Complainant

Respondent

Parties

Walter  De Brito

Bidvest Noonan

Representatives

  Self

Ruth Heenan, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00050545-001

10/05/2022

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

CA-00050545-002

10/05/2022

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

CA-00050545-004

01/03/2022

The Complainant commenced  working as a cleaner for the Respondent organisation in 2013.  He has submitted complaints under the Unfair Dismissals Act 1977, the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997.

Preliminary Issue

The Respondent raised a preliminary issue in relation to the jurisdiction of the Adjudication Officer to hear the complaint and referred to the case of Sheehy v Moriarty (UD 1264/2008/RP 1080/2008) wherein it is stated:

“As detailed in Section 8(2) of the UD Acts 1977, as amended by Section 7(a) of the UD Amendment Act 1993 provides that claim for redress shall be in…within six months of the date of the relevant dismissal.  In addition, the Amendment Act provides that, if the EAT or RC is satisfied that ‘exceptional circumstances’ prevented the giving of the notice within the six - month period, then notice may be given within a period not exceeding twelve months from the date of dismissal.”

It is the Respondent’s view that the Complainant’s complaint is out of time. 

Brady and Kerr, in the second edition of their publication ‘The Limitation of Actions’ (in relation to computation of the relevant period state:

‘It seems clear, as a matter of English, that, by using the expression ‘beginning on’, the legislature intended that the date in question be included in the period.  It is also clear that the correct way to calculate the period within which the claim ought to have been initiated is to find the relevant date – say the effective date of dismissal- take the day and the date before it and then go forward six months.’ 

The alleged date of contravention in this case is 27 March 2020.  Within the period of 6 months allowed for under this Act, it is clear that the time limit for forwarding a complaint in relation to any alleged breach of the Unfair Dismissals Act is therefore 6 months; even allowing for the discretion given to the Adjudication Officer under section 8(2), the claim should have been served by March 2021 at the latest. The claim was submitted to the Workplace Relations Commission on 10 May 2022 a date far beyond the date of the alleged breach.  The Respondent therefore argues that the Adjudication Officer clearly does not have jurisdiction to hear this claim and that the claim should therefore fail.

Substantive Issue

The Complainant was employed by the Respondent from 4 June 2013 as a cleaner. The Complainant worked 20 hours a week. Over the course of his employment, the Complainant worked on a number of sites. The Complainant alleges he was unfairly dismissed by the Respondent. The Respondent refutes this claim. The fact of dismissal itself is refuted.  The Respondent contends that the Complainant transferred from the Respondent to another cleaning company. On 3 March 2020, a letter was issued from the Respondent to the Complainant informing him that, as it had lost the cleaning contract for the location in which he was working, his employment would transfer to the other cleaning company. The transfer occurred on 27 March 2020, as per the Respondent’s letter.

The Respondent referred to a segment from the Employee Liability Index for the transferee which it opened at the hearing. This segment shows the Complainant is included in the transfer.

The Respondent relies on the precedent established in A Contract Catering Staff v Catering Service Provider ADJ -00025550 in which the Adjudication Officer decided that:

“As the complainant was the subject of a transfer of undertakings from the employment of the Respondent in this case, her employment was not terminated by the Respondent and as such, the complaint of unfair dismissal against the Respondent is not well founded.”

The Respondent submits that the same conclusion can be drawn for this case.

Response to Complainant’s post-hearing submission

The Respondent referred to the  Complainant’s post-hearing submission of 22 March 2020, in which the Complaint asserted that he did not receive the Respondent’s correspondence of 3 March 2020 informing him of the transfer of undertakings as the Respondent sent the correspondence to his old address even though it was using his then current address on his payslip.  While the Respondent concedes that the evidence shows that payroll did have a new updated address for the Complainant, the Respondent submits that there is no evidence to show that the Complainant made the Respondent otherwise aware of his changed address.  The Respondent submits that it has no correspondence on record that shows the Complainant informed it of his changed address, nor, it would submit, has he proven this to date.  The Respondent submits that it is the employee’s responsibility to inform the employer where an address changes.

The Respondent submits that, post the transfer of undertakings, the Complainant remained on its system and was still registered as its employee with Revenue as the result of an administrative error. 

Conclusion

The Respondent submits there can have been no dismissal, fair or otherwise, as the Complainant was the subject of a transfer of undertakings.

The Complainant submits that he worked for the Respondent from 1 September 2013 to 27 March 2020 when the Respondent lost the cleaning contract for the location at which he was working.  The Complainant asserts that neither the Respondent nor the transferee held a meeting to explain the transition process or the working conditions and to ascertain which employees of the Respondent wanted to transfer.  The Complainant contends that he had to rely on WhatsApp messages to answer his questions, although, even then, some of his questions were not answered.

At the hearing, the Complainant produced a printout of a conversation he had with his manager via WhatsApp on 3 March 2020 in which she asked if he wanted to transfer to the transferee or remain with the Respondent.  The Complainant responded that he had not received an offer from the transferee.  He asked his manager if she could find another job for him and he mentioned locations which suited him.

The Complainant shared a printout of a follow-up conversation with his manager on 9 March 2020, in which his manager informed him that she had no work for him and in which she suggested that he should accept a transfer to the transferee.  The Complained asked his manager if he could have hours with both the Respondent and the transferee.  His manager responded “You can have both”.   The Complainant said that he knew of another cleaner who worked for both the transferee and the Respondent following the transfer of undertakings.  The Complainant said that he never worked for the transferee. 

The Complainant said that he was laid off by the Respondent on 27 March 2020 and went on the Pandemic Unemployment Payment (PUP).  The Complainant submits that during the lay off period, neither his manager nor any of the HR staff of the Respondent contacted him. He stayed on the PUP for a year until the Department of Social Protection contacted him to ask when he was returning to work.  The Complainant said that he was unable to contact the Respondent so he looked for alternative employment.  The Complainant said that he started a new job on 8 June 2021.  The Complainant said that as of the date of the hearing, he was registered as an employee of both his new employer and the Respondent on the Revenue system.  He felt that if his contract with the Respondent had been terminated, the Respondent would have informed Revenue and it would no longer be registered as his employer. 

The Complainant submits that on 27 January 2022, he sent a message to the Respondent’s HR querying if he was entitled to any holiday pay for the period he worked from January to March 2020.  He received an automated response advising him to contact his manager for any HR-related matters.  The Complainant asserts that due to the constant turnover of managers, he did not know if his manager pre-Covid would still be his manager.  The Complainant contends that during his 7 years of employment with the Respondent he had 12 managers.  The Complainant submits that he called the Respondent’s head office several times and that each time he reached an answering machine which provided no option for him to speak to HR. 

The Complainant submits that he took it upon himself to search for the Respondent’s HR contacts on LinkedIn and that he found a contact.  He emailed the contact on 21 March 2022 but did not receive a response.

The Complainant submits that on 21 July 2022, he received an email from the Respondent saying that he was still active on its system and asking him to confirm his resignation.  The Complainant submits that on 2 August 2022, he finally got a chance to talk to someone in the Respondent’s People and Personal Services Department (PPS).  After explaining his situation to the staff member to whom he spoke, she advised him to contact his manager.  The Complainant explained that he had not had any manager since before the pandemic so he did not have a manager to whom he could speak.  The staff member was unable to assist him.  The Complainant submits that, after the telephone conversation, he decided to send an email to PPS detailing his issue about holiday pay to have as a record.  PPS never responded to his email.

The Complainant submits that, on the same day, the Respondent sent him an automatic email inviting him to access its new employee portal.  The Complainant logged into the portal and created a ticket to report his issue with holiday pay.   The next day he received an email that his ticket had been opened.  However, on the following day, his ticket was closed without a response.  On the day of the hearing, the Complainant contended that he still had access to the Respondent’s portal and that the Respondent was named as his second employer on his tax cert.

The Complainant submits that he was unfairly dismissed by the Respondent.

Legislation

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

 “(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. “

From the evidence adduced at the hearing, it is clear that the Respondent refutes the Complainant’s assertion that he was dismissed by the Respondent.  Instead, the Respondent contends that the Complainant’s employment with the Respondent came to an end when the Respondent lost the cleaning contract for the Complainant’s work location and the Complainant’s employment was transferred to another cleaning company under a transfer of undertakings.  Accordingly, before I can consider the preliminary issue raised by the Respondent regarding time limits, I must first establish if the Complainant was dismissed by the Respondent.  If I establish that the Complainant was dismissed by the Respondent, I must then ascertain the date on which the dismissal took place.

I note the Respondent’s submission that it wrote to the Complainant on 3 March 2020 informing him that it had lost the cleaning contract for his work location and that his employment was to be transferred to a new cleaning company with effect from 27 March 2020.  I note that the Complainant contends that he did not receive the Respondent’s correspondence of 3 March 2020 as it had been sent to his old address, despite the fact that the Respondent was using the Complainant’s then current address on his payslips.  I further note that the Respondent accepts that it had two different addresses for the Complainant at the time of the transfer of undertakings but contends that it was the responsibility of the Complainant to ensure that the Respondent was using the correct address.  The Complainant clearly provided the Respondent with his then current address and the Respondent used this address on the Complainant’s payslips.  The responsibility for ensuring consistency of employee information across its systems clearly rests with the Respondent, not the Complainant.   In this case, the Respondent did not appear to have ensured that all of the contact information it held for the Complainant was up-to-date.  Accordingly, I accept that the Complainant did not receive the Respondent’s correspondence of 3 March 2020 due to the fact that the Respondent used an incorrect address.  I find, therefore, the Respondent cannot rely on the transfer of undertakings as a defence against this claim.

I further note the WhatsApp exchange between the Complaint and his manager on 3 March and 9 March 2020.  In the exchange on 9 March 2020, the Complainant asked if accepting the transfer “means I won’t be Noonan’s employee anymore? Or I still can have hours in both companies?” His manager responded “If available”.  While I accept the Respondent’s contention that the Complainant’s manager did not say anything about further hours, I am of the view that there is a level of ambiguity about this exchange which, on the face of it, could lead the Complainant to believe that his employment with the Respondent had not ended with the transfer of undertakings.

Post-Covid, the Complainant was unable to contact the Respondent, initially to confirm his return to work date and subsequently, to ask the Respondent to (i) remove him from its system when he got another job and (ii) clarify if any outstanding holiday pay was due to him. 

The Respondent is a large employer.  I would have assumed that when it transfers an employee to another employer under a transfer of undertakings, it would have procedures in place to ensure that the transferred employee was no longer active on its system and was removed as an employee for Revenue purposes.  This did not happen for the Complainant.  Instead, he remained active on the Respondent’s system and retained his registration as an employee of the Respondent for Revenue purposes.  The Respondent ascribed this state of affairs to an “administrative error”.   I have already found that the Complainant’s employment with the Respondent was not terminated due to a transfer of undertakings.  It would appear that, due to the Respondent’s somewhat lax administrative procedures, the Complainant’s employment with the Respondent was never formally terminated.  

In order to fall within the protections of the Unfair Dismissals Act, a complainant must show that he was dismissed by an employer.  However, as of the date of the hearing, the Complainant was still an active employee on the Respondent’s system and registered as its employee with Revenue.   Furthermore, no evidence was adduced to show that the Respondent terminated the Complainant’s employment in an unambiguous manner.  I find, therefore, that the Complainant was not dismissed by the Respondent. 

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that this complaint is not well founded.

The Complainant submitted a complaint under the Unfair Dismissals Act 1977 on 10 May 2022.  In the narrative relating to the complaint, the Complainant wrote that he had not taken holidays and had not been paid pro-rata for the for the time he worked from January to March 2020.

In his written submission to the hearing, the Complainant contended that the Respondent refused to pay him overtime rates when he worked extra hours.  The Complainant also contended that the Respondent always paid him as a cleaner even when he was carrying out the role of Team Leader, Site Supervisor or Porter.  The Complainant provided supporting documentation dated various dates in 2016. 

The Respondent submits that the numerous pay claims are outside the scope of the legislation under which the Complainant’s claim was taken, and would, in any case, be considerably out of time had claims under correct legislation been taken. 

Before I can consider the Complainant’s complaints under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997, there a two preliminary matters which I must first decide –

(i)     Has the Complainant submitted these complaints in time, and

(ii)    Do I have jurisdiction to hear these complaints.

First Preliminary Matter – Time Limits

The time limits for submitting claims to the Workplace Relations Commission under the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 are set out in section 41 of the Workplace Relations Act 2015.

Section 41 (6) of the Workplace Relations Act provides that:

“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.”

If a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2105:

“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.”

The Complainant submits that the Respondent breached the Payment of Wages Act 1991 in 2016 and the Organisation of Working Time Act 1997 in 2020 in relation to him.  The Complainant’s complaint form was received by the Director General of the Workplace Relations Commission on 10 May 2022.  Section 41 of the Workplace Relations Act 2015 confers on an Adjudication Officer the jurisdiction to investigate alleged breaches of employment rights legislation which occurred in the six months prior to the date of submission of the initiating complaint form – in this case, the six months from 11 November 2021 to 10 May 2022.  If the Adjudication Officer is satisfied that a complainant failed to submit their complaint in time due to reasonable cause, then the Adjudication Officer may extend the time limit to twelve months – in this case the twelve months from 11 May 2021 to 10 May 2022.  An Adjudication Officer has no power to extend the time limit beyond twelve months after the last alleged contravention. 

I find that, as the alleged breaches of the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997 in relation to the Complainant occurred prior to 11 May 2021, the complaints are out of time.

Given my findings in relation to the time limit, I am of the view that my investigation into these complainants has concluded.

CA-00050545-002 – Complaint under the Payment of Wages Act 1991

I declare that this complaint is not well founded.

CA-00050545-004 – Complaint under the Organisation of Working Time Act 1997

I declare that this complaint is not well founded.

Doubt as to dismissal – time limits