Adjudication Reference: ADJ-00043457
Parties:
| Complainant | Respondent |
Parties | Ionela Roxana Simon | RCF Logistics Limited |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Daniel O Reilly Citizens Information | Ellen Walsh Peninsula |
Complaint(s):
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-00054146-001 | 15/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00054146-003 | 15/12/2022 |
Date of Adjudication Hearing: 28/08/2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 7 of the Terms of Employment (Information) Act 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as a Warehouse Picker with the respondent from the 29th.November 2021 to theth March 2022.She submitted the respondent was in breach of the Act for failing to furnish her with a written statement of her terms and conditions of employment. The respondent’s representative asserted the complaint was out of time and that there was no jurisdiction to investigate it. |
Summary of Complainant’s Case:
The claimant’s representative submitted as follows :
A. Introduction
Ms Ionela Roxana Simon (Complainant) was recruited in Romania and came to Ireland to work on 28.11.2021. She was employed as Picker in Primeline Logistics from 29.11.2012 to 11.03.2022. She was never provided with a written Terms and Conditions of Employment. Her employment was terminated without a statutory notice of one week and she received no payment for annual leave.
B. Background facts The Complainant was a victim of the unfair and unethical treatment as a foreign worker by the Respondent. She experienced dishonest and misleading tactics employed by the Respondent during the hiring process and throughout the course of employment. These disingenuous employment practices, which included intentionally withholding important information, providing false promises, and manipulating the employment relationship aimed at benefiting the Respondent at the expense of the client and included: • Misleading Job Descriptions Job advertisement and job offer inaccurately represented accommodation. The Complainant was enticed to accept job offer in Ireland by false promises of accommodation and once she arrived to Ireland, she found herself in substandard living conditions, in a house that was infested with mice, plaster falling off the walls. The accommodation provided was overcrowded (5 people shared 1 double bedroom) and remote, 4 miles from a town. In February 2022, she was moved to other accommodation in Portlaoise – a 2 bedroom house which slept 8 people. There were 4 people sleeping in the kitchen area on one double and 2 single beds. - Rent was €150 per week per person.
• Unethical Fees: The Complainant was required to pay €100 to open bank account and obtain PPSN – evidence of communication provided. • Non-Disclosure of Terms: Respondent intentionally withheld important information about terms, such as duration and additional cost associated with commute. She had to pay €60 per week for transport. The Complainant was provided with no contract of employment.
· The Respondent did not inform the Complainant that they had to register with revenue. The Complainant was advised that the employer would pay back the emergency tax deducted from the complainant’s wages throughout her employment. She did not receive holiday pay or bank holiday pay. She was given 3 days’ notice of termination of employment. During a period of lay-off in February 2022, the Complainant was requested to work in Respondent’s own home to wash, cook, clean etc. for his wife, feed his animals.
• The Respondent engaged in illegal practices of withholding part of the Complainant’s wages: payment was made through another person’s bank account – Complainant had to pay a work colleague to access/withdraw her money through their bank account.
C. Conclusions
The Complainant was a victim of foreign workers exploitation by the Respondent. This traumatic experience has caused a great deal of stress and hardship to Ms Ionela Roxana Simon. Our client was entitled to one week statutory notice and a written statement of the terms and conditions of employment as set out in the legislation.
The complainant’s representative asserted that the complainant found herself in a very vulnerable position with no English and asserted that she had been exploited as a migrant worker. He submitted that the case was a matter of public interest because of the manner in which the claimant had been treated by the respondent and he referenced the matter of notice, annual leave and a requirement that the complainant pay the respondent to acquire a PPS number. He also referred to substandard living conditions and photographs of same were presented at the hearing. It was submitted that the respondent was still recruiting workers. The complainant was not given a contract and had no English whatsoever when she arrived in Ireland. It was asserted that the instant case had to be distinguished from the other cases relied upon by the respondent as in this case the respondent deliberately sought to recruit foreign migrant workers with little or no English .
In her direct evidence the claimant asserted that when she commenced employment , all of the workers were Romanian and she was asked at her interview if she knew the numbers between 1-10 .The claimant stated that the respondent said he only wanted Romanian workers and had sought to recruit workers from the same small deprived town in Romania .The claimant said she did not want any other worker to be treated the way she was treated .She said that when she finished working for the company she had no PPS number , she had been on emergency tax – the claimant said she was scared – that she had little English .Her partner had English but not good English. She thought that coming from Romania she would be perceived as causing trouble. The claimant said she was stressed and scared and afraid she would do something wrong. She said she was always scared of the respondent. The claimant said when she got her PPS she learned that she had not been registered with the respondent company.
Under cross examination the complainant was questioned about her fluency in English and about having worked previously in Ireland. She was questioned as to why she did not submit her complaint within the statutory time limit and it was put to her that she had sufficient English to lodge a complaint. She was questioned as to why she did not lodge a complaint when she left the employment- her complaint was received on the 15th.December 2022 but her employment had ended on the 8th.March 2022.It was put to the claimant that she said she was afraid to make a complaint but all of a sudden became unafraid. She was asked to explain how suddenly she agreed to make a complaint.
It was submitted that the claimant was unable to access revenue without a PPS number and consequently was unable to enforce her rights by virtue of not being on the revenue system. The claimant had never been told that she should register with Revenue. It was submitted that these same employment practices persist to this day. It was contended that if the complaint was out of time it did not mean that the complaint was wrong. It was submitted that the facts speak for themselves – this was a matter of public interest and it was submitted that by not providing a contract of employment , the respondent could treat his workers any way he liked.
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Summary of Respondent’s Case:
The respondent’s representative submitted as follows :
Background 1. The Respondent is a logistics company which operates its head office in county Laois. 2. The Claimant was employed as a warehouse cleaner from the 29/11/2021 to the 09/03/2022 (Revenue cessation date). Her final working date was 08/03/2022. 3. The Claimant has taken a single claim, alleging she did not receive her Terms and Conditions of Employment. Preliminary issue. Exceeded time limit. 4. This complaint has been brought after a period of nine months and one week from the end of the Claimants employment. Accordingly, they are grossly out of time to be heard by the Commission per the Workplace Relations Act 2015. 5. Whilst it is accepted this time limit may be extended further by a period of 6 months, the Respondent submits that the case of Cementation Skanska v Carroll, DWT0338, must be followed, wherein the Court articulated the test pertaining to time limits by stating: "It is the Court's view that in considering if reasonable cause exists, it is for the Appellant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Appellant at the material time. The Appellant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time." 6. Specifically, Redmond on Dismissal Law (3rd Edition, 2018) at Paragraph 21.1 states that, ''The case law consistently reveals that inadvertence on the part of a firm of Solicitors will not be accepted as excusing a delay." 7. This approach was recently confirmed by this Court in the matter of Pat the Baker-v Conor Brennan TU/17/24. 8. Accordingly, it is the Respondents respectful submission that the Claimant had ample opportunity to seek legal advice, seek information in her native language online or speak to members of her community to establish her rights. 9. Had she sought legal advice and those advisors had caused a delay that would not even be accepted, and it is submitted that not investigating or seeking advice at all falls below even that standard which the courts have held does not justify an extension. 10. In this regard, the Respondent refers to the following Supreme Court decision on time limits, albeit in the context of a complaint under the Employment Equality Acts, of County Louth VEG -v- Equality Tribunal [2016) IESC 40. Here the Court stated that; "If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been "lawfully referred" to the Tribunal, such that it may properly be investigated for redress purposes ... In addition, the statutory measure does not operate as a defence point or its equivalent only (see para. 13 supra). It must therefore be treated as a condition precedent to the exercise of the Tribunal's jurisdiction.” 11. Very similar to this case (and perhaps most relevant) is the matter of Andrzej Basiak v Classic Marquees Limited ADJ-00027416 wherein a claimant attempt to rely on his alleged poor English as a barrier to his contacting a solicitor and did himself not have legal knowledge. The Adjudicator in finding against him, stated; “in my view he has not demonstrated that his circumstances with regard to the English language, his legal knowledge or his ability to communicate with his Solicitor were any different on that day [the date of submission of his complaint to the WRC] than from any of the days previous. Accordingly, I cannot accept that there was anything new or particular about these reasons which explain or excuse the delay in the Complainant lodging his complaint within the six month time limit or which would allow me to say that “but for” these reasons the complaints would have been lodged on time.” 12. Accordingly, it is respectfully submitted the Claimants claim is out of time and does not warrant an extension of time. Determination of a preliminary point prior to the hearing of a substantive matter. 13. There is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached. In Mary Sheehy v Most Reverend James Moriarty UD1264/2008 the Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”. 14. In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’. 15. In the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”. 16. The Respondent reserves the right to tender further or better submissions up to and at the hearing of the matter. The respondent’s representative asserted that the test that applied in terms of jurisdiction was reasonable cause and not the public interest. She said the matter of notice or holidays could not be advanced at this forum. She submitted that the accusations about living conditions were denied and contended that the claimant’s representative’s submissions were disingenuous and misleading. It was asserted that the respondent recruited both in Romania and in Ireland. Of the 20 employees, 19 had travelled from Romania or were Romanians living in Ireland. The representative submitted that the respondent was Romanian with a very poor background and wanted to give his colleagues a better chance in life and to get on their feet. He had offered to supplement their income when they were on emergency tax. She submitted that the determining factor in deciding on jurisdiction was not the fluency in English or the public interest but whether there was reasonable cause for the delay in making the complaint as set out in case law. It was submitted that the complainant was unable to explain why she did not make a complaint after she had left the employment. It was submitted that a language barrier did not constitute reasonable cause – nor was it provided for in case law. |
Findings and Conclusions:
While the complainant’s representative references the matter of notice and holidays, there is no reference to notice or holidays in her complaint form or in the body of the complaint. There is a duplicate complaint regarding the Terms of Employment Act and I am confined to dealing solely with this element of the complaint. Having reviewed the evidence presented at the hearing and taking account of the submissions made by both parties , I find that no reasonable cause has been advanced to justify the 9 month delay in making the complaint from the date the employment ended on the 8th.March 2022 to the 15th.December 2022.Accordingly , I must conclude that the complainant has not met the test set out in Cementation Skanska v Carroll DWT0338. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
As I have determined that the test for reasonable cause has not been met, I am obliged to conclude that the complaint is out of time and consequently I must decline jurisdiction. |
Dated: 10/11/2023
Workplace Relations Commission Adjudication Officer: Emer O'Shea