Complainant

Respondent

Parties

Dylan  Brennan

M/S Harry O’Donovan and Maura Kearin T/A Kingdom Cleaners AND/OR Harry O’Donovan AND/OR Kingdom Cleaners

Act

Complaint/Dispute 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-00053208-001

07/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00053208-002

07/10/2022

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

CA-00053208-003

07/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00053208-004

07/10/2022

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

CA-00053208-005

07/10/2022

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

CA-00053208-006

07/10/2022

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

CA-00053208-007

07/10/2022

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

CA-00053208-008

07/10/2022

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

CA-00053208-009

07/10/2022

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

CA-00053208-010

07/10/2022

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

CA-00053208-011

07/10/2022

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

CA-00053208-014

07/10/2022

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 Complaint Form was received by the Workplace Relations Commission on 7 October 2022.

The Complainant appeared in person and swore an affirmation at the outset of hearing. Documentary evidence was received in advance of the hearing date from the Complainant and shared with the Respondent.

Mr. Harry O’Donovan gave evidence on behalf of the Respondent on affirmation. Documentary evidence was received at 9.06am on the morning of the hearing.

At the outset of the hearing having gone through the Complaint Form with the parties, Mr. O’Donovan was asked to confirm the name of the employer. He was unable to give a clear answer and therefore, I have been left with no choice but to include all the variation of the names of the Respondent in the title.

Both parties availed of the opportunity to cross examine.

Time was given at the outset to allow the parties gather their documentary evidence.

CA-00053208-001 – Hours of Work (Aviation Regulation)

This complaint was withdrawn at the hearing.

CA-00053208-002- Employment Regulation Order (ERO)

It was the Complainant’s evidence that he got no paperwork relating to an ERO. He confirmed the Respondent did provide contract cleaning for a factory.

CA-00053208-003 – Contract of Employment

The Complainant gave evidence that he did not receive a contract of employment. When asked he said he sought a copy “plenty” of times with the most recent being in “2020 or 2021”.

When the copy of the contract of put to the Complainant he agreed it was his signature but did not remember signing it.

The Complainant then submitted the contract of not in compliance with the legislation.

CA-00053208-004 - Employment Regulation Order (ERO) Statement of Terms and Conditions

It was the Complainant’s evidence that he got no paperwork relating to an ERO.

CA-00053208-005 – Redundancy

It was the Complainant’s evidence that he was laid off in January 2021 when he was told by Mr O’Donovan that work was quiet. There were conversations between the Complainant and Mr O’Donovan in March, June and August 2021 on the phone regarding the unavailability of work. The Complainant gave evidence that Mr O’Donovan would be in touch once he had work available.

He was in receipt of the PUP until he went on Illness Benefit from July 2021 as he underwent an operation. He remained on Illness Benefit until September 2021 when he was deemed fit to return to work. On 17 August 2021 the Complainant referred to text message he sent to the Respondent advising he would be returning to work shortly. No reply was received. A further text message was sent along with a medical report on 27 September 2022. Again, there was no reply. On an unknown date in November 2022, he sent him an RP9 Form after receiving advice. A copy of same was presented at the hearing. No response was received by the Complainant from the Respondent.

CA-00053208-006 – Minimum Notice

The Complainant gave evidence that he was owed payment for the last week he worked in January 2021.

CA-00053208-007 – Employee’s Minimum Notice

This complaint was withdrawn at the hearing

CA-00053208-008 – Payment of Wages

It was the Complainant’s evidence that the tax credit for flat rate expenses was not passed on by the Respondent nor were any changes to the USC , PAYE or PRSI as a result of the budgets from 2017 onwards. He said he received €400 net per week into his bank account regardless of any changes to income tax that may arise. It was the Complainant’s evidence that he never received a payslip despite requesting them from his employer, so he was never aware of how much he was being paid or his tax situation.

It was the Complainant’s evidence that he was owed between €25 and €30 per week for flat rate expenses for 2017, 2018 and 2019 but could not give a total figure.

CA-00053208-009 – Payment of Wages (Notice)

The Complainant gave evidence that he was not paid for his last week of work in January 2021.

CA-00053208-010 – Hours of Work (Annual Leave Payment)

It was the Complainant’s evidence that he did not receive annual leave while on sick leave. It was his evidence , when asked under cross examination, that he did not present a medical certificate because he was told he did not need one by Mr O’Donovan.

CA-00053208-011- Statement of Core Terms

It was the Complainant’s evidence that he did not receive a statement of his core terms of employment but accepted that hit was his signature on a contract of employment dated 1 September 2017.

CA-00053208-014 – Unfair Dismissal

It was the Complainant’s evidence that after he was deemed medically fit to return to work in September 2022, he sent the Respondent text messages with a medical report on 27 September 2022. It was his evidence that he had previously text the Respondent on 17 August 2022 giving him notice of his return to work. Evidence of the messages was presented.

It was put to the Complainant that these messages were fake to which he denied.

Upon inquiry the Complainant confirmed he had not been contacted since by the Respondent regarding a return to work.

Upon inquiry about this financial loss, the Complainant said he had not yet returned to work. He was on Job Seekers Allowance from October 2021. He returned to education from December 2021 and has continued to do so since.  He intends setting up his own business in the future and has received allowances associate with this.

CA-00053208-001 – Hours of Work (Aviation Regulation)

This complaint was withdrawn at the hearing.

CA-00053208-002- Employment Regulation Order (ERO)

The Respondent gave no evidence on the existence of an ERO.

CA-00053208-003 – Contract of Employment

It was the Respondent’s evidence the Complainant did sign a contract of employment in 2017. A copy of same was produced at the hearing.

CA-00053208-004 - Employment Regulation Order (ERO) Statement of Terms and Conditions

The Respondent gave no evidence of any statement of ERO terms and conditions.

CA-00053208-005 – Redundancy and CA-00053208-014 – Unfair Dismissal

It was the Respondent’s evidence that the Complainant was not entitled to redundancy. Mr O’Donovan gave evidence that he was very busy and always was looking for staff as the company he was contracted to had orders in the pipeline for over 2 years. He stated he worked 6 days a week at the time.

The Complainant cross examined Mr O’Donovan asking why another employee was taken on to “do the paint job”. It was Mr O’Donovan’s evidence that he would have taken the Complainant back “in a heartbeat”. Mr O’Donovan concluded by stating that “I was sure the man was gone after 2  years”.

Mr O’Donovan was asked about conversation he had with the Complainant in March, June and August 2021. It was his evidence that he “did not remember talking to Dylan in 2021.”

Upon inquiry, Mr O’Donovan gave evidence that he did not lay off the Complainant in 2021 and instead was told he was going on Illness Benefit. Asked if he sought medical certificates from the Complainant, it was Mr O’Donovan’s evidence that the Complainant never gave him medical certificates.

Mr O’Donovan gave evidence that he never received the RP9 Form. He was asked if he contacted the Complainant to which Mr O’Donovan said he did in 2021 but could not advise as the months or dates. It was Mr O’Donovan’s evidence that he did not make any other efforts to contact the Complainant, to send him a registered letter or call to his house to speak with him. It was Mr O’Donovan’s evidence that “in my head he wasn’t coming back” and he had “forgotten about the man” when he did not receive any contact from him. He said he “wiped my hands of him”.

Asked when he came to this conclusion , it was Mr O’Donovan’s evidence that he did not consider the Complainant an employee since January 2022.

Mr O’Donovan denied sending a text message in August 2022 to the Complainant asking about his return to work stating the document presented by the Complainant at the hearing was fake.

CA-00053208-006 – Minimum Notice

It was accepted by the Respondent that he did not pay the Complainant for the week of 4 January 2021 in the sum of €455.

Asked under cross examination if he was going to pay this sum it was Mr O’Donovan’s evidence that he would have to wait and see as to the outcome of hearing.

CA-00053208-007 – Employee’s Minimum Notice

This complaint was withdrawn at the hearing

CA-00053208-008 – Payment of Wages

It was Mr O’Donovan’s evidence that the Complainant’s tax credits were a matter for himself, and his accountant processed the wages and paid the necessary tax. When asked about a payslip he said he had payslips for 2017 only and did not have the 2018, 2019 or 2020 payslips with him. It was Mr O’Donovan’s further evidence that the Complainant got the pay slips.

CA-00053208-009 – Payment of Wages (Notice)

Mr O’Donovan repeated his evidence that he accepted he did not pay the Complainant for the week of 4 January 2021.

CA-00053208-010 – Hours of Work (Annual Leave Payment)

It was the Respondent’s evidence that the Complainant did not produce medical certificates during his sick leave. The contract of employment requires medical certificates, and it was up to the Complainant to provide them.

CA-00053208-011- Statement of Core Terms

It was the Respondent’s evidence the Complainant did sign a contract of employment in 2017.

In arriving at the findings of these complaints, I am limited to considering the primary evidence before and not hearsay evidence of parties who did not appear to give evidence at the hearing. Furthermore, only documents presented in evidence can be taking into consider.

CA-00053208-001 – Hours of Work (Aviation Regulation)

This complaint was withdrawn at the hearing.

CA-00053208-002- Employment Regulation Order (ERO)

No evidence whatsoever was presented by the Respondent in relation to the complaint from the Respondent. Consequently, I accept the undisputed evidence of the Complainant that as contract cleaners in a factory he was entitled to benefit from the annual leave entitled set out in Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee (S.I. 608 of 2020) while on sick leave.

However, as required by ERO in relation to sick leave the Complainant did not produce medical certificates for the duration of his sick leave in compliance with the ERO. Consequently, I find the complaint is not well founded. 

CA-00053208-003 – Contract of Employment

An undisputed signed contract was produced at the hearing by Mr O’Donovan.  However, in light of the finding made under CA-000053298-004, I find it just and equitable that one award is made as the complaints arise out of the same set of facts.

I find the complaint is well founded.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

CA-00053208-004 - Employment Regulation Order (ERO) Statement of Terms and Conditions

No evidence whatsoever was presented by the Respondent in relation to the complaint from the Respondent. Consequently, I accept the undisputed evidence of the Complainant that as contract cleaners in a factory he was entitled to benefit from the terms and conditions of employment set out in the Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee (S.I. No. 548 of 2016 and subsequent EROs

Consequently, I find the contract of employment dated 2017 does not reflect the terms and conditions set out in S.I. No. 548 of 2016 or the subsequent EROs.

I find the complaint is well founded.

CA-00053208-005 – Redundancy

Section 12 of the Redundancy Payments Act 1967 (as amended) provide:-

“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.”

There is a clear dispute between the parties as to whether the Complainant was laid off in January 2021 with the Respondent giving evidence that the Complainant went on sick leave. The only documentary evidence presented was the RP9 Form which the Complainant presented. However, this is an incomplete with Part B missing. It was the Complainant’s evidence that this form was sent in the “middle of November 2022” and no response was received. However, the Complaint Form was received by the Workplace Relations Commission on 7 October 2022, 4 – 6 weeks before the RP9 was sent. The Respondent, even if he had received it, had a period of 7 days in which to reply.

Based on the limited disputed evidence before me, I find the Complainant did not terminate his employment by reason of lay off within the required time provided for under Section 12 of the Act. Consequently, the Complainant’s appeal is disallowed.

CA-00053208-006 – Minimum Notice

I find the Complainant was entitled to minimum notice on the basis he was unfairly dismissed from his employment.

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

“4.—(1) 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 thissection.

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,”

CA-00053208-007 – Employee’s Minimum Notice

This complaint was withdrawn at the hearing

CA-00053208-008 – Payment of Wages

The first point to consider is the timing of the complaint in light of Section 6 (4) of the Payment ofWages Act 1991 and whether I have jurisdiction to hear such a complaint:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

It was the Complainant’s evidence that he was owed €23-30 per week for flat rate expenses for the period 2017 – 2019 and regardless of changes to income tax and USC his take home pay remained the same.

In light of the fact his Complaint Form was received on 7 October 2022 and the last date referred to by the Complainant’s in his evidence was December 2019, I find this is outside the 6 month time limit provided for within Section 6 (4). Consequently, I find the complaint is not well founded.

CA-00053208-009 – Payment of Wages (Notice)

It was the Complainant’s evidence that he was not paid for his last week of work in January 2021. Considering Section 6 (4) of the Payment of Wages Act 1991, I find I do not have jurisdiction in this complaint and consequently find it to be not well founded.

CA-00053208-010 – Hours of Work (Annual Leave Payment)

Section 19 (1A) of the Organisation of Working Time Act 1997 provides:-

“(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”

There was a dispute between the parties as to whether the Respondent told the Complainant that he did not need a medical certificate for his absence. Regardless of this dispute both parties agree that no medical certificates were produced by the Complainant during his period of sick leave. Consequently, where it is a prerequisite of Section 19 (1A) that a certificate is provided, I find the Complainant is not entitled to accrued annual leave and the complaint is not well founded.

CA-00053208-011- Statement of Core Terms

I find this to be a duplicate claim which has been addressed under CA-00053208-003.

CA-00053208-014 – Unfair Dismissal

Section 6 (1) of the Unfair Dismissal Act 1977 provides:-

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

It was the Complainant’s evidence that he sought to return to work once he was deemed medically fit to do so in August 2022, but his first message was met with silence. When he sent a further text message on 27 September 2022 advising of fitness to return to work. In this message reference is made to attempts made to speak to the Respondent but the calls were not answered or returned. There was no response to this text message and no contact since from the Respondent. Of particular note was the Respondent’s response at the hearing that he simply forgot about the Complainant. This statement is difficult to comprehend of an Employer who also gave evidence that he was required to work 6 days a week due to the demands of the business yet simply could forget about an employee who he described as a good worker. This behaviour falls significantly short of what is expected of an employer in this country in 2023.

In conclusion I prefer the evidence of the Complainant and find he was unfairly dismissed from his employment on 27 September 2022.

Financial loss

Section 7 of the Unfair Dismissals Acts 1977 defines ‘financial loss’ as including’ 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.’

The Complainant’s unchallenged evidence of his return to education in the hope of setting up his own business. However, I note this has yet to happen with no evidence of when he is due to being in his new employment and have taken this into consideration in arriving at what is just and equitable having regard to all the circumstances.

CA-00053208-001 – Hours of Work (Aviation Regulation)

This complaint was withdrawn at the hearing and consequently, is not well founded

CA-00053208-002- Employment Regulation Order (ERO)

I find the complaint is not well founded.

CA-00053208-003 – Contract of Employment

The Complaint is well founded and award the Complainant compensation in the amount of €909 representing two weeks wages.

CA-00053208-004 - Employment Regulation Order (ERO) Statement of Terms and Conditions

I find this complaint is well founded and has been taken into account in the award of compensation provided under CA-00053208-003.

CA-00053208-005 – Redundancy

I find that the Complainant’s appeal is disallowed.

CA-00053208-006 – Minimum Notice

I find the complaint is well founded and award the Complainant his 4 weeks statutory notice where his employment commenced on 1 January 2017 and was terminated on 27 September 2022 amounting to €1,818.

CA-00053208-007 – Employee’s Minimum Notice

This complaint was withdrawn at the hearing and consequently, is not well founded.

CA-00053208-008 – Payment of Wages

I find the complaint is not well founded.

CA-00053208-009 – Payment of Wages (Notice)

I find the complaint is not well founded.

CA-00053208-010 – Annual Leave

I find the complaint is not well founded.

CA-00053208-011- Statement of Core Terms

I find the complaint is not well founded.

CA-00053208-014 – Unfair Dismissal

I find the Complainant was unfairly dismissed and award him the sum of €11,817 being the equalitvant of 6 months financial loss as being just and equitable having regard to all the circumstances.

Unfair Dismissal – Redundancy