Complainant

Respondent

Parties

George - Catalin  Tarus

Bm Transport Limited

Representatives

Marius Marosan

 Peninsula Business Services Ireland

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-00062147-001

11/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00062147-002

11/03/2024

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

CA-00062147-003

11/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00062147-004

11/03/2024

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

CA-00062147-005

11/03/2024

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

CA-00062147-006

11/03/2024

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

CA-00062147-007

11/03/2024

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

CA-00062147-008

11/03/2024

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

CA-00062147-009

11/03/2024

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

CA-00062147-010

11/03/2024

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

CA-00062147-011

11/03/2024

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

CA-00062147-012

11/03/2024

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

CA-00062147-013

11/03/2024

The complainant and his representative attended the first hearing on September 25th, 2024 but the hearing could not proceed as no submission containing particulars of the complaints had been made prior to, nor was one available for the hearing. (More on this in my Decision below).

The respondent and its representative attended both hearings and made extensive written and oral submissions.

The complainant did not attend the hearing. (He submitted an explanation which is addressed in the Decision below)

The respondent was in attendance and had made submissions on the complaints.

The complainant is a Romanian national and when the case was first heard at a hearing on September 25th, 2024, he was due to give evidence online, and did ‘log in’ for the hearing.

The WRC has conducted many hearings online and, as a format, it is generally satisfactory. A number of factors made it less so on September 25th, which were not attributable to deficits in the technology.

The first was the number of complaints; as can be seen from the list above there were thirteen separate complains to be heard.

The second was that no details were provided of when the alleged breaches occurred either on the complaint form, or subsequently. While WRC hearings are relatively informal, there is a minimum requirement that a respondent, for example, should have some prior knowledge of the details of the case they have to answer.

 The complainant’s representative proposed that the details of the complaint should be elicited by means of the  complainant’s evidence only. This would have been a grossly time consuming and inefficient way to proceed, especially in an online hearing involving translation of the evidence, when the  alternative was for the complainant to set out simply the bare outline of his complaints.

This is not just a principle of fair procedure, but also a necessary requirement for the conduct of an efficient hearing by the Adjudicator.

In its response the respondent submitted evidence that directly challenged six of the complaints and, as might be expected sought further particulars on all of them.

A further consideration was that the cognisable period covered only a very brief period of the complainant’s actual period of employment.

He submitted his complaint on March 11th, 2024, having left his employment on September 28th, 2023.

This meant that only some sixteen days of his actual period of employment fell within the cognisable period, and while it may have appeared unlikely that the significant number of complaints submitted had all occurred with that narrow timeframe, it was obviously not possible to make any assumptions in that regard.

Having regard to all these circumstances, the first hearing was adjourned, resulting in avoidable inconvenience and cost for the respondent and the WRC but on the strict understanding that particulars would be provided well in advance of any re-scheduled hearing.

The complainant could count himself very fortunate that he was given the opportunity of a second hearing.

Despite this, no submission was received in advance of the re-scheduled hearing on December 3rd, 2024.

This obviously meant that neither the respondent nor the adjudicator were any better informed about the details of the complaints than they had been at the first hearing; the adjournment of which was explicitly on the basis that a detailed submission particularising the facts should be made prior to the hearing.

To make things much worse it then became apparent that the complainant would not even be in a position to attend the second hearing at all (which was originally intended to be by Webex link).

His representative, Mr Marsan confirmed to the hearing that he (Mr Marsan) had only been told of the complainant’s unavailability for the hearing the day before and that neither had he been provided with any of the particulars required for the preparation of a submission.

Evidence was submitted of the complainant’s participation on military exercises as part of the armed services in his home country.  While a document related to his absence (which was translated by the official interpreter) was dated, it was unclear what the date related to and whether it referred to the commissioning of the complainant as a soldier or to the notice of the exercises.

In any event, the notice did appear to show that his requirement to attend the exercises was from October 18th until December 29th, 2024, so, at the very least it pre-dated the first of those dates by some time, and he therefore had adequate opportunity to seek an adjournment of the hearing, (or to advise the WRC if he did not wish to proceed).

He did not do so, thereby causing further inconvenience to the parties, the WRC and indeed embarrassment to his representative.

For this abundance of reasons, and having regard to all the circumstances, I find that the complainant, having been properly notified of the hearing, has failed without reasonable or any cause to attend a hearing to present his complaints, or to seek a further adjournment.

I therefore find complaints CA-00062147-001, 002, 003, 004, 005, 006, 007, 008, 009, 010, 011 and 013 not to be well founded.

In respect of CA-00062147-012 I find the complainant was not unfairly dismissed.

Failure to attend, ‘No Show’.