Complainant

Respondent

Parties

Kurt Pace

Healys Bakery

Representatives

  No Appearance by or on behalf of the Complainant

 Rachel Healy (Proprietor)

Act

Complaint Reference No.

Date of Receipt

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-00059922-002

10/11/2023

On 10 November 2023, the Complainant, a cake decorator lodged a complaint before the WRC seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organization of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 .

The complaint recorded that the complainant’s employer was not keeping statutory employment records.

The narrative of the complaint indicated that the complainant had experienced a delay in securing a refund in emergency tax.

The claim was contested by the Respondent, who operated a Bakery.

The hearing in this case was first scheduled for hearing as a face-to-face hearing. As the Respondent expressed some concerns for her personal safety in the face of the complainant’s attendance at hearing, she requested and was granted access to a Hybrid hearing to commence on 25 March 2024.

In preparation for hearing, I wrote to the Complainant on 19 January 2024 and copied this to the Respondent on the same date.

DearMr. Pace,

I am the Adjudicator assigned to hear this case on 25 March at 10.30 am in Cork.

I have been requested to accommodate the respondent through our hybrid screen at hearing and I have agreed.

I would be grateful if you could confirm that you are in a position to attend the hearing, please.

In preparation for the hearing, I have commenced a review of the file and note that an issue has arisen for the parties involving Revenue, which is not resolved.

I just wish to clarify that my role is to make a decision in accordance with your workplace complaint. I have no powers in relation to tax/emergency tax.

I must ask that the parties make a collective effort to resolve any revenue related issues prehearing.

I would be grateful if both parties would have their outline submissions under the Mobile Road Transport Activities Regulations SI 36/2012 with our PRU within 15 days before the hearing.

Please include any contract of employment of pay slips which either party deem relevant.

I look forward to meeting the parties at hearing.

This letter will be shared with the Respondent for their file.

Yours sincerely,

Adjudicator

The Complainant responded and confirmed that the Revenue issue was now resolved, and he would not be attending the hearing. He then referred to a non-apparent claim for unpaid work and annual leave but did not cross match this for my attention.

The Respondent confirmed that they would attend on the remote platform on March 25, 2024.

The case came for hearing on 25 March 2024, on the remote platform in accordance with the provisions of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020, as amended. As the hearing was hybrid , I remained in hearing room 3 to facilitate any in person presence .

Neither party filed the outline submissions I had requested.

On  Friday March 22, 2024, the WRC shared the link for accessing the hearing directly with the Respondent and I connected via our hybrid screen as planned.

It transpired that the Respondent arrived spontaneously to hearing in person, in the company of her Accountant.

In light of that development and in seeking to be fair to both parties, I requested that a call be made to the Complainants phone number to assess whether he intended on making an appearance at hearing?

I am grateful to the Case Officer for making that call. I was informed that the Complainant had left a message on his phone which confirmed that he was unavailable.

I explained to the Respondent that I would press on with the hearing and the Complainant would be recorded as not having made an appearance.

There has been no further contact from the Complainant to the WRC in the 5 days post hearing to explain his nonattendance at hearing. The Complainant has not withdrawn his complaint; therefore, I am obliged to reach a decision in his complaint. I have submitted my decision mindful of that vacuum of contact.

The Complainant introduced himself as a Lay Litigant on his complaint form. He wrote that he was a Maltese Cake Decorator who worked for the Respondent Bakery from 14 August 2023 to 15 September 2023 when he went to work for a hotel.

He recorded that he was paid weekly at €600.00 gross for a 40-hour week.

In his sole complaint before the WRC Adjudication Service, he claimed that there had been a contravention I the EC (Road Transport) Organisation of Working Time of Persons performing Mobile Road Transport Activities Regulations 2012.

The Complainant had made complaints which had been addressed by the WRC Inspectorate also.

The narrative of the complaint before the Adjudication service reflected that the Complainant had not secured his PPS number when he commenced work at Healy’s Bakery and was subjected to emergency tax. The Complainant departed this employment in September 2023, without having secured the PPS number. He wrote that he believed that the Respondent was purposefully withholding the submission of detail to Revenue as a “revenge because I no longer work with her “.

In his initial complaint, the complainant exhibited inter party hostile and accusatory correspondence which he sent by email to the Respondent in pursuance of her cooperation to assist in a tax refund.

This correspondence contained threats of bodily and business harm against the Respondent. This correspondence contained references to “I will come and find you “addressed to the Respondent.

Subsequent to my letter in pursuance of outline submissions, the Complainant confirmed that the Revenue issue had resolved. He had gone on to work at a hotel but had since returned to Malta and would not be attending the hearing.

He went on to refer to annual leave of 20 hours and a period 2 weeks where he was unpaid, but these statements were not encapsulated in any specific complaint to the WRC Adjudication Service.

The Complainant did not make an appearance in his own case. He did not send a representative. He did not withdraw his claim.

I must find that the Complainants behaviour towards the WRC was unreasonable in not managing the progression of the complaint he initiated on 10 November 2023.

The Respondent operates a Family Bakery in existence over a number of generations. Ms Healy attended the hearing in the Company of her Accountant.

The Respondent refuted any breach of the 2012 Regulations as she stated that the Complainant was employed to undertake a baking speciality called sugar craft and had never been a “mobile worker”.

She submitted that the Complainant, by his irregular pursuance of his PPS number and in his securing emergency tax, he had caused her enormous upheaval and fear for her personal and business safety which has endured to the day of hearing. She submitted that she simply did not deserve this treatment from a worker she had supported in moving to Ireland.

Ms Healy came to hearing without a working knowledge of the various pillars of the WRC e.g. Conciliation, Inspectorate and Adjudication. As a result, she became anxious by that lack of awareness. I endeavoured to explain the pillars which operate exclusive of each other under various pieces of Legislation.

I explained that the Complainant was expected to set out his case at hearing and the Respondent could then respond. In the absence of the Complainant at hearing, Ms Healy was requested if she wished to address the hearing?

Ms Healy was very keen to explain her recollection of the complainant’s employment and denied any contravention of the 2012 Regulations.

Ms Healy gave evidence under oath.

Ms Healy said she was engaged in workforce planning when she contacted a Recruitment web site to back fill an anticipated vacancy in Sugar craft in September 2023. Three candidates were identified as possibles.

1 UK citizen who decided to remain in the UK.

2 A Korean Citizen who did not have a work permit.

3 A Maltese national who was cleared to work in Ireland.

The Respondent invited the complainant to commence work to familiarise himself with the business from 14 August 2023. She stated that it was common case that the complainant finalised his employment with her, through resignation, on 15 September 2023.

 He was engaged in general operative work to begin with. This was focussed on day work alone and was static work, not mobile.

The Respondent recalled the 10th day of his employment, where he appeared to have a Mental Health episode in the workplace. Verbal abuse and bizarre behaviour followed, and the respondent said she wondered if he was mentally unwell ?

He went on to misinterpret the good will gesture where staff are permitted a coffee and cake from stock for recreation when he took a piece from an assembled order for his own consumption.

The Respondent submitted that the Complainant had refused to sign the offered contract, but she did not exhibit that contract. She went on to say that he did not have a PPS number on arrival and was in fact using the incorrect address to set himself up for tax purposes. That constituted the real reason for a subsisting emergency tax regime.

Staff began to raise reservations about the complainant to her and she sought to alter his start time, which he disregarded and continued to start at 7am,

Ms Healy submitted that the complainant had worked 28 days at the business, having one week off for hospital care and a number of days where he did not make an appearance. She contended that his was paid in full during those absences.

He never assumed the position of Sugar craft as it was the Respondents intention to start him in the role on her return from leave mid-September 2023, but he left the business before she got that chance.

Ms Healy recalled the weekend of 27 October 2023, when the complainant remonstrated strongly with her by phone and subsequently email where he was seeking her input in securing his tax refund from emergency status.

During this time, Ms Healy threatened violence against her, and her business and she was compelled to seek Garda intervention.

She said the emails and phone calls were relentless, like nothing she had ever experienced in the past and she remained traumatised by their content of threats to blow up the business and sever her head.

The last contact was 7 December 2023 by email.

The Respondent stated that she was disappointed by the Complainants failed employment, his apparent mental ill health and his aggression in the aftermath of his employment.

She submitted that she came in person to hearing to record her concern as an employer who had demonstrated kindness   to a new employee, only to have it abruptly ignored. She was left with a simple financial debt of €1600 unpaid through rent paid, a sub on wages and sundries.

The Respondent clarified that the complainant was not a mobile worker. She was not aware that he had a driving licence and at any rate he was not asked to be a mobile worker.

She argued strongly that the claim made by the Complainant should be dismissed as vexatious as she contended it was simply a retaliatory action against her and was without substance.

She concluded that she was angry and disappointed by the manner in which the complainant conducted himself at a benevolent employment.

She confirmed that she was in ongoing contact with the Gardai on her personal safety.

I have been requested to make a decision in this complaint and to decide whether any contravention of Regulations 5,8,9, 10, 11 or 12 of SI 306/2012 has occurred during the course of the Complainants    short duration of employment.?

In reaching my decision, I have considered the written correspondence sent by both parties to the WRC and the Respondents evidence at hearing.

The Complainant was a no show in his own case. He offered no explanation as to why he was not available for hearing.

There is no live claim before me on annual leave or unpaid wages. I have no jurisdiction to consider that narrative which post dated the complaint of November 2023.

My jurisdiction rests in Regulation 18 of  

European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (Consolidated)

S.I. No. 36 of 2012

18.Decision of adjudication officer under section 41 of Workplace Relations Act 2015

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of Regulation 5, 8, 9, 10, 11 or 12 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provisions of these Regulations that have been contravened, or

(c) require the employer to pay the mobile worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 104 weeks' remuneration in respect of the mobile worker's employment (calculated in accordance with [regulations] under section 17 of the Unfair Dismissals Act 1977).

Where an Employer of a Mobile Worker is described as:

“employer”, in relation to a mobile worker, means the person with whom the mobile worker has entered into, or for whom the mobile worker works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in subparagraph (b) of the definition of “contract of employment” is liable to pay the wages of the worker concerned in respect of the work or service concerned shall be deemed to be the individual's employer;

“employment” in relation to a mobile worker, means employment under his or her contract of employment, and “employed” shall be construed accordingly.

Regulation 3 places the scope of Mobile Workers, as mobile workers who are employed by or who do work for one or more undertakings within the Member States.

The Complainant has not prepared the requested outline submission under the Regulations SI /36, 2012. He did not attend the hearing.

I must now accept the uncontested evidence of the Respondent that he was not employed as a Mobile Worker for those 28 days.

I must now find that he does not possess the standing(, locus standi,) to proceed in this complaint.

I will take a  moment to evaluate the Respondent evidence on her experience of the complainant’s irregular pursuance of her as an employer who he viewed caused an obstruction to him obtaining his tax back.

I am not satisfied that the Respondent engaged in a sufficient pre-employment screening on this occasion to her detriment. However, she did not deserve the wholly unacceptable threats launched against her by her employee. I accept her evidence that she saw a sharp decline in the complainant’s mental health, and this frightened her even more.

I did not see any company procedures  eg grievance procedure ,for resolving conflict and perhaps the Respondent might consider this pathway when the dust settles in this case.

I have noted that she is in constant contact with the Gardai and is genuinely afraid for her safety. I saw an email attributed to the Complainant which reflected his intention to

“I will come and find you “

I found this wholly unacceptable in a modern workplace. I found the records of correspondence after the claim was submitted to the WRC to be singularly unhelpful.

The Respondent has requested that the claim be dismissed as vexatious as the content is futile and scripted to cause the respondent more damage.

I have listened carefully to those submissions and have reflected on them.

An Adjudicator has the delegated power to dismiss a claim under Section 42 of the Workplace Relations Act 2015.

It is reserved for claims judged to be frivolous or vexatious, that is have little to no chance of success.

Dismissal of claim by adjudication officer

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if  she is of the opinion that it is frivolous or vexatious.

I am satisfied that this claim was not submitted by a mobile worker. I am also satisfied that in his prehearing correspondence with the WRC, the Complainant did not avail of the opportunity to set out his case by submission or in evidence at hearing.

In my opinion, he did not believe in the content of the complaint but rather relied on it as leverage in his claim to get tax back. His claim is baseless.

For those reasons, I have decided to dismiss this complaint as frivolous and vexatious.

The correspondence engaged in the aftermath of employment in by both parties became overly personal very early on. I have addressed the Respondent on this aspect of the case.

I would ask the Complainant to desist from this level of antagonism going forward. It was unhelpful.

The Complaint is dismissed.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with my powers under Section 42 of the Workplace Relations Act, 2015, I dismiss this complaint as vexatious and frivolous.

Mobile Worker, Statutory Employment records.