ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042243
Parties:
| Complainant | Respondent |
Parties | Gerard Redmond | Buckley Property Maintenance Services |
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Representatives | Self | David Kearney, HR Brief Ltd |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00052934-001 | 22/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052934-002 | 22/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052934-003 | 22/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052934-005 | 22/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052934-006 | 22/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052934-007 | 22/09/2022 |
Date of Adjudication Hearing: 16/05/2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
The Complainant was employed as a General Operative by the Respondent from 15 November 2021 until 13 May 2022 when his employment was terminated by the Respondent. The Complainant worked a 39-hour week and was paid €14.93 per hour. |
Summary of Complainant’s Case:
The Complainant submits as follows: CA-00052934-001 Annual Leave The Complainant asserts that he did not receive all of his annual leave entitlements. CA-00052934-002 Terms of Employment The Complainant submits that he did not receive a statement of his terms of employment.
CA-00052934-003 Terms of Employment The Complainant asserted that his terms and conditions were changed as he was not given payslips and his wages were paid directly into his bank account. CA-00052934-005 Minimum Notice The Complainant submits that he was not given written notice of his dismissal. The Complainant asserts that he was told on a Friday 13 May 2022 that he was not needed for the following Monday and was not contacted again. CA-00052934-006 Minimum Notice The Complainant submits that he did not receive all of his rights during the period of notice, but he did not provide specific details in relation to his complaint. CA-00052934-007 Minimum Notice The Complainant submits that he was not given any notice that his employment would be terminated on 13 May 2022. He says that on one occasion the Respondent said, “If you’re late again, this isn’t going to work”. |
Summary of Respondent’s Case:
The Respondent submits as follows: CA-00052934-001 Annual Leave The Respondent concedes that the Complainant is owed 33.11 hours of annual leave. The Respondent undertook to pay the outstanding annual leave within two weeks of the date of the hearing. CA-00052934-002 Terms of Employment The Respondent submits that a signed statement of his terms and conditions was issued to the Complainant on 19 November 2021. CA-00052934-003 Terms of Employment The Respondent rejects that it altered the terms of employment without written notification. CA-00052934-005 Minimum Notice The Respondent asserts that it warned the Complainant a number of times about his timekeeping and, in particular, on Thursday 5 May 2022 the Complainant was warned that if he was late again, he would be let go. Unfortunately, the Complainant was late again on Friday 6 May 2022. The Respondent then terminated the Complainant’s employment on Friday 13 May 2022.
CA-00052934-006 Minimum Notice The Respondent submits that the Complainant has failed to set out the particulars of this claim. CA-00052934-007 Minimum Notice The Respondent submits that the Complainant did receive notice by virtue of the fact that the Complainant was put on notice on Thursday 4 May 2022 that if he was late again his contract would be terminated. |
Findings and Conclusions:
CA-00052934-001 Annual Leave At the hearing, the parties were in agreement that the Respondent owed the Complainant €33.11 hours of annual leave. I note that the Respondent undertook to pay the Complainant his out outstanding annual leave within two weeks of the date of the hearing. CA-00052934-002 Terms of Employment Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides: “(1) 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 … particulars of the terms of the employee's employment, …” I am not satisfied that the Complainant was given a copy of his terms and conditions by the Respondent. I am of the view that the Respondent breached section 3 of the Act when it did not give the Complainant a copy of his Term and Conditions. I find, therefore, that this complaint is well founded. CA-00052934-003 Terms of Employment I note that the Complainant submits that he did not receive payslips during his employment with the Respondent. I would point out that issues regarding payslips fall within the remit of the Inspection Services of the WRC, not the Adjudication Services. The Complainant also submits that he was paid directly into his bank account. He did not explain how this was in breach of his terms and conditions. I find, therefore, that this complaint is not well founded. CA-00052934-005 Minimum Notice CA-00052934-007 Minimum Notice Section 4 (2)(a) of the Minimum Notice & Terms of Employment Act 1973, as amended, obliges the Respondent to give the Complainant one weeks’ notice of the date of termination of the contract of employment on the basis of his service. The Complainant asserts that he should have been provided with written notice that his employment would be ending on 13 May 2022. The question of the necessity for written notice was addressed in the Supreme Court judgment in Bolands Ltd (In Receivership) v Ward, (1988) I.L.R.M. 382where Henchy J. found that the form of notice is not provided for in the Act of 1973 and does not even require it to be in writing: “… The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given—whether orally or in writing, in one document or in a number of documents—conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum …” It is clear from the above, that while notice is not required to be in writing, it must be unambiguous. The employee must be in no doubt that his employment will finish on a particular date. I am of the view that the Complainant was not properly on notice that his employment would end on 13 May 2022. I find, therefore that this complaint is well founded. CA-00052934-006 Minimum Notice I am of the view that the Complainant did not provide any details in relation not this complaint and, therefore, it is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00052934-001 Annual Leave I declare that this complaint is well founded and I direct the Respondent to pay the Complainant the sum of €494.33 in respect of his outstanding annual leave. CA-00052934-002 Terms of Employment In accordance with my powers under Section 7 of the Terms of Employment (Information) Act 1994, I find that the Respondent has contravened section 3 of the Act and that this complaint is well founded. I direct the Respondent to pay to the Complainant compensation in the amount of €1,164.54 being the equivalent of two weeks’ pay in respect of the contravention. CA-00052934-003 Terms of Employment I find that this complaint is not well founded.
CA-00052934-005 Minimum Notice CA-00052934-007 Minimum Notice I find that these complaints are well founded. In line with Section 4 of Minimum Notice and Terms of Employment Act, I direct the Respondent to pay the Complainant one week’s notice of €582.27 gross. CA-00052934-006 Minimum Notice I find that this complaint is not well founded. |
Dated: 12-October-2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Annual Leave – Terms of Employment – Minimum Notice |