Complainant

Respondent

Anonymised Parties

A complainant

An Employer

Representatives

M P Guinness BL instructed by  O'Rourke Hayes Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00050487-001

05/05/2022

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

CA-00050487-002

05/05/2022

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

CA-00050487-003

05/05/2022

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

CA-00050487-004

05/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00050487-005

05/05/2022

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

CA-00050487-006

05/05/2022

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

CA-00050487-007

05/05/2022

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

CA-00050487-008

05/05/2022

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

CA-00050487-009

05/05/2022

The complainant commenced employment with the respondent on 9 September 2019 as a stable hand. Lodgings were provided which he shared with a work colleague in a space adjacent to the stables and horses. He was paid a weekly sum of €350 (€100 in cash and €250 by cheque). The complainant alleges inter alia that he was unfairly dismissed without notice on 9 November 2021 following a Workplace Relations Commission inspection at his place of employment.

Evidence of the Complainant

The complainant stated that he did not receive a payslip and was unaware of the gross sum earned per week. He received €250 by cheque and €100 cash on a weekly basis. On 31 March 2022 by letter, and pursuant to s 23 of the National Minimum Wage Act 2000, the complainant requested a written statement of his hourly rate of pay.

The complainant outlined that he worked 13 out of 14 days and that he daily hours of work varied slightly between summer and winter months.  Before his dismissal, his hours of work were as follows: Monday to Friday – 7.30am to 4.30pm or 5.30pm. The complainant might also have to work an additional hour from 9.30pm to 10.30pm to put rugs on the horses and check water etc., especially if the weather was cold. The complainant received a daily lunch break of 1 hour. On occasion the complainant might receive an additional 10-minute break.

The complainant submitted that on a Saturday and every second Sunday he commenced work at 7am and finished between 1.30pm and 2pm. On occasion depending on the weather, the complainant might also resume work at 3.30pm for an hour. He did not receive a break on a Saturday or Sunday. No Sunday premium was paid. The complainant worked these weekend hours on a public holiday also. The complainant stated that he did not receive an additional days’ pay on a public holiday. The complainant did not receive annual leave or holiday pay since commencing employment with the respondent.

The complainant stated that he did not receive a statement of terms of employment on commencement of employment. Following a Workplace Relations Commission inspection in August 2021, the complainant was told by Ms W, an employee of the respondent, to sign a document. The complainant outlined that this document did not reflect his actual terms of employment. Ms W explained it was just a formality and he must sign it. The complainant signed it as he feared for his job.

On 8 November 2021, the complainant’s detailed how his supervisor began to shout at him. She told the complainant to leave the yard as he was no longer wanted. The complainant expressed his concern that he had nowhere to live if he left the yard. He was then told by the supervisor: “I don’t want to see you here tomorrow and if I find you here, I will throw all your things out”. The complainant left on 9 November 2021. He was not paid for two days he had worked.

During his employment, the complainant repeatedly asked the respondent about his work permit. Each time the complainant was told by the respondent that he would be “given it soon”. In 2021 the complainant approached the Department of Enterprise, Trade and Employment about his work permit. There followed a Workplace Relations Commission inspection at the complainant’s place of work in August 2021 and a follow up inspection in October 2021. The complainant asserts that it was these inspections that prompted the respondent to dismiss him without notice.

The complainant sought the assistance of Migrants Rights Council of Ireland and An Garda Síochána. The complainant was housed in temporary and/or homeless accommodation and accordingly could not apply for work. The complainant eventually secured a Stamp 4 and commenced employment in May 2022, working five days per week, 9 hours per day, for an hourly rate of €13.

The respondent did not present a written submission to the Workplace Relations Commission. The respondent did not attend the hearing on 8 December 2022.

CA-00050487-001 (Hours of Work – Annual Leave)

Section 19(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”.  

The leave year for the purpose of determining if an employee received their statutory entitlements is that prescribed by the Act: a year starting on 1 April and ending on 31 March the following year. 

The complainant referred this complaint under the 1997 Act to the Workplace Relations Commission on 5 May 2022. Having regard to s 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the 6-month period ending on the date on which the complaint was presented to the Workplace Relations Commission. Therefore the period covered by the claim is the annual leave year commencing on 1 April 2021 to 31 March 2022. The complainant was dismissed on 9 November 2021 which falls within the cognisable period. The maximum statutory leave to which the complainant is entitled is four working weeks which for the complainant is 26 days. I calculate that between the period of 1 April 2021 and 9 November 2021 the complainant accrued 16 days annual leave. The uncontested sworn evidence of the complainant is that he did not receive his statutory entitlement to annual leave. In the absence of any evidence to the contrary, I find that this complaint is well-founded.

Section 27 of the 1997 Act provides:

“(1) In this section ‘relevant provision’ means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment”. (Emphasis added). Section 7(2) of the National Minimum Wage Act 2000 (“the 2000 Act”) modifies all existing contracts of employment, collective agreements or legislative provisions which provide for less favourable remuneration than is conferred by the 2000 Act. For the purposes of determining the maximum amount of compensation permissible under the 1997 Act (in relation to breaches under any of the following sections: section 6(2), sections 11 to 23, or section 26), I calculate two years remuneration as follows: €10.20 (national minimum wage in 2021) x 56 hours (average weekly hours over 52 weeks) x 104 weeks = €59,404.80.

In Nurendale Ltd v Suvac (DWT 19/2014), the Labour Court noted the respondent’s lack of regard for its legal obligations under the 1997 Act, and that the contravention was “a serious matter in that it potentially imperilled the Claimant’s health and safety at work”.  In Connaughton & Sons Landscaping Ltd v Marcin Stolarczyk (DWT12107), the Court noted that a significant award of compensation is only appropriate where there has been a deliberate and conscious breach of a worker’s rights. In Stablefield Ltd Lacramioara Manciu (DWT1924) the Labour Court stated:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European Law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ, as it then was, made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions”.

I find that the respondent contravened s 19 of the 1997 Act and that this breach was a conscious and deliberate breach of the complainant’s rights under the 1997 Act. The respondent shall pay the complainant compensation of €16,305.60. This amount includes compensation of €1,305.60 for economic loss sustained (which I base on the national minimum wage applying in 2021 x 56 hours being the average working hours last worked by the employee before the cesser of employment), and compensation of €15,000 to deter against future infractions. The latter compensation is awarded for a breach of s 19 of the 1997 Act and is an amount that is just and equitable having regard to all the circumstances.

CA-00050487-002 (Terms of Employment)

Section 3(1) of the Terms of Employment (Information) Act 1994 (“the 1994 Act”) provides:

“An employer shall, not later than 2 months* after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment . . . .”  

A contravention of s 3 the 1994 Act is a subsisting and a continuing contravention if after the initial two-month* period the employee remains an employee not in possession of a statement.

The complainant was given a document entitled “Terms of Work and Training” following the Workplace Relations Commission inspection. The uncontested sworn evidence of the complainant is that this document did not reflect the true terms of the complainant’s employment. A copy of this document was furnished to the Workplace Relations Commission. On examining this document, I find that this document did not detail the particulars as required under s 3(1) of the 1994 Act and that this complaint is well-founded.

Section 7(2) of the 1994 Act (as amended) provides that an Adjudication Officer shall inter alia declare that the complaint was or was not well founded and order the employer to pay to the employee compensation of such amount as the Adjudication Officer considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

Section 7(2) of the 2000 Act modifies all existing contracts of employment, collective agreements or legislative provisions which provide for less favourable remuneration than is conferred by the 2000 Act. For the purposes of determining the maximum amount of compensation permissible under the 1994 Act, I calculate 4 weeks’ remuneration as follows: €10.20 (national minimum wage in 2021) x 56 hours (average fortnightly hours worked) x 4 weeks = €2,284.80.

I find that the respondent contravened s 3 of the 1994 Act and the respondent shall pay to the complainant compensation of €2,284.80.

(* now amended by Regulation 5(a)(i) European Union (Transparent and Predictable Working Conditions) Regulations 2022).

CA-00050487-003 (Weekly Rest)

Section 13(2) of the 1997 Act provides:

“Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period”.

Section 27 of 1997 Act provides:

“(1) In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In Nurendale Ltd v Suvac (DWT 19/2014), the Labour Court noted the respondent’s lack of regard for its legal obligations under the Organisation of Working Time Act 1997, and that the contravention was “a serious matter in that it potentially imperilled the Claimant’s health and safety at work”.

In Connaughton & Sons Landscaping Ltd v Marcin Stolarczyk (DWT12107), the Court noted that a significant award of compensation is only appropriate where there has been a deliberate and conscious breach of a worker’s rights. In Stablefield Ltd Lacramioara Manciu (DWT1924) the Labour Court determined that payment of compensation to the complainant for what the Court was satisfied was “a conscious breach” of the complainant’s rights is the most appropriate means of dealing with such breaches. The court added that regard must be had to a level of compensation that “is just and equitable, subject to a limit of two years’ pay”. The court noted as set out in Von Colson v Kamann (1984) ECR 1891 “sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive” and “must reflect the gravity of the breaches and should act as disincentives against future infractions”.

The uncontested sworn evidence of the complainant is that he worked 13 out of 14 days. The complainant outlined that he received only every second Sunday off. In the absence of any evidence to the contrary, I find that the respondent contravened s 13(2) of the 1997 Act in failing to provide the complainant with a rest period of 24 hours in each period of seven days and that this breach was a conscious and deliberate breach of the complainant’s rights under s 13(2) of the 1997 Act. The respondent shall pay the complainant compensation of €15,000 which is just and equitable having regard to all the circumstances.

CA-00050487-004 (Hours of Work/48)

Section 15 of the 1997 Act provides:

“An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months . . . .”

The uncontested sworn evidence of the complainant is that he worked more than 48 hours on average. The complainant detailed his hours of work as follows: Monday to Friday – 7.30am to 4.30pm or 5.30pm. The complainant might also have to work a further hour from 9.30pm to 10.30pm. The complainant received a daily lunch break of 1 hour. On a Saturday and every second Sunday, the complainant commenced work at 7am and finished between 1.30pm and 2pm. The complainant might also resume work at 3.30pm for an hour. He did not receive a break on a Saturday or Sunday. A calculation of the hours worked (excluding breaks) shows that the complainant was required to work more than 48 hours averaged over a four-month reference period. These working hours contravene s 15 the 1997 Act and in the absence of any evidence to the contrary, I find that this complaint is well-founded.

Section 27 the 1997 Act provides:

“(1) In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26 … (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

In Nurendale Ltd v Suvac (DWT 19/2014), the Labour Court noted the respondent’s lack of regard for its legal obligations under the Organisation of Working Time Act 1997, and that the contravention was “a serious matter in that it potentially imperilled the Claimant’s health and safety at work”.

In Connaughton & Sons Landscaping Ltd v Marcin Stolarczyk (DWT12107), the Court noted that a significant award of compensation is only appropriate where there has been a deliberate and conscious breach of a worker’s rights. In Stablefield Ltd Lacramioara Manciu (DWT1924) the Labour Court determined that payment of compensation to the complainant for what the Court was satisfied was “a conscious breach” of the complainant’s rights is the most appropriate means of dealing with such breaches. The court added that regard must be had to a level of compensation that “is just and equitable, subject to a limit of two years’ pay”. The court noted as set out in Von Colson v Kamann (1984) ECR 1891, “sanctions for breaches of Community Rights must ensure that they are effective, proportionate and dissuasive” and “must reflect the gravity of the breaches and should act as disincentives against future infractions”.

I find that the respondent contravened s 15 the 1997 Act in permitting the complainant to work more than an average of 48 hours per week calculated over a 4-month reference period and that this breach was a conscious and deliberate breach of the complainant’s rights under s 15 of the Act. The respondent shall pay the complainant compensation of €15,000 which is just and equitable having regard to all the circumstances.

CA-00050487-005 (Pay - NMW)

Section 24(1) of the National Minimum Wage Act 2000 (“the 2000 Act”) provides:

“For the purposes of this section, a dispute between an employee and his or her employer as to the employee’s entitlements under this Act exists where the 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 underpayment to the employee”.

Section 24(2) provides:

“The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015]— (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 . . . .”

The complainant requested a statement as required under s 23 the 2000 Act on 31 March 2022. The complainant did not receive a response to that request. Section 24(2) of the 2000 Act sets the limitation period for referring a complaint as six months from obtaining a section 23 statement or, where no statement is provided, six months after the expiry of the four-week period after requesting a statement.  Accordingly, I have jurisdiction to inquire into this complaint.

Section 14 of the 2000 Act provides that an employee is entitled, in any pay reference period, to an hourly rate that on average is not less than the national minimum hourly rate of pay. Section 2 of the 2000 Act defines pay as all amounts of payment and any benefit-in-kind as specified in Part 1 of Schedule 1, which includes the monetary value of board. Section 8(1)(b) of the 2000 Act stipulates that for the purposes of determining whether an employee is being paid not less than the minimum hourly rate of pay to which they are entitled, regard must be had to the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work whichever, in any case, is the greater number of hours of work. Working hours for the purposes of s 8 includes time spent on standby or on call at the place of work. Section 20 provides that the gross remuneration of the employee is divided by the total working hours for the purposes of determining whether an employee is being paid the minimum hourly rate of pay to which he or she is entitled under the 2000 Act. Section 22 provides that an employer shall keep such records as are necessary to show whether the 2000 Act is being complied with in relation to the employee and where an employer fails to keep such records, the onus of proving, in proceedings before an Adjudication Officer that the provision was complied with lies on the employer.

The uncontested sworn evidence of the complainant is that he did not receive the minimum hourly rate for the hours he worked. As the respondent did not attend the hearing, I have no submission regarding the value of lodgings. Further, there is no statement on hours of work as the respondent did not accede to the request for same. The complainant detailed his hours of work as follows: Monday to Friday – 7.30am to 4.30pm or 5.30pm. The complainant might also have to work a further hour Monday to Friday from 9.30pm to 10.30pm. The complainant received a daily lunch break of 1 hour on Mondays to Fridays. On a Saturday and every second Sunday, the complainant commenced work at 7am and finished between 1.30 and 2pm. The complainant might also resume work at 3.30pm for an hour on a Saturday and Sunday. The complainant did not receive a break on a Saturday or Sunday.

Section 8(1)(b) the 2000 Act requires that I have regard to “total hours” which the employee carried out work or is required to be available by the employer and is paid as if the employee is carrying out or performing the activities of their work “whichever, in any case, is the greater number of hours of work”.  The total hours that the complainant worked or was required to be available varied between summer and winter months. As the complainant worked 6 days one week and 7 days the following week on rotation, I have averaged hours of work over a fortnight. Based on the uncontested sworn evidence of the complainant, I find that the least number of hours that the complainant was required to work or to be available to work on a fortnightly basis to be 49.75 hours. I find that the maximum fortnightly hours the complainant was required to work or to be available for work to be 62 hours. These averages exclude the one-hour lunch break received Monday to Friday. I find that the complainant was required to work 56 hours per week on average over the summer and winter months.

The complainant received lodgings. The maximum amount that can be included for lodgings per week are detailed below.

Section 26(1) the 2000 Act provides:

“A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain-(a) a direction to the employer to pay to the employee-(i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates . . . .”

Section 52 of the Workplace Relations Act 2015 provides for amendments to various enactments including the 2000 Act. Section 26(1) of the 2000 Act now provides that where a complaint is upheld, the Adjudication Officer may award redress of arrears of pay in respect of “the period to which the dispute relates”. This does not appear to be defined by reference to the six-month period prior to lodgement of a complaint. I have followed the approach of the Labour Court in Sue Ryder Foundation Ireland Ltd v Maureen Meenagh (MWD05), which was subsequently applied in ADJ-00020327 and upheld by the Labour Court in MWD212. Accordingly, I find in this case that that the period for the calculation of arrears is the 9 September 2019 to 9 November 2021.

2019

This complaint covers a period of 16 weeks in 2019.

The national minimum hourly rate was €9.80 in 2019. The employee worked an average of 56 hours per week. Therefore the employee accrued an entitlement to pay under the 2000 Act to €8,780.80 (16 weeks x 56 hours = 896 hours x €9.80). 

The employee was paid €350 per week in 2019. The maximum amount allowed for lodgings per week in 2019 was €23.15. I calculate that the employee was paid a total of €5,970.40 in 2019 (€350 + €23.15 = €373.15 per week x 16 weeks).  This leaves arrears of €2,810.40 for 2019.

2020

This complaint covers a period of 52 weeks in 2020.

The national minimum hourly rate was €10.10 from 1 February 2020. The employee worked an average of 56 hours per week in 2020. Therefore the employee accrued an entitlement to pay under the 2000 Act to €29,327.20 in 2020 (5 weeks x 56 hours x €9.80 = €2,744) plus (47 weeks x 56 hours x €10.10 = €26,583.20) = €29,327.20).

The employee was paid €350 per week in 2020. The maximum amount allowed for lodgings per week in 2020 was €23.86 from 1 February 2020. I calculate that the employee was paid a total of €19,437.17 in 2020 (5 weeks x €373.15 = €1,865.75) plus (47 weeks x (€350 + €23.86) = €17,571.42).  This leaves arrears of €9,890.03 for 2020.

2021

This complaint covers a period of 44 weeks in 2021.

The national minimum hourly rate was €10.20 from 1 January 2021. The complainant worked an average of 56 hours per week in 2021. Therefore the complainant accrued an entitlement to pay under the 2000 Act to €25,132.80 (44 weeks x 56 hours x €10.20).

The employee was paid €350 per week in 2021. The maximum amount allowed for lodgings per week was €24.10. I calculate that the employee was paid a total of €16,460.40 in 2021 (€350 + €24.10 = €374.10 per week x 44 weeks).  This leaves arrears of €8,672.40 for 2021.

Section 26 of the 2000 Act allows for recovery of the arrears of pay. I therefore award redress of €21,372.83.

CA-00050487-006 (Pay – Sunday Premium)

Section 14 of the Organisation of Working Time Act 1997 provides:

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs”.

The uncontested sworn evidence of the complainant is that he worked every second Sunday and tha he did not receive compensation for Sunday working. In the absence of any evidence to the contrary, I find that the respondent contravened s 14 of the Organisation of Working Time Act by not paying the complainant compensation for Sunday working. The respondent shall pay to the complainant compensation of €1,000.

CA-00050487 – 007 (Unfair Dismissal)

The uncontested sworn evidence of the complainant is that he was told to leave his employment on 8 November 2021 as he was no longer wanted. The complainant contended that his dismissal arose because of a Workplace Relations Commission inspection after the complainant spoke to the Department about his work permit.

Section 6(1) of the Unfair Dismissal Acts 1977 -2015 (“the Acts”) provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Section 6(7) of the Acts provides that in determining if a dismissal is an unfair dismissal, regard may be had to: (a) the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) the extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

Section 7 of the Acts provides that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the Adjudication Officer considers appropriate having regard to all the circumstances: (a) re-instatement, (b) re-engagement or (c) compensation (if the employee incurred any financial loss attributable to the dismissal), as is just and equitable having regard to all the circumstances. The phrase ‘just and equitable in all the circumstances” allow for an Adjudication Officer to consider both mitigating and aggravating factors in the circumstances surrounding the dismissal.

The uncontested evidence of the complainant is that he was told to leave the yard immediately. This left the complainant not only without an income, but also with no roof over his head.  I find that the complainant’s dismissal was both substantially and procedurally unfair, and that compensation is the appropriate remedy in the circumstances of this case. I accept the complainant’s submission that he could not mitigate his loss until he received his Stamp 4 and left emergency accommodation. The complainant found new employment in May 2022, working five days per week, 9 hours per day for an hourly rate of €13.

Section 7(1)(c)(i) stipulates that where an employee incurs financial loss attributable to the dismissal, an award of compensation can be made in respect of the loss as is just and equitable having regard to all the circumstances. Financial loss includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.

For the purposes of calculating loss, I have had regard to s 7 of the Acts and S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977. I have also had regard to s 7(2) of the National Minimum Wage Act 2000 which provides:

“A contract or agreement or an enactment in force immediately before the commencement of this section that provides for the entitlement to pay for an employee less favourable than that to be provided in accordance with this Act is hereby modified to the extent necessary to provide that the employee’s entitlement after the commencement of this section shall be not less favourable than that to be provided in accordance with this Act”.

The national minimum hourly rate was €10.20 at the time of the complainant’s dismissal. Accordingly, I calculate loss to be €14,280. This is calculated as follows (25 weeks x 56 hours per week x €10.20 = €14,280).

CA-00050487 – 008 (Minimum Notice)

Section 4(1) of the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) provides:

“An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. (2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks”.

Section 12 (1) of the 1973 Act as amended provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”.

The uncontested sworn evidence of the complainant is that he did not receive notice on termination of employment. I find that the complainant was dismissed without notice and the complaint under the 1973 Act is well founded. The complainant had more than 2 years’ service at the time of his dismissal and accordingly is entitled to 2 weeks’ notice.

The Second Schedule to the 1973 Act details the rights of an employee during a period of notice. Section 5 (1) provides:

“. . .  an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment . . . .”

An implied term of every contract of employment includes terms provided by statute. The employee had a statutory right to the national minimum wage. The national minimum hourly rate was €10.20 at the time of the complainant’s dismissal. I calculate the complainant’s loss under the 1973 Act as follows: 2 weeks x 56 hours x €10.20 = €1,142.40.

CA-00050487 – 009 (Hours of Work – Public Holidays)

Section 21(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay”.

The complainant referred his complaint under the 1997 Act to the Workplace Relations Commission on 5 May 2022. Having regard to s 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the 6-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore the cognisable period covered by the claim is the 6-month period from 6 November 2021 until 5 May 2022. The complainant was dismissed on 9 November 2021. No public holidays occurred between the 6 November 2021 and the date of dismissal.

I find that the respondent has not contravened s 11 of the 1997 Act within the cognisable period and accordingly, this complaint is not well-founded. 

CA-00050487-001 (Hours of Work – Annual Leave)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €16,305.60 (this amount includes compensation of €1,305.60 for economic loss sustained, and compensation of €15,000 to deter against future infractions).

CA-00050487-002 (Terms of Employment)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €2,284.80.

CA-00050487-003 (Weekly Rest)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €15,000.

CA-00050487-004 (Hours of Work/48)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €15,000.

CA-00050487-005 (Pay - NMW)

In accordance with s 26 of the 2000 Act, I direct that the respondent pays to the complainant an award of arrears of €21,372.83, being the difference between the amount paid during the cognisable period and the minimum amount the employee was entitled to be paid under the 2000 Act.

CA-00050487-006 (Pay – Sunday Premium)

I decide that this complaint is well-founded, and the respondent shall pay the complainant compensation of €1,000.

CA-00050487 – 007 (Unfair Dismissal)

I decide that that complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €14,280.

CA-00050487 – 008 (Minimum Notice)

I decide that this complaint is well-founded, and the respondent shall pay the complainant the equivalent of 2 weeks’ pay = €1,142.40.

CA-00050487 – 009 (Hours of Work – Public Holidays)

I decide that this complaint is not well-founded.

Unfair dismissal. Conscious and deliberate breach of the Organisation of Working Time Act. National Minimum Wage. Terms of Employment Information Act.