ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047454
Parties:
| Complainant | Respondent |
Parties | Martynas Januskauskas | Killark Ltd. |
Representatives | In person | Paul and Evelyn Matthews |
Complaint(s):
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 | CA-00057901-001 | 25/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057901-002 | 25/07/2023 |
Date of Adjudication Hearing: 14/02/2024
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant in this complaint contends that he was unfairly dismissed. He also complains that pay was unfairly deducted from his wages, because he was not paid travel time on holidays and on bank holidays |
Summary of Complainant’s Case:
CA-00057901-001 The Complainant under affirmation gave the following evidence: He was working for the Respondent as a general operative/ fitter. His employment with the Respondent commenced on 1 July 2021 and ended on 30 June 2023. His work for the Respondent was supplied to a third party, BAM, on a construction site for the company Intel. On 23 June 2023 his employer gave him one week of minimum notice advising him that his last working day would be 20 June 2023. He accepts that the work on the Intel site had diminished however he was not considered for other work that was being done by the Respondent, that he believes was available, such as a construction job that the Respondent had in Limerick. He considers that it was deliberate that he was dismissed one day before his redundancy entitlement would have become operative (one day less than two years of employment.) He accepts that there was a redundancy situation on site however he thinks that his dismissal was unfair because, due to a work injury that he sustained on site, he was on sick leave when he was dismissed and this makes his dismissal automatically unlawful. CA-00057901-002 The time that it took the Complainant to travel to work each day was 2.5 hours. The Complainant contends that on the days that he was on holidays (in the 6 months prior to the breach) and on the bank holidays during this period, when the Complainant was not at work, that he was entitled to be paid travel time. To clarify, he is not contending that he should be paid for travel time when he was working. Rather his complaint is that when he was on annual leave and on bank holidays (when he was not working) that he should have been paid for his travel time.
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Summary of Respondent’s Case:
Under affirmation Mr. Paul Matthews, one of the two owners of the Respondent business gave the following evidence: CA-00057901-001 The Complainant started working as a fitter on 1 July 2021. He worked on the Intel site under the direction of the project management company, BAM. The Respondent provided labour to BAM for construction work on this site. BAM decided the numbers of staff that they required. The Respondent recruited or laid off staff depending on BAM’s requirements on the site. In November 2022 BAM advised the Respondent that as the construction job was reaching its conclusion on the Intel site, the two-year (supply of labour) contract that they had with the Respondent would be reaching an end and less workers would thereafter be required. The Respondent advised their staff accordingly. At that point the Respondent had been asked, by another contractor to supply labour for a construction job in Limerick. All the Respondent staff were asked then if they were willing to travel to Limerick. All the responses that were returned (including that of the Complainant) were that they were unwilling to travel. The Respondent told the contractor that none of their workers were prepared to travel and the contractor thereafter went to another labour provider. The following February 2023 BAM informed them that the need for workers had decreased and that the Respondent’s work would cease that month. On foot of this the Complainant along with other workers received notice that their employment would end in February 2023. There was a reprieve later in February when BAM advised the Respondent to hold all staff (ie maintain their availability) until 17 March 2023. The Respondent advised the Complainant and the other workers accordingly and the work then lasted until May/June 2023. As the cut off deadline approached BAM advised the Respondent that they would only require only two experienced (specific) workers to be retained from the start of June onwards. At that stage on 23 June 2023 the Complainant was given notice that his employment would end one week later, on 30 June 2023. There was no alternative work for the Complainant to be considered for. Despite what the Complainant said in evidence, there was no jobs in Limerick. There could have been jobs in Limerick if any of the workers had agreed to live in Limerick the previous November, but when no one was interested, that work went to another company. The Intel job was a great contract for the Respondent to get but it meant that all other smaller jobs were lost and there was a gap then between the ending of the Intel job and gaining other contracts. The Respondent is a small family company. Its staff expands or reduces depending on what jobs they get or what work they are asked to supply labour for. The Complainant was dismissed for reason of redundancy. The work on the Intel site had come to an end. He had plenty of notice of that fact, seeing as they were all told in February 2023 that their employment would end then and that the extension to June was a bonus. There was no other work available when he was dismissed for reason of redundancy. AS the Complainant did not have more than two years service he was not entitled to a redundancy payment.
CA-00057901-002 Despite what the Complainant contends, he is not entitled to travel time on days that he is on holidays and not working.
Evelyn Matthews, co-owner of the Respondent business gave the following evidence under affirmation: She corroborated the evidence of Mr. Matthews in terms of the reason why the Complainant’s position was terminated. The Complainant had refused a job in Limerick the previous November because he did not wish to travel He was given notice that his employment would end in February 2023 although that did not happen in fact until June 2023 He did less than two years work when he was made redundant and therefore he was not entitled to a redundancy payment. The timing of that was decided by her. The Complainant is incorrect to assert that an employee who is dismissed for reason of redundancy when he is on sick leave is automatically unfair. A redundancy situation clearly existed. There was a diminishing need for employees because BAM no longer had work for the workers on the Intel site. There was no other alternative work for the Complainant to do for the Respondent in June 2023 because they were a small business and once the Intel site contract ended, they had no other contracts. There was no other alternative work available to offer the Complainant, suitable or otherwise. CA-00057901-002 The Complainant is not entitled to be paid travel time on holidays that he did not have to travel. The legal basis for this complaint has not established by the Complainant
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Findings and Conclusions:
CA-00057901-001 Unfair Dismissal I am satisfied that a redundancy situation arose on 23 June 2023. I accept that there was a diminishing need for employees on the Intel site on which the Complainant was engaged. I accept that the project management company BAM, advised the Respondent that the work would end initially in February 2023 which was then extended until June 2023. The Complainant did not contest this. I accept that from June 2023 onwards only two workers that were specifically requested by BAM continued on site to complete the contract. Given this situation I find that the Respondent was entitled to effect redundancies to its work force, which included the Complainant. The Complainant is not entitled to a redundancy payment as he had worked less than two years. The Complainant is not legally correct to contend that a redundancy situation does not arise and the decision to effect redundancies may not be taken if an employee is on sick leave. I find this complaint to be not well founded.
CA-00057901-002 Payment of Wages This complaint appears to be based on a misunderstanding of what the Complainant is entitled to. There is no statutory right for the Complainant to be paid travel time on days that he was not travelling. The Complainant has not established the legal basis for this assertion and as the onus is on the Complainant to prove his case, I find this complaint to be not well founded.
Post-Hearing Communication received from the Complainant and reply thereto. Following the hearing on 14 February 2024 the Complainant emailed the WRC on 15 February 2024 and requested that the investigation take a different approach. He asked that the Adjudicator request that the Respondent provide the WRC with the employment details of the two workers that were retained by BAM in June 2023. He stated their work commencement dates. He also that he had spoken to an employee of BAM since the Adjudication hearing who said that BAM’s need for employees continued after June 2023. The Adjudicator replied to this by email dated 21 February 2024 stating that an Adjudication hearing is required to be conducted by way of hearing sworn evidence. She stated that his request to seek further information from the Respondent was being refused because; the purpose of this request was not clear (there being no suggestion during the hearing that his selection for redundancy was unfair) ; there was no jurisdiction to seek unsworn evidence from a third party, such as BAM; a witness request could have been but was not made by the Complainant prior to the hearing and the Complainant did not dispute the WhatsApp messages evidence that the Respondent relied upon during the hearing which showed that BAM had advised them in February 2023 that the work would end on site for all Respondent employees on 17 March 2023, which was later extended until June 2023. She stated that at the conclusion of the Adjudication hearing the Complainant was allowed additional time (until 21 February 2024) to furnish submissions to the WRC on the Payment of Wages complaint. The Complainant agreed at the hearing that if he intended furnishing such written submissions that he would do so by close of business on 21 February 2024. The Adjudicator advised that if the Complainant now wished to request further additional time to allow him furnish submissions that this request should be received by the WRC by close of business of 21 February 2024 or else the Adjudicator would proceed to draft and issue the decision. No such request having been received by the WRC before close of business on 21 February 2024, the Adjudicator proceeded to draft this decision.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00057901-001 This complaint is not well founded CA-00057901-002 This complaint is not well founded
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Dated: 01/03/2024
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Unfair Dismissal - Payment of Wages - payment of travel time when on holidays |