Complainant

Respondent

Parties

Christopher  Pedersen

Cork Drain and Septic Tank Cleaning Co. Ltd

Representatives

  Self-represented

 Comyn Kelleher Tobin Solicitors

Act

Complaint

Reference No.

Date of Receipt

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

CA-00058828-001

14/09/2023

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

CA-00058828-002

14/09/2023

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 2006

CA-00058828-003

14/09/2023

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

CA-00058828-004

14/09/2023

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

CA-00058828-005

14/09/2023

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

CA-00058828-006

14/09/2023

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

CA-00058828-007

14/09/2023

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-00058828-008

14/09/2023

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-00058828-009

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00058828-010

14/09/2023

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

CA-00058828-011

14/09/2023

The Complainant worked for the Respondent company, having been employed as a Drain Lorry Driver from 14th November 2022, before resigning on 31st August 2023.

On or about 16th January 2023, the Complainant was involved in an alleged accident in the workplace which is now the subject of separate legal proceedings.

The Respondent submits that the Complainant was paid for five days’ annual leave, between 14th November 2022 and 16th January 2023.

Immediately following the alleged accident, the Respondent submits that the Complainant was paid eight days’ annual leave. The Complainant acknowledges receiving the payment. However, he submits that he was on certified sick leave as a result of the workplace accident at the time; and that the payment could therefore not constitute a payment for annual leave.

The Complainant remained an employee of the Respondent, and remained on sick leave, until he tendered his resignation at the end of August 2023.

He filed eleven complaints with the WRC. By the time the matter came to hearing, the only outstanding matters pertained to his complaint that he did not receive a five-day statement and his complaint that he did not receive a contract. The Respondent raised a preliminary point in relation to the statutory time-limit to file a complaint (‘within six months of the alleged contravention’) with respect to these outstanding claims.

The Complainant disclosed a requirement for reasonable accommodations. The Adjudication Officer’s approach was informed by Equal Status Act and the WRC being a s. 4 body, Public Sector duty (s. 42 of the IHREC Act) and the UK Judicial Bench Book.

Complaints filed, as per the complaint form

CA-00058828-001 - I did not receive the appropriate payment in lieu of notice of termination.

CA-00058828-002 - I did not receive my paid holidays/annual leave entitlement.

CA-00058828-003 - I did not receive my paid holidays/annual leave entitlement.

CA-00058828-004 - I did not receive my public holiday entitlements.

CA-00058828-005 - I was not compensation for the loss of my annual leave entitlement on leaving.

CA-00058828-006 - I was not compensation for the loss of my annual leave entitlement on leaving.

CA-00058828-007 - I did not receive a statement in writing on my terms of employment.

CA-00058828-008 - I claim that my employer is not keeping statutory employment records.

CA-00058828-009 - I was not notified of the working hours regulations applying to the road transport sector.

CA-00058828-0010 - I did not receive the terms and conditions as laid down by the Sector Employment Orders (SEO).

CA-00058828-0011 - I did not receive a statement of my core terms in writing under the Terms of Employment (Information) Act 1994.

At the hearing, the Complainant represented himself and gave evidence on hits own behalf.

The Complainant acknowledged that he had received his outstanding pay in respect of annual leave and bank holidays, but he emphasised that there was a delay in receiving the payment from the point of his resignation, August 31st 2023, until he received payment September 28th 2023. He submitted he had to get the WRC involved, i.e. he had to file his WRC complaint in order to receive payment. He submitted a series of emails, at the hearing, which he had sent to the Respondent requesting payment, during that four week time-frame.

The Complainant outlined that he ‘felt like he was backed into a corner’, that he ‘had to get the WRC involved.’ He said that he ‘had to resign’ on his ‘doctor’s advice’, that it was ‘the best thing for his [medical] outcome.’ He submitted that ‘the only reason he was looking for his holiday pay was to close that door on his employment.’

The property belonging to the Respondent company which the Complainant still had in his possession was handed over, at the hearing.

The Respondent was represented at the hearing by Mr. Conor White, of CKT Solicitors.

Preliminary Matters

Duplication & Overlap

The Respondent submits that the Complainant has submitted multiple duplicate complaints, and submits that the following are duplicates/significantly overlap:-

-        Complaints ending 002, 004, 005, 006;

-        Complaints ending 007, 010 and 011; and

-        Complaints ending 008 and 009.

The Respondent submits that a complainant cannot maintain and succeed under duplicate heads of claim as this would amount to a double recovery and double litigation of the same issues. In this regard, the Respondent relies on the decision in Henderson v. Henderson (1843) 3 Hare 100. 

Time-limit

The Respondent submits that in accordance with section 41 of the Workplace Relations Act, 2015, the complaints must be submitted within six (6) months of the alleged contravention (s.  41(6)) or within an extended time limit of up to 12 months for “reasonable cause” (s. 41(8)).

The Respondent submits that the Complainant suffered an alleged injured at work, on or about 16th January 2023. Thereafter, the Complainant commenced a period of sick leave which continued until his resignation on or about 31st August 2023.

The Respondent submits that the complaints herein were presented to the WRC on 14th September 2023 and, therefore, the cognisable period is the six (6) month period prior to that date, i.e. 15th March 2023 – 14th September 2023. On that basis, it is submitted by the Respondent, that the complaints lodged by the Complainant to the WRC are out of time, the Adjudication Officer does not have jurisdiction to deal with same and the complaints should be dismissed.

Not applicable

The Respondent further submits that the complaint references CA-00058828003, CA-00058828-008 and CA-00058828-009 do not apply in the within circumstances.

Without prejudice to the other preliminary objections made, the Respondent further submits that the Complainant’s complaints are insufficiently particularised, in particular in relation to the failure to provide details in relation to alleged breaches of statutory duties.

Substantive submissions of the Respondent

CA-00058828-001 - The Respondent made no deductions from the Complainant’s salary as alleged. No evidence of such a deduction has been put forward by the Complainant. 

CA-00058828-002 - All outstanding annual leave was paid on 26th September 2023.

CA-00058828-003 - As set out above, the Respondent submits that the basis of the complaint is not applicable to the Complainant.

CA-00058828-004 - All outstanding annual leave was paid on 26th September 2023.

CA-00058828-005 - All outstanding annual leave was paid on 26th September 2023.

CA-00058828-006 - All outstanding annual leave was paid on 26th September 2023.

CA-00058828-007 - The Respondent does not have a copy of the terms and conditions of employment which it can say were provided to the Complainant.

CA-00058828-008 - The Respondent submits that the within complaint does not relate to persons employed in the driving and operation of Drain Lorries such as the Complainant was.

CA-00058828-009 - The Respondent submits that the within complaint does not relate to persons employed in the driving and operation of Drain Lorries such as the Complainant was.  

CA-00058828-0010 - The Respondent does not have a copy of the terms and conditions of employment which it can say were provided to the Complainant.

CA-00058828-0011 - The Respondent does not have a copy of the terms and conditions of employment which it can say were provided to the Complainant.

The Respondent submits that the final payment of outstanding entitlements (including accrued annual leave) to the Complainant was made on or about 26th September 2023 following the Complainant’s resignation on 31st August 2023. It submits that the cause of the delay in relation to processing final payment was due to the fact that the Respondent had requested the return of Company property in advance. That property (a fuel card and work mobile phone) were not returned and the decision was taken to process payment regardless. [Adjudication Officer’s Note: The property was returned to the Respondent by the Complainant, at the hearing.]

It is submitted that the final payment to the Complainant was further delayed due to a bereavement within the Respondent’s accountant’s family which delayed final calculation of the amounts due. The final payment of €3,608.75 was paid to the Complainant on or about 26th September 2023. The Complainant was paid for a total of 20 days, comprising 14 days’ annual leave and 6 days’ public holidays.

In relation to CA-00058828-007 and CA-00058828-0011, the only position put forward by the Respondent, in respect of those complaints is the preliminary point raised in relation to the statutory time limit and cognisable period, i.e. that the complaints are out of time.

It is common case that the Complainant received 14 days holiday pay and 6 days bank holiday pay in September 2023 (28/09/2023). He received a payment in the amount of €3,608.75. This addresses the complaints filed under CA-00058828-001, CA-00058828-002, CA-00058828-004, CA-00058828-005 & CA-00058828-006, some of which are duplicate complaints.

It is also common case that some of the complaints do not apply to the Complainant’s employment, and were filed in error, in particular CA-00058828-003, CA-00058828-008, CA-00058828-009 & CA-00058828-0010.

In relation to the two outstanding complaints CA-00058828-007 and CA-00058828-0011, I find that the Complainant did not receive a contract setting out his terms and conditions of employment, and that CA-00058828-007 is therefore well founded. I find that CA-00058828-0011 is not well founded, as it is ‘out of time.’

CA-00058828-001 - I find that this complaint is not well founded.

CA-00058828-002 - I find that this complaint is not well founded.

CA-00058828-003 - I find that this complaint is not well founded.

CA-00058828-004 - I find that this complaint is not well founded.

CA-00058828-005 - I find that this complaint is not well founded.

CA-00058828-006 - I find that this complaint is not well founded.

CA-00058828-007 – I find that this complaint is well founded. I am required to award an amount of compensation which is ‘just and equitable’ in all the circumstances, but not exceeding four weeks’ remuneration. I direct the Respondent to pay the Complainant €1,800, which is the equivalent of two weeks’ remuneration, within 42 days of the date of this decision.

CA-00058828-008 - I find that this complaint is not well founded.

CA-00058828-009 - I find that this complaint is not well founded.

CA-00058828-0010 - I find this complaint is not well founded.

CA-00058828-0011 - I find that this complaint is out of time. I therefore find that this complaint is not well founded.

Untaken Annual Leave; Bank Holidays; Cesser pay; Terms and Conditions of Employment;