Complainant

Respondent

Parties

Andrejs  Ratinskis

McCabe Entreprises(Cmx) Limited

Representatives

Neil Cosgrave Cosgrave Solicitors

Dorothy Donovan BL instructed by Mallon Solicitors LLP

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-00056782-001

22/05/2023

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

CA-00056782-002

22/05/2023

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

CA-00056782-003

22/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00056782-004

22/05/2023

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

CA-00056782-005

22/05/2023

The Complainant was employed as an Excavator Operative in a quarry from 26 February 2018 until 19 January 2023. He stated that his position was terminated on the grounds of redundancy, that he worked excessive hours and did not receive either his break or his daily rest entitlements. He also stated that he did not receive a written statement of his terms and conditions of employment. The Respondent disputed all of the allegations made by the Complainant.

CA-00056782-001:

The Complainant stated that he did not receive a written statement of his terms and conditions of employment at any stage during his employment.

CA-00056782-002:

The Complainant stated that section 15 of the Organisation of Working Time Act 1997 Act was breached because he always worked more than 48 hours per week. Specifically, he stated that his normal working week was from 5am until 10pm, Monday to Friday as well as six hours every Saturday.

CA-00056782-003:

The Complainant alleged that he did not receive his statutory break times. Specifically, he did not receive a break of 15 minutes every 4.5 hours that he worked or a break of 30 minutes in respect of every six- hour working period. He also alleged that he did not receive a consecutive rest break of 11 hours in every 24 hour period.

CA-00056782-004:

The Complainant asserted that he was entitled to a redundancy payment, as the Respondent had only presented an alternative work opportunity in Slane, Co. Meath—an hour away from his former base in Belgard, Dublin, where operations had ceased.

CA-00056782-001:

The Respondent stated that all of its employees were furnished with a written statement of their terms of employment but accepted that they could not provide a copy of the document that the Complainant received.

CA-00056782-002:

The Respondent denied that the Complainant worked excessive hours and stated that he had never raised a grievance in relation to working over 48 hours per week.

CA-00056782-003:

The Respondent stated that the Complainant worked away from their premises and that their foreman on site ensured that all of the workers took their rest breaks. The Respondent also asserted that the Complainant had a duty to ensure that he took his breaks and stated that he had never raised a grievance in relation to rest breaks not having been received.

CA-00056782-004:

The Respondent stated both that the contract on the Belgard site finished and the Complainant was offered an alternative role on another site, which was suitable for him.

CA-00056782-001:

The Law:

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the TE(I)A obligates an employer to provide employees with certain essential information, or core terms, in writing within five days of commencing employment. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

FINDINGS:

As there was no evidence presented to suggest that the Complainant received a written statement of his terms of employment, I find that this complaint is well founded.

CA-00056782-002:

The Complainant has submitted that section 15 of the Act was breached because he consistently worked more than 48 hours per week.

Section 15 of the of the Organisation of Working Time Act 1997 (the “1997 Act”) states:

Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, which is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

To demonstrate compliance, the Respondent is required under section 25(1) of the 1997 Act to keep appropriate records.  It is well settled that records under section 25(1) should show both the daily start and finish times as well as the timing and duration of employees’ breaks.

In circumstances where the Respondent presented some evidence in the form of a small number of timesheets which did not outline what breaks the Complainant had taken during the day, but which showed start and finish time which indicated that the Complainant worked more than 48 hours in certain weeks in the cognisable period, I find that this complaint is well founded.

CA-00056782-003:

The issue with respect to this complaint is whether the Complainant received the breaks/rest to which he was entitled under section 11 and 12 of the Organisation of Working Time Act 1997 (the “1997 Act”) during the cognisable period. 

The Complainant stated in evidence that his normal start time was 5am and he did not usually finish until 10pm, which meant that he did not receive his daily rest periods in accordance with the Act. Specifically, section 11 of the Organisation of Working Time Act 1997 provides:

11. Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Respondent’s presented evidence in the form of a number of timesheets showing his start and finish times, which the Complainant accepted he had completed, to challenge his assertion that his normal working day from Monday to Friday was from 5am until 10pm, during the cognisable period. I noted that there was documentary evidence of one occasion in the cognisable period where the Complainant did not receive a rest period of 11 consecutive hours in a period of 24 hours, namely 2 December 2022.  I further noted that only a number of timesheets in respect of the weeks that the Complainant worked in the cognisable period were presented by the Respondent.

The Complainant also stated that he did not always receive a break of at least 15 minutes when he worked for a period of 4.5 hours or 6 hours contrary to section 12 of the 1997 Act which states:

“ (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

 (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

In circumstances where the Respondent did not have a record of the breaks taken and did not present any evidence to challenge the Complainant’s evidence that he did not receive his statutory  breaks when he worked for 4.5 hours and/or 6 hours,  I must conclude that during the cognisable period the Complainant did not get the breaks to which he was entitled in accordance with section 12 of the Act.

Considering all of the foregoing, I find that this complaint is well founded. 

CA-00056782-004:

THE LAW

Section 15 of the Redundancy Payments Acts 1967 to 2014 provides as follows:

(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if –

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

FINDINGS

I note firstly that it was not disputed by the Respondent that the Complainant was working at their operations in Belgard and was offered the opportunity in February/March 2023 to move to their operations in Slane when he sought to return to work following his car accident in January 2023.

In assessing whether this “constitutes an offer of suitable employment”, as set out in the legislation above, I note that in the case of Cinders Ltd v Byrne RPD1811, the Labour Court held that the issues to be considered were “(i) the suitability of the offers of alternative employment made … on behalf of the Respondent to the Complainant; and (ii) whether the Complainant’s decision to refuse each of those offers was reasonable in all the circumstances.” Relying on Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156, the Labour Court stated that “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

Specifically, the Labour Court held that it was reasonable for the employee to refuse to move from a standalone store in the Merrion Centre, Dublin 4 to a concession within a department store in Blanchardstown or St Stephen’s Green, but unreasonable to refuse to move to a standalone store in Wicklow Street, Dublin 2 (a distance of about 6km from the Merrion Centre). The Court held that “there was no significant difference between the working environment she would have enjoyed in Wicklow Street and that she had experienced for the previous twenty or so years of her working relationship with the Respondent.”

The legal test set out in Cinders Ltd v Byrne and Cambridge & District Co-operative Society Ltd v Ruse is therefore that the suitability of an alternative offer of employment should be assessed objectively as well as from the subjective perspective of the employee.

In this case, there is no doubt that, objectively, the Complainant was to do the same role but from another location. However, from his subjective point of view, the role was unsuitable because it was one hour away from where he had previously worked.

The legal test as set out by the Labour Court above requires consideration of the objective and subjective elements of the new role offered to the Complainant. Objectively, this was the same role. Subjectively from the Complainant’s point of view, however, it was unsuitable. Specifically, he asserted that the new role was not acceptable to him because it was over an hour away from where he had previously worked.

Having regard to the legal tests cited above as well as the distance from Belgard to Slane, a journey of over an hour, I find that it was an unreasonable of the Respondent to require that the Complainant move location.

Bearing all of the above in mind, I allow the appeal and find the Complainant is entitled to a redundancy payment.

CA-00056782-001:

I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks’ remuneration, namely €3,011.72.

CA-00056782-002:

I find that this complaint is well founded for the reasons set out above.  I direct the respondent to pay the Complainant compensation of €1,500, which I consider to be just and equitable having regard to all the circumstances.

CA-00056782-003:

I find that this complaint is well founded for the reasons set out above.  I direct the respondent to pay the Complainant compensation of €1,500, which I consider to be just and equitable having regard to all the circumstances.

CA-00056782-004:

I allow the Complainant’s appeal and find that he is entitled to a statutory redundancy lump sum payment under the Redundancy Payment Acts 1967 – 2014 based on the following criteria: 

-          Date of commencement:  26 February 2018

-          Date of termination: 19 January 2023

-          Weekly wage: € 752.93

This award is made subject to the Complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

CA-00056782-005: This complaint was withdrawn.