Complainant

Respondent

Parties

Barry  Kane

Fegans Cash and Carry Limited

Representatives

Seamus Taaffe of Francis B. Taaffe & Co. LLP Solicitors

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-00049644-001

11/04/2022

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

CA-00049644-002

11/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00049644-004

11/04/2022

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

CA-00051493-001

02/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00051493-002

02/07/2022

A former Director appeared at the hearing for the respondent and explained that the respondent had not been trading for some months and had applied to go into voluntary liquidation. He confirmed that a liquidator had not been appointed. In these circumstances, where the respondent still existed as a legal entity, I confirmed that it was appropriate for me to continue with the hearing.

The complainant has submitted two complaint forms with complaints under the Terms of Employment (Information) Act 1994, the Payment of Wages Act 1991 and the Protection of Employees (Fixed-Term Work) Act 2003. Two complainants under the Protection of Employees (Fixed-Term Work) Act were withdrawn at the hearing and I am therefore making no decision in relation CA-00049644-004 and CA-00051493-002.

The complainant submits he started working for the respondent on 1 January 1998 as a Storeman and he had no written contract of employment. He finished working for the respondent on 7 July 2022.

CA-00049644-001; Terms of Employment (Information) Act 1994: He says it was a term of his employment for more than 15 years that the respondent pays the cost of his travel from home to his place of work by purchasing an annual ticket from Irish Rail. This condition was unilaterally withdrawn in 2020 and has not been restored. Nor was he notified in writing of this change to his terms of employment.

Prior to the Covid pandemic he worked forty hours per week. In March 2020 he was laid off for 5 weeks and received the PUP payment. In May 2020 he returned to work and was told the respondent would no longer be paying for his rail ticket. In September 2020 he was put on part-time work, 20 hours per week, while two other employees stayed on full time hours.

CA-00049644-002 & CA-00051493-001; Payment of Wages Act 1991: the complainant submits it was a term of his employment for more than 15 years that the respondent pays the cost of his travel from home to his place of work by purchasing an annual ticket from Irish Rail. This condition was unilaterally withdrawn in 2020 and has not been restored. Nor was he notified in writing of this change to his terms of employment.

Prior to the Covid pandemic he worked forty hours per week. In March 2020 he was laid off for 5 weeks and received the PUP payment. In May 2020 he returned and was told the respondent would no longer be paying for his rail ticket. In September 2020 he was put on part-time work, 20 hours per week), while two other employees stayed on full time hours. He submits he suffered a significant financial loss in two respects. The loss of half his working hours for 22 months amounts to €22,130 and loss of his rail ticket for the same period amounts to €4,400.

CA-00049644-001; Terms of Employment (Information) Act 1994: the former Director of the respondent confirmed that the rail ticket had been paid for by the company. Because of the Covid pandemic in March 2020 they ceased trading for 6-8 weeks. When they re-opened the two other employees came back full-time and the complainant was given 50% of his hours. He was given reduced hours because the business changed when creches opened again and they needed to make more deliveries and the complainant could not drive.

CA-00049644-002 & CA-00051493-001; Payment of Wages Act 1991: the former Director of the respondent confirmed that the rail ticket had been paid for by the company. Because of the Covid pandemic in March 2020 they ceased trading for 6-8 weeks. When they re-opened the two other employees came back full-time and the complainant was given 50% of his hours. He was given reduced hours because the business changed when creches opened again and they needed to make more deliveries and the complainant could not drive.

CA-00049644-001; Terms of Employment (Information) Act 1994: it is accepted that for around 15 years the respondent paid for an annual rail ticket for the complainant. They stopped paying for the ticket in March 2020. The complainant referred his claim to the Workplace Relations Commission on 11 April 2022.

This complaint only relates to the change in the complainant’s terms of employment when his annual rail ticket was not renewed in March 2020. Under Section 41 (6) & (8) of the Workplace Relations Act, a complaint must be taken within a maximum period of 12 months of the event taking place:

(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.

…

(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.

In this case the alleged breach took place two years before the claim was lodged and is therefore out of time. Accordingly, I conclude the complaint is not well founded.

CA-00049644-002 & CA-00051493-001; Payment of Wages Act 1991: there are twoparts to this complaint. Firstly, in relation to the withdrawal of the annual rail ticket. As set out above this complaint was referred two years after the withdrawal took place and I conclude CA-00049644-002 to be out of time and therefore not well founded.

Secondly, in relation to the 50% reduction in hours in September 2020. This arose out of a change in business practices, caused by the Covid pandemic. This appears to have been caused as the respondent undertook more deliveries than previously and the complainant was unable to drive. These arrangements continued until July 2022 when the respondent stopped trading and the complainant was let go. As set out above, in accordance with the time limits in the Workplace Relations Act this claim is out of time and is therefore not well founded.

CA-00049644-001; Terms of Employment (Information) Act 1994: for the reasons set out above this claim is not well founded.

CA-00049644-002 & CA-00051493-001; Payment of Wages Act 1991: for the reasons set out above these complaints are not well founded.

Out of time