Complainant

Respondent

Parties

Ondrej  Pavlak

Liam McGlynn T/A Liam McGlynn Garage

Representatives

John Duggan Callan Tansey Solicitors

Shane O'Dowd O'Dowd Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 Withdrawn

CA-00057078-001

12/06/2023

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

CA-00057078-003

12/06/2023

Two complaints were referred for adjudication. The complaint under the Unfair Dismissals Act was confirmed as withdrawn at the hearing by Mr. Duggan solicitor for Mr. Pavlak. The remaining complaint is one of a failure to provide a written statement of terms during the period of employment.

The submission and evidence of Mr Pavlak were that he was employed by the Respondent from 25.10.2013 until 30.04.23 when he submitted his resignation in writing. His rate of pay was €584.61 per week ,gross. On 6 April 2022, Mr Pavlak went out sick due to a problem with his hand. He went to a GP. Before his sick leave, many times, and while he was on sick leave on at least two occasions he asked for a statement of his term of employment as he needed these for the authorities in the Czech Republic for pension purposes. He did not receive a statement. Only a letter of 19th April 2022 signed by Mr McGlynn which confirmed his starting date in 2013, and that ‘he is employed as a labourer’. In his evidence Mr Pavlak described that letter as a response to his request for a statement of terms as laughable-a joke. In April 2023 he decided to resign due to ill health and he gave ten days notice to expire on 30 April in a letter issued by registered post. After he retired, he found through Revenue that the Respondent had informed Revenue that the date his employment ended was on 05.04.22 which was never said to him by anyone.

Mr Duggan submitted that the employment was ongoing until the resignation of Mr Pavlak in April 2023 and therefore the breach of the legislation was a continuing breach. Mr Pavlak had asked for a statement of terms which was not provided at any stage during the employment. Full compensation as provided for under the legislation is the redress sought.

The date of commencement of employment and the gross rate of pay given by Mr Pavlak were not disputed.

For the Respondent, Mr O’Dowd submitted that there were two preliminary points.

Firstly, that the employment relationship ended in April 2022. Mr Pavlak did not attend for work after 6 April 2022,he did not provide any medical certificates and the claim that he went to the employment monthly regarding his situation and to advise them of same, is denied. The initial position adopted on behalf of the Respondent therefore was that the complaint lodged on 12.06.23 is well outside the time limits for making such complaints.

Secondly, even if the case on the date of termination and the  time limit were not accepted, Mr Pavlak was out of work for a year and was not physically at work to receive or to be issued with a statement of terms.

As there is no dispute that the Complainant did not receive a statement of terms or that he was entitled to one by right it is not necessary to detail the terms of the legislation either in respect of the requirement to issue terms within a particular period of time or the nature of the terms to which Mr Pavlak was entitled.

In relation to the first issue raised on behalf of the Respondent, i.e., that the employment ended in April 2022, I believe this was clarified as an incorrect assertion at the hearing when the letter of 19 April 2022 was examined and it contained no reference to the employment having ended and referred to the type of employment as being in the present term. And that the terms of that letter continued until the letter of resignation-in April 2023 was also clarified. On this basis, the employment relationship ended on 30 April 2023 and not in 2022 and the time limit issue raised as a defence has no application in this case.

In relation to the second issue raised, that as he was absent on sick leave for a period of year, this contention might have some relevance in respect of any decision on redress. However, of significance in this case, is the finding of fact that Mr Pavlak is not someone who first raised the issue of a statement of his contract after he left the employment or after he went out sick but did so during his employment and for a specific purpose, known to  the Respondent, or at least not denied by them. There were no agreed terms which allowed for the provision of medical certificates or that anything can be taken regarding his tenure because there were no certificates. The contention by Mr Duggan that this was an ongoing contractual obligation is a valid one. In the circumstances the contention that the absence of Mr Pavlak on sick leave from April 2022 until 2023 was relevant  has no effect on his complaint including the decision to award the maximum compensation in those same circumstances.

CA-00057078-003 Terms of Employment Information Act 1994 as amended

The complaint by the Complainant Ondrej Pavlak against the Respondent Liam McGlynn T/A McGlynns Garage is well founded. The Respondent is to pay the Complainant €2338.44 in compensation for the failure to provide him with a statement of terms of employment at any stage during his employment which ended in April 2023.