Adjudication Reference:  ADJ-00045058

Parties:

Complaints:

Date of Adjudication Hearing:  13/07/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following 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.

Background:

The Complainant was employed as an Insulations Installer from February 2022 to February 2023.         He contends that the Respondent dismissed him and he seeks payment in lieu of minimum notice.  He also contends that the Respondent acted in breach of the legislation by failing to furnish him with written terms of employment and that he made an unlawful deduction from his wages contrary to the provisions of the Payment of Wages Act 1991.  The Respondent contends that the Complainant was not dismissed.

Summary of Complainant’s Case:

The complaints are that the Complainant was dismissed without notice and is entitled to one week’s pay in lieu of notice, that he did not receive written terms of conditions of employment and that the Respondent made an unlawful deduction of €180 for attendance at a Safepass course.

The Complainant gave sworn evidence summarised as follows:

He stated that he had an incident with a colleague and he was told by one of the owners that if he would not agree to work with the colleague he would have no work.  He went to the Gardai about this and they told him no way should he lose his job over that.  This was around 31 January 2023.  He did work with a different colleague on 2 February and on 3 February he was called in to the office and Mr. M told him “with what happened we’re going to have to part ways”.  He was dismissed.   He has been working since he was 15 and no way would he leave the job.  He was sacked. In relation to deducting money from his wages for Safe Pass, he said Safe Pass expires every three years and he paid the employer €60 X 3 which was deducted from his wages.  As far as he knows the employer pays for Safe Pass in every other employment.  In relation to overtime, he didn’t have the exact dates, but he thought he had worked 7 Saturdays, but he acknowledges that the employer has stated it was 5 Saturdays.

Summary of Respondent’s Case:

The Respondent gave written and oral evidence summarised as follows:

Minimum notice –

The Respondent states they did not terminate the Complainant’s employment.  He left his employment on 3 February 2023 after an incident between him and another employee. 

On Tuesday 31st January both the Complainant and another employee stated they could not work with each other,   Therefore, they could not be given work  have work when they couldn’t work together so as of Friday 3rd February, they both left the company. The other person agreed and has had no issues with this.

On Thursday 2nd Feb the Complainant then came back to say he spoke with the guards and that he will work with him, but at that stage it was too late as alternative arrangements were made.

Even if he was dismissed, as he was working less than 1 year, he is only entitled to 5 days’ notice of which 4 days applied here.

Minimum notice pay –

The Respondent did not dismiss the Complainant but even if he was dismissed, as he is working here less than 1 year, he is only entitled to 5 days’ notice of which 4 days applied here which left 1 day remaining. As of January 2023, the Complainant was paid 4.5 days holiday pay – this was made up of Tuesday 3rd January & Wednesday 4th January which are set company holidays which is given to each employee as part of the Company holiday policy at the start of each year. He was then paid 2 days holidays in advance as requested on 5th January. He was then off on a ½ day annual leave on Friday 27th January which he was also paid for.  Employees in full time employment are entitled to 1.67 days holiday pay per month which meant he has been over paid on holiday pay by 2.8 days. That 1 remaining day is already accounted for in the over payment of holiday pay which he received. 1.8 days over payment remaining.

Safe pass pay –

One of the requirements on the job description is to have a safe pass. This was verbally provided to the Complainant prior to his commencement. He did not have one but stated he would get one if he liked the job after the trial week. He did not book one himself therefore it was booked for him which he had to pay for as it’s not for the Respondent to cover the cost as it was a requirement on commencement of employment. He was made aware of this at the commencement of his trial week. The cost of the safe pass was €165 which was booked for April 2nd 2022. The days payment which he states he is owed for, is already accounted for in his over payment of holiday pay as detailed previously. This now leave an over payment of 0.8 days holiday payment.

Overtime payment for Saturday work –

At no time was overtime ever agreed with a member of staff for working a Saturday. Saturday work is very common within our industry just like it is in retail and overtime does not apply in that case.

The Additional days in question worked were due to a busy period in the last quarter of the year which is common enough each year. The Complainant  asked if there was any Saturday work at that time and we agreed that he would work these days. This happened on a week-by-week basis. At no time did we agree overtime payment but we did state that the crew could finish early (Approx 1-2pm) as goodwill gesture. This was greed with the other members and still stands today within our company. He stated he worked 7 Saturdays when in fact he worked 5 Saturdays, the dates of these Saturdays are as follows:

Saturday 5th November, Saturday 12th November, Saturday 19th November, Saturday 26th November & Saturday 2nd December.

The Complainant received €120 for each Saturday worked which equates to 33% overtime payment.  

Findings and Conclusions:

CA-00055777-001 – Minimum Notice & Terms of Employment Act 1973

The applicable law

Section 4 of the Act provides that, in order to terminate the contract of employment, an employer shall give notice to an employee who has been in his continuous employment for a period of thirteen weeks or more calculated in accordance with subsection (2) of Section 4.

Section 4 (2) of the Act provides:

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week..

In this instant case, I am satisfied from the evidence that the Respondent dismissed the Complainant from his employment on 3 February 2023 and he failed to provide him with the minimum notice required by the Act.

I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €600, being the loss sustained by him by reason of the default of the employer.

CA-00055777-002 – Terms of Employment (Information) Act 1994

Section 3(1) of the Terms of Employment (Information) Act provides “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 following particulars of the terms of the employee’s employment…”.

It is common case that the Respondent did not give the Complainant a written statement of terms and conditions of employment.  I note the evidence of the Respondent that the current employees have been given written statements.  In this instant case, matters in dispute between the parties such as who pays for the Safe pass course and notice for termination of employment could have been clarified in such written statement had it been provided to the Complainant.

I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €600 compensation.

CA-00055777-003 – Payment of Wages Act 1991

The complaint here is a duplicate of CA-00055777-001.

CA-00055777-005 – Payment of Wages Act 1991

This complaint refers to the claim for minimum notice (already dealt with in CA-00055777-001 above) and also for deduction of a sum of €180 for attendance at Safe Pass course.

The Complainant’s evidence is that he paid 3 amounts of €60 each for his Safe Pass Course.

Section 5 of the Act provides:

In this case, the amount was not required or authorised to be made by virtue of any statute or any instrument made under statute.  It was not required or authorised to be made by virtue of a term of the employee’s contract of employment and the Complainant did not give his prior consent in writing to it.

I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €180.

CA-00055777-006 – Payment of Wages Act 1991

The claim under this reference is for payment for overtime worked in November and December 2022.  I note the evidence of the Respondent that due to early finishing, overtime equivalent to 33% was paid to the Complainant for the dates in question.  I find that there is no automatic entitlement in law to payment for overtime.  I accept the Respondent’s evidence that wages properly payable were paid in respect of this complaint.

I find the complaint to be 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-00055777-001 – Minimum Notice & Terms of Employment Act 1973

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €600, being the loss sustained by him by reason of the default of the employer.

CA-00055777-002 – Terms of Employment (Information) Act 1994

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €600 compensation.

CA-00055777-003 – Payment of Wages Act 1991

The complaint here is a duplicate of CA-00055777-001.

CA-00055777-005 – Payment of Wages Act 1991

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €180.

CA-00055777-006 – Payment of Wages Act 1991

I have decided that the complaint is not well founded.

Dated:   18/09/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: