Complainant

Respondent

Parties

Yuriy  Kapustyanyk

JBK Auto DAC trading as Kel Auto Solutions Ltd  

Representatives

Ekaterina Koneva

 Owen Fitzpatrick

Act

Complaint/Dispute 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-00040092-001

26/09/2020

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

CA-00040092-002

26/09/2020

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

CA-00040092-003

26/09/2020

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

CA-00040092-005

26/09/2020

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

CA-00040092-006

26/09/2020

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

CA-00040092-007

26/09/2020

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

CA-00040092-008

26/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040092-010

26/09/2020

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

CA-00040092-011

26/09/2020

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

CA-00040092-012

26/09/2020

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

CA-00040092-013

26/09/2020

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 was informed that he could not pursue a course of action in relation to both unfair dismissal and discriminatory dismissal and had to choose between the two courses of action.  He sought to pursue unfair dismissal in relation to a dismissal on 27 March 2020.

The complainant gave his evidence under oath, while a witness for the respondent undertook to give her evidence under affirmation.  The hearing was facilitated with the assistance of a Russian language interpreter provided by the WRC.

The initial hearing was taken up largely with the respondent strenuously indicating that the matter had been heard previously by the WRC and a name of an adjudicator was given.  The hearing was ultimately adjourned.  The name of the given for the previous adjudicator, although familiar to the WRC, was not a person who has ever been an adjudicator at the WRC, either internal or external. The hearing was rescheduled, and a second day of hearing took place.

On the day of the third hearing, the complainant’s representative indicated that there had been a death within her close family.  In the circumstances the respondent had no objection, and the Adjudicator adjourned the matter for another date.

On 18 February 2023, at the hearing the respondent forcefully indicated that they wished to attend the hearing by phone and to take part on an audio only basis.  From a technical perspective this non smart phone option is not possible anymore with the remote hearing software.  In these circumstances and considering that the witness for the respondent would be required to give evidence on screen, the adjudicator informed the parties that he was adjourning the matter for listing on a face-to-face basis.  The final day of hearing was held face-to-face in Lansdowne House, in Dublin.

In advance of the face-to-face hearing, the respondent indicated that the WRC and the Adjudicator were in breach of a number of pieces of legislation by holding a face-to-face hearing and indicated in advance that it would not be attending the hearing.  On the day, the in-person hearing started following a short delay to enable to respondent to attend.  However, when the respondent did not appear, given that they had confirmed that they had received notification, the hearing proceeded in their absence.

At the start of proceedings, the respondent clarified the company name and noted that the complainant was never dismissed and remained on the company’s books (although it was noted that he was not receiving pay).

CA-00040092-001 Annual Leave

The respondent indicated that it didn’t keep notes of records but that the leave year ran from January to January and that the complainant was entitled to 20 working days annual leave per year.  It noted that he was allowed to take 24 working days leave in 2019.

CA-00040092-002 Public Holiday

The respondent submitted that this complaint was made outside the six-month time limit envisaged by the Act.

CA-00040092-003 Payment in lieu of notice

The respondent submitted that the compliant was not entitled to a payment in lieu of notice as he was never removed from the company payroll.  He was not made redundant and was not dismissed.

CA-00040092-005 Change of Contract

The respondent submitted that there was never a change in the complainant’s terms and conditions of work.

CA-00040092-006 Terms and Conditions of Employment not provided

The respondent submitted that the complainant had a contract of employment.

CA-00040092-007 Statement of Terms and Conditions

The respondent submitted that the complainant had a contract of employment.

CA-00040092-008 Unfair Dismissal

The respondent submitted that the complainant was required to be laid off under the Government instructions regarding the handline of Covid 19.  It was submitted that he was rehired on 1 May 2020 and that no dismissal took place.

The respondent noted that the complainant was required to be laid off at the start of the Covid pandemic by the legislation in place at that time.  It submitted that this does not amount to a dismissal.  The respondent noted that it emailed its employees but that it had no email address or phone number for the complainant.  It submitted that logically everyone was aware of the situation and what the governments approach to Covid was at that time.  It submitted that the specific reason for the layoff of staff was to allow them to apply for the PUP payment.  It also submitted that there was no requirement to send notice to employees where there was a compulsory layoff.

CA-00040092-010 Employment Equality

The respondent submitted that this claim is a spurious complaint made to the WRC.

CA-00040092-011 Redundancy Payment entitlement

The respondent submitted that the complainant was never made redundant.

CA-00040092-012 Minimum notice

The respondent submitted that as the complainant was not let go, he was not entitled to minimum notice.

CA-00040092-013 No rights during notice period

The respondent submitted that as the complainant was not let go, he was not entitled to minimum notice.

The complainant submitted that he was employed in a number of companies and that his employment transferred to and through a number of employers before he became employed by the respondent.

CA-00040092-001 Annual Leave

The complainant rejected the respondent’s contention that he was given 24 days annual leave in 2019 and noted that he was not provided with any record of annual leave.  He stated that he received 3 payments in July 2019 and that he was owed 3.7 days annual leave.

CA-00040092-002 Public Holiday

The complainant submitted that he did not receive his entitlement to a public holiday in August 2019

CA-00040092-003 Payment in lieu of notice

The complainant submitted that he did not receive a payment in lieu of notice when he was let go.

CA-00040092-005 Change of Contract

The complainant submitted that he did not receive notification of a change to his contract

CA-00040092-006 Terms and Conditions of Employment not provided

The complainant submitted that he did not receive a contract of employment in a language he understood

CA-00040092-007 Statement of Terms and Conditions

The complainant submitted that was never provided with a statement of his terms and conditions of employment.

CA-00040092-008 Unfair Dismissal

The complainant submitted that he was dismissed when he was let go from his job.  He was not contacted regarding temporary layoff and was not contacted regarding any rehire.  He was never offered his position back. 

The complainant submitted that he was unfairly dismissed when he was let go on 27 March 2020.  He submitted that he received no paperwork from the employer regarding his layoff or subsequent return to work.  In the circumstances he submitted that he was unfairly dismissed.

CA-00040092-010 Employment Equality

The complainant submitted that he was discriminated against on the basis of having a hernia.  The complainant submitted that he was not pursuing an age or race discrimination complaint.  He submitted that his employer inferred that he had a disability.

The complainant submitted that he went for a holiday but had a hernia and submitted three sick leave certificates.  He submitted that his employer was not happy and sought to verify the illness from the complainant’s GP.  The complainant submitted that he was not allowed to return to work. The complainant submitted that the respondent is entitled to refer him to its own doctor but not to contact his doctor.

The complainant submitted that he wasn’t allowed to get back to work following a period when he was off sick. His doctor approved that he was fit to work, and he feels that he was suspended unreasonably.

CA-00040092-011 Redundancy Payment entitlement

The complainant submitted that he did not receive the redundancy payment to which he was entitled.

CA-00040092-012 Minimum notice

The complainant submitted that he did not receive his minimum period of notice.

CA-00040092-013 No rights during notice period

The complainant submitted that he did not receive his rights during his notice period.

Complainant’s evidence

The complainant gave evidence that he went on holiday in July of 2019. He had a hernia operation and an elective operation in the Ukraine and when he returned to Ireland he decided to return to work. He gave his employer a certificate from his doctor showing that he was fit for work.

The complainant indicated that he told his employer that he needed to go for elective surgery and sought to take leave to have the operation done in the Ukraine. He notified his employer before he took leave.

The complainant confirmed that he was returning to the Ukraine to undergo cosmetic surgery. He stated that he had a hernia the day before he was due to go on leave. He confirmed that he did not notify his employer of the hernia at the time but only upon his return to work.  He indicated that the hernia was only a temporary blockage and did not amount to a disability. He stated that his employer inferred that it was disability, and illegally contacted his GP to clarify matters without the complainant’s permission.

The complainant confirmed that he last heard from his employer upon his return from holidays in October 2019.

As regards loss of earnings and attempts to mitigate his loss, the complainant confirmed that he got another job in February 2020. He tried to apply for social welfare as his illness benefit finished in October. He said that the social welfare officer needed a letter of termination.

The complainant gave evidence that he started to receive some income in February 2020 but that he was in search of a light work given his physical ability and that he was looking for compensation in relation to these matters.

The complainant submitted that he was employed with a number of companies before his employment crystalised with the respondent.  As there are no proceedings regarding a Transfer of Undertakings, I cannot comment on such matters, but I am satisfied that the complainant is an employee of the respondent.

CA-00040092-001 Annual Leave

The complainant submitted that he was still owed 3.7 days annual leave. The respondent submitted that he received 24 days annual leave but submitted that it did not have any record of the leave.

Section 19 of the Organisation of Working Time Act includes the following:

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), 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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

The complainant submitted that he was out sick from early July to 16 October 2019.  He submitted that he was out sick in the Ukraine.  He submitted three medical certificates from an Irish based medical practitioner to cover this period on 16 October 2019.  The complainant gave evidence that his employer sought to contact the GP who had issued these certificates but that he did not give permission for his employer to do so. The evidence of the complainant was that his employer sought to verify those certificates.

In circumstances where the employer sought to verify medical certificates issued three months but was unable to do so I am not satisfied that the complainant has established that he had accrued an entitlement to annual leave of the time he was off.  In the circumstances Section 19(1)(c) is the appropriate method of calculation of the annual leave accrued.

The complainant has provided neither documentary evidence nor oral testimony as to the level of annual leave that he accrued.  In the circumstances I find that the complaint is not well founded.

CA-00040092-002 Public Holiday

This complaint relates to the Public Holiday that arose in August 2019, the complaint was lodged with the WRC on 26 September 2020 and falls outside the timeframe envisaged by the Act.  Section 41 (6) & (8) govern the timeframe for submission of complaint to the WRC and are worded as follows:

(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.

Having regard to Section 41 (6) & (8), I find that this complaint has been lodged outside of the timeframe allowed by the Act and on that basis I am precluded from making a decision in relation to this matter.

CA-00040092-003 Payment in lieu of notice

The complainant submitted that he was dismissed on 27 March 2020.  Given that his employer put him on layoff in accordance with the directions of the Government under its Covid strategy, I am not satisfied that he has established an entitlement to a notice period or payment in lieu of such a period.  Accordingly, I find that the complaint is not well founded.

CA-00040092-005 Change of Contract

The complainant submitted that his contract changed when he sought to return to work in October.  As the evidence points to the employer trying to verify his medical certificates, I am not satisfied that he has established that a change to his contract occurred and therefore I find that the complaint is not well founded.

CA-00040092-006 Terms and Conditions of Employment not provided

The complainant submitted that he was not provided with a contract of employment outlining his terms and conditions of employment.  The respondent submitted that he was.  The complainant submitted that the contract to which the respondent referred was written in Ukrainian and the complainant is a Russian speaker and submitted that he never received a contract either in a language he understood or in English, the language of his workplace.  This account was not disputed.  In the circumstances I am satisfied that the complaint is well founded. Accordingly, I order the respondent to pay the complainant the equivalent of four weeks wages - €2,101.96, (i.e. €525.49x4) which I consider to be just and equitable having regard to all the circumstances.

CA-00040092-007 Statement of Terms and Conditions

This complaint is encompassed by the previous complaint.

CA-00040092-008 Unfair Dismissal

The complainant submits that he was unfairly dismissed when he was laid off in March 2020.  The respondent submitted that the layoff occurred as a result of the restriction imposed by the Government in response to the Covid pandemic.  At the start of the Covid pandemic, the government required all employers to facilitate its employees to work from home or where this was not possible, and if workers were not front-line workers, it required that such workers did not attend at their place of employment.  The Government introduced various pieces of legislation to address this issue.

Section 6(4) of the Unfair Dismissals Act states that

(4) 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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

I accept that the appropriate paperwork was not issued but I do not accept the complainants suggestion that he did not know what was going on at that point in time.

Having regard to the Government instruction regarding lockdown which came into effect on 27 March 2020, I am satisfied that section 6(4)(d) of the Unfair Dismissals Act applies in relation to the termination of the employment relationship on that date and that accordingly it cannot be deemed an unfair dismissal.

CA-00040092-010 Employment Equality

The complainant stated that he was discriminated against when his employer sought to query the medical certificates he submitted, and that the respondent discriminated against him when they inferred that he had a disability.

I note that the complainant took leave for a cosmetic procedure and immediately before taking the leave he had a hernia in or around 2 July 2019.  I note that the complainant did not inform the respondent of his illness until some time in October 2019.  I note that the complainant submitted three medical certificates from an Irish based medical professional covering the three-month period when some of that period was spent in Ukraine.  I note that the complainant objected to the employer verifying the certificates with his Irish-based GP.

Having regard to the respondent’s actions in trying to verify medical certificates relating to an illness that occurred in one country but covered by a medical certificate issued in another country, I do not find that this amounts to discrimination but rather is a prudent approach by a reasonable employer in such circumstances, particularly when simply verifying the issue of medical certificates.  I note that the complainant submitted that the employer should have referred him to its medical examiner but note that as he did not claim that he had a disability, the reference seems to have been, on the basis of the complainant’s evidence, the respondent simply trying to verify the certificates.

Section 85A(1) of the Employment Equality Act states as follows:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Having regard to the written and oral evidence presented in relation to this complaint, I am not satisfied that the complainant has established facts from which it may be presumed that there has been discrimination in relation to him.  In the circumstances, I find that the complaint is not well founded.

CA-00040092-011 Redundancy Payment entitlement

Section 12 of the Redundancy Payments Act states as follows:

Right to redundancy payment by reason of lay-off or short-time.

12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

Section 12A states as follows:

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

This section was in force at all material times under consideration in relation to this complaint.  Section 12A temporarily suspended the provisions of Section 12 of the Redundancy Payments Act for the duration of the emergency period only in respect to an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as consequence of, government policy to prevent, limit, minimise or slow the spread of infection of Covid-19. Such an employee was not entitled to give notice of his intention to claim redundancy during the emergency period.

I am not satisfied that the complainant has established an entitlement to a redundancy payment and therefor I find that he is not entitled to succeed with his appeal.

CA-00040092-012 Minimum notice

Having regard to all the written and oral evidence presented and having regard to my decision that the complainant was not dismissed, I am satisfied that the complainant has not established an entitlement to minimum notice.  I therefore find that the Act was not contravened.

CA-00040092-013 No rights during notice period

Having regard to all the written and oral evidence presented and having regard to my decision that the complainant was not dismissed, I am satisfied that there was no entitlement to a period of notice in this case.  I therefore find that the Act was not contravened.

CA-00040092-001 Annual Leave

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

CA-00040092-002 Public Holiday

Having regard to the written and oral evidence in relation to this complaint, my decision is that the matter was submitted outside the time limits provided for in the Act.

CA-00040092-003 Payment in lieu of notice

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

CA-00040092-005 Change of Contract

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

CA-00040092-006 Terms and Conditions of Employment not provided

Having regard to the written and oral evidence in relation to this complaint, my decision is that this complaint is well founded, and I order the respondent to pay the complainant the equivalent of four weeks wages - €2,101.96, (i.e. €525.49x4) which I consider to be just and equitable having regard to all the circumstances.

CA-00040092-007 Statement of Terms and Conditions

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant is encompassed by the previous complaint, CA-00040092-006.

CA-00040092-008 Unfair Dismissal

Having considered all the written and oral evidence in relation to this complaint and having regard to the Section 6(4)(d) of the Unfair Dismissals Act, 1977, my decision is that the complainant was not unfairly dismissed.

CA-00040092-010 Employment Equality

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

CA-00040092-011 Redundancy Payment entitlement

Having regard to the written and oral evidence in relation to this complaint my decision is to disallow the complainant’s appeal.

CA-00040092-012 Minimum notice

Having regard to the written and oral evidence in relation to this complaint, my decision is that the Act was not contravened.

CA-00040092-013 No rights during notice period

Having regard to the written and oral evidence in relation to this complaint, my decision is that the Act was not contravened.

Organisation of Working Time Act – not well founded - Payment of Wages – time limits - Terms of Employment Information – language of contract – well founded - Unfair Dismissal – finding of unfair dismissal precluded by legislation in  the circumstances - Employment Equality – not well founded - Minimum notice – no entitlement.