the foregoing, the Respondent submitted that the Complainant was paid for all hours of work completed.

Regarding the allegation of the illegal deduction of €245.00, the Respondent accepted that this was deducted from the Complainant’s pay without the necessary steps stipulated in Section 6 of the Act. In such circumstances the Respondent conceded this element of the complaint and undertook to repay the amount in question.

In addition to the foregoing, the Respondent accepted that they owed the Complainant ten day of unpaid wages.

Complaints under the Mobile Transport Regulations

The Respondent denied that the Complainant was required to work in excess of the weekly permitted hours at any stage of his employment, and particularly within the relevant period for the purposes of the present Regulations. In this regard, the Respondent produced various reports from their tachograph system utilised.

The Respondent further submitted that these reports demonstrated that the Complainant received his statutory breaks at all times.

Complaint under the Unfair Dismissals Acts

At the outset, the Respondent submitted that the Complainant had not established the factual basis for a complaint of constructive dismissal.

In evidence, the Managing Director of the Respondent denied that the Complainant raised the issues outlined verbally or at all. He stated that March of 2019, the Complainant gave notice of his intention to resign in one month. On foot of the same, the Respondent corresponded with the Complainant requesting that he re-consider his resignation. On foot of the same, a meeting was convened between the parties in order to convince the Complainant to remain in employment. During this meeting the Complainant requested an increase in his rate of pay. In circumstances whereby the Respondent did not agree to the same, the Complainant notice period expired and his employment terminated.

By submission, the Respondent submitted that the Complainant did not raise formally raise a grievance at any stage of his employment. He submitted that the correspondence of 19th March invited the Complainant to do so, and that the Complainant’s failure in this regard is fatal to his allegation of constructive dismissal.

CA-00030644-001 Complaint under the Terms of Employment (Information) Act

Regarding this dispute, the Complainant stated that he did not receive a contract of employment at any stage of his employment. In the alternative, the Respondent submitted that the Complainant would have received a contact of employment at or near the commencement of this employment. However, at the hearing of the matter, the Respondent could not produce a signed copy of the same.

Section 3 (5) of the Act prescribes that,

“A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”

Having regard to the foregoing, I find that the Respondent is in breach of Section 3 of the Act and consequently the Complainant’s application is well-founded.

CA-00030644-002 Complaint under the Organisation of Working Time Act

The Complainant has alleged that he did not receive his full annual leave entitlement on the termination of his employment. He further submitted that the rate of pay of annual leave was calculated incorrectly throughout his employment with the Respondent.

By response, the Respondent conceded both these breaches of the Act and undertook to repay the Complainant the amount owed.

In these circumstances, I find that the complaint is well-founded.

CA-00030644-003 Complaint under the Organisation of Working Time Act

The Complainant has alleged that the Respondent has underpaid him in relation to public holidays in breach of the impleaded legislation.

In circumstances whereby the complaint for was received by the Commission on 4th September 2019, the cognisable period for the purposes of the present complaint runs from 4th March to that date.

In circumstances whereby the Complainant’s final day of employment was 25th March 2019, it is apparent that one public holiday falls to be considered in relation to this complaint.

Notwithstanding the forgoing, the Respondent has accepted that the Complainant was underpaid by approximately €30 in respect of his public holiday entitlement. In such circumstances, I find that the complaint is well founded.

CA-00030644-004 Complaint under Statutory Instrument Number 36 of 2012

The Complainant alleged that he was required to work in excess the maximum weekly hours as provided for in the regulations. In this regard, the Complainant stated that he would frequently work in excess of 64 hours per week.

Regulation 5(1) of the Statutory Instrument provides that,

“a person performing mobile road transport activities shall not exceed—

(a) a working time of more than 60 hours in a week,

(b) an average weekly working time of 48 hours in any reference period.

Regulation 12 of the Statutory Instrument further provides that,

“An employer shall do each of the following in relation to each mobile worker employed by him or her:

(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

(c) include time worked for another employer in the calculation of the mobile worker’s working time;

(d) keep records which are adequate to show that these Regulations are being complied with;

(e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;

(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

(h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer’s possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).”

In defending the complaint, the Respondent provided tachograph records demonstrating that the Complainant worked 55 hours, 57 hours and 49 hours within the relevant period of the purposes of the Act. They further submitted that the same records indicated that the Complainant did not work in excess of an average of 48 hours per week over the reference period as outlined in the regulations.

Notwithstanding the same, the Complainant has raised issue with the accuracy of these records, submitting that a docket completed by the Complainant for the 11-15 March 2019 demonstrated that he worked a total of 66 hours. The Complainant further displayed a payslip indicating that he was paid in accordance with this docket.

Having regard to the foregoing, I find that records submitted by the Respondent in this regard are not corroborated by their own internal documentation. In such circumstances, I prefer the evidence of the Complainant and consequently find that the complaint is well-founded.

CA-00030644-005 Complaint under Statutory Instrument Number 36 of 2012

The Complainant stated that he did not receive correct breaks in accordance with the Regulation 8 of the Statutory Instrument.

In this regard, Regulation 8 provides that,

“(1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

(4) Each break may be made up of separate periods of not less than 15 minutes each.

(5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.”

In this regard, the Respondent provided various tachograph records in a general defence of the allegations. However, it is apparent that the records provided do not demonstrate that the Complainant availed of his break entitlement in accordance with Regulation 8. In circumstances whereby Regulation 8(5) places the burden of compliance with the Respondent, I find that the complaint is well-founded.

CA-00030644-006 Complaint under the Payment of Wages Act

The Complainant has alleged that he was underpaid throughout his employment in respect of time waiting on loading to occur etc. He submitted that these unpaid wages totalled some €9,975.00 over the tenure of his employment.

Regarding the time limits for such complaints, In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

In circumstances whereby the allegation of unpaid wages is framed by the Complainant to include an allegation of non-payment over a number of years, I find that the complaint is statute-barred for the purposes of the present Act.

CA-00030644-007 Complaint under the Payment of Wages Act

The Complainant has alleged that a sum of €245 was unlawfully deducted from his final payslip. The Respondent further accepted that they owed the Complainant ten day’s wages on the termination of his employment.

Having regard to the foregoing, I find that this complaint is well-founded.

CA-00030644-008 Complaint under the Organisation of Working Time Act

The Complainant alleged that he was not compensated for Sunday work in contravention of the Act.

In circumstances whereby it is apparent that the Complainant did not work on a Sunday during the cognisable period for the purposes of the Complaint, I find that this complaint is well-founded. 

CA-00030644-009 Complaint under the Unfair Dismissals Acts

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:

“…the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In the present case, the Complainant has alleged that he raised numerous issues regarding his conditions of work during 2018 & 2019. The Complainant stated that these were of a verbal nature and were always dismissed by the Respondent. While I note the Respondent denies receiving any such verbal grievances, it is apparent that the Complainant was invited to a meeting following the receipt of his notice of resignation. This meeting represented an opportunity for the Complainant to outline his issues in a formal manner and allow the Respondent to respond to the same. From the brief minutes of the meeting it is apparent that no such issues were discussed. From the evidence of the parties, it is further apparent that the primary point of discussion related to a negotiation regarding the Complainant’s rate of pay.

Having regard to the foregoing, I find that the Complainant has not discharged the burden of proof imposed on him by virtue of Section One of the Act and consequently his application fails.

CA-00030644-010 Complaint under the Organisation of Working Time Act

The Complainant alleged that he did not receive his weekly rest break, in particular, he stated that he worked for 7 continuous days in February 2019.

In circumstances whereby the complaint for was received by the Commission on 4th September 2019, the cognisable period for the purposes of the present complaint runs from 4th March to that date.

Having regard to the foregoing, I find that the complaint was referred in excess of six months from the date of the alleged contravention. As a consequence of the same, I find that the complaint is not well-founded.

CA-00030644-001 Complaint under the Terms of Employment (Information) Act

The complaint is well-founded and consequently I find in favour of the Complaint.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having regard to the totality of the evidence presented. I award the Complainant the sum of €1,832.19, or the equivalent of three weeks’ salary, in compensation for the breach of the Act.

CA-00030644-002 Complaint under the Organisation of Working Time Act

Section 27 of the Organisation of Working Time Act 1997 (as amended) provides that a decision of an Adjudication Officer shall do one or more of the following:

1.Declare the complaint was or was not well founded;

2.Require the Employer to comply with the relevant provision;

3.Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

In light of the foregoing, I find that the complaint as presented to me is well founded. Given that the breach of the legislation was persistent and ongoing, I direct the Respondent to pay the Complainant compensation in the sum of €1,000.

CA-00030644-003 Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded. Having regard to the totality of the evidence provided, I award the Complainant the sum of €500 in compensation.

CA-00030644-004 Complaint under Statutory Instrument Number 36 of 2012

I find that the complaint is well-founded. Having regard to the totality of the evidence provided, I award the Complainant the sum of €1,000 in compensation.

CA-00030644-005 Complaint under Statutory Instrument Number 36 of 2012

I find that the complaint is well-founded. Having regard to the totality of the evidence provided, I award the Complainant the sum of €1,000 in compensation.

CA-00030644-006 Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

CA-00030644-007 Complaint under the Payment of Wages Act

I find that the complaint is well-founded and consequently the Complainant’s application succeeds.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

In light of the foregoing, I order the Respondent to pay the Complainant the sum of €245.00, the amount of the deduction from his wages. I further order the Respondent to pay the Complainant the sum of €1,221.46 in respect to the wages owed to the Complainant on the termination of this employment.

This payment should be subject to all normal deductions as income.

CA-00030644-008 Complaint under the Organisation of Working Time Act

I find that this complaint is not well-founded.

CA-00030644-009 Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed within the meaning of the Acts.

CA-00030644-010 Complaint under the Organisation of Working Time Act

I find that this complaint is not well-founded.

Driver Records, Constructive Dismissal