Complainant

Respondent

Parties

Tudor Mereacre

Northway Personnel Limited

Representatives

Marius Marosan

Krystian Boino, Boino Solicitors

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-00056508-001

06/05/2023

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

CA-00056508-002

06/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056508-003

06/05/2023

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

CA-00056508-004

06/05/2023

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

CA-00056508-005

06/05/2023

On 1 April 2021, the Complainant commenced employment as a General Operative. The Complainant worked approximately 45 hours per week, including overtime. The Complainant earned approximately €18.45 gross per hour. On 5 December 2022, the Complainant received his notice. On 9 December 2022, the Complainant’s employment ended. Approximately one month later, the Complainant commenced working in a self-employed capacity as a glass-fitter.

On 6 May 2023, the Complainant submitted his WRC Complaint Form. In summary, the Complainant submits, inter alia, that:

•            He did not receive a statement of his core terms, in violation of the Terms of Employment (Information) Act 1994, as amended;

•            He did not receive his correct notice, in violation of the Minimum Notice & Terms of Employment Act 1973, as amended;

•            He was unfairly dismissed, in violation of the Unfair Dismissals Act 1977, as amended; and

•            He did not receive his paid annual leave entitlement, in violation of the Organisation of Working Time Act 1997, as amended.

The Respondent denies the complaints in their entirety. The Respondent further submits that it is an agency and that it is not the employer of the Complainant for the purposes of the unfair dismissal complaint.

The Complainant provided written and oral submissions.

The Complainant’s Evidence:

The Complainant submitted that he was employed as a General Operative and more specifically as a cleaner. He submitted that he cleaned outside, that he cleaned dust off surfaces, that he was a litter-picker, and that he took out the bins. He also submitted that he laid materials to protect surfaces from cranes. He worked on a site located in Clonee. The Complainant submitted that he usually worked 39 hours per week and six hours of overtime.

CA-00056508-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended – Core Terms:

The Complainant submitted that he did not receive a contract. He submitted that he was provided with forms to sign and that he was told to take a photo of those forms, which he did. The Complainant submitted that he was told by a supervisor, who spoke Romanian, to sign the forms. The Complainant submitted that he never saw his contract again nor received a copy of it.

Cross-Examination:

Under cross-examination, the Complainant was referred to a document entitled “Terms of Engagement” which set out all of the terms and conditions of his engagement. The Complainant confirmed that it was his signature at the bottom of the page, which was dated 1 April 2021.

The Complainant was also referred to a document entitled “Northway Personnel Limited Probationary Period and Agreed Rates of Pay”. The Complainant confirmed that it was his signature under the following statement in red font “I have received my Terms of Engagement / Contract of Employment”.

CA-00056508-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973, as amended – Notice Period:

The Complainant submitted that he was the first to be notified on the morning of 5 December 2022 that his employment would end on 9 December 2022.

CA-00056508-004 – Complaint seeking adjudication by the Workplace Relations Commission under

Section 8 of the Unfair Dismissals Act 1977, as amended – Unfair Dismissal:

The Complainant submitted that on Monday 5 December 2022, he was approached by the foreman and his supervisor, who spoke Romanian and interpreted matters. The Complainant submitted that the foreman told him that his last day was Friday 9 December 2022. The Complainant submitted that they told him that they would contact him, if they needed him again.

The Complainant submitted that he contacted the Respondent for a letter so that he could obtain social welfare, but he did not receive a response. The Complainant submitted that he contacted the Respondent four times. The Complainant submitted that he had a family to provide for.

The Complainant submitted that approximately one month later he returned to Ireland from Moldova and he commenced work in a self-employed capacity as a glass-fitter. He submitted that he earns approximately €800 per week, working approximately 50-54 hours per week.

CA-00056508-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended – Annual Leave Pay:

The Complainant submitted that when he went on annual leave, he was only paid for a 39-hour week. The Complainant submitted that as he worked more than 39 hours per week, his annual leave pay should be commensurate. The Complainant’s Representative placed particular emphasis on, inter alia, Kamil Lemanski v. Rutledge Recruitment and Training Ltd., DWT15102. Finally, the Complainant’s Representative also relied on Carlow County Council v. Mr Eamonn Ryan DWT2312, dated 29 June 2023.

The Complainant submitted that when he went on annual leave, he was paid “a mixture” of 39 and 21 hours. He submitted that he does not know exactly how much annual leave he was paid for. He submitted that for a full week of annual leave, he was only paid for a 39-hour week. He further submitted that he does not know when his annual leave accrued.

Cross-Examination:

Under cross-examination, the Complainant was referred to his last payslip from the Respondent dated 15 December 2022.

The Complainant confirmed that he was paid as indicated in the same payslip. This included pay for accrued annual leave of 48.12 hours. The Complainant submitted that he did not know if it was incorrect.

The Respondent provided written and oral submissions.

CA-00056508-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended – Core Terms:

The Respondent submitted that this complaint was out of time insofar as the last date of possible contravention was two months after the Complainant’s commencement of employment.

The Respondent further submitted that the Complainant had received his core terms on 1 April 2021. To this end, the Respondent referred to:

·            The document entitled “Terms of Engagement” which the Complainant confirmed that he had signed;

·            The document entitled “Northway Personnel Limited Probationary Period and Agreed Rates of Pay”. The Respondent submitted that the Complainant had confirmed that it was his signature under the following statement in red font “I have received my Terms of Engagement / Contract of Employment”; and

·            The Complainant’s evidence that he had taken photos of the above documents, as instructed.

CA-00056508-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973, as amended – Notice Period:

The Respondent referred to the Complainant’s evidence that he received his notice on Monday 5 December 2022 that his last day of work would be Friday 9 December 2022. The Respondent submitted that this was one week’s notice, as required by the Minimum Notice & Terms of Employment Act, 1973 as amended.

CA-00056508-004 – Complaint seeking adjudication by the Workplace Relations Commission under

Section 8 of the Unfair Dismissals Act 1977, as amended – Unfair Dismissal:

The Respondent submitted that as it is an employment agency, it is not the employer for the purposes of the Unfair Dismissals Act 1977, as amended. In this regard, the Respondent sought to rely on section 13 of the Unfair Dismissals (Amendment) Act 1993. The Respondent also referred to a previous WRC decision, ADJ-00028156, concerning an unfair dismissal complaint against the Respondent, brought by a worker from the same site as the Complainant, during approximately the same timeframe. In that decision, it was found that the Respondent was not the correct respondent for the unfair dismissal complaint, as per section 13 of the Unfair Dismissals (Amendment) Act 1993.

The Respondent referred to the Licence which it had been awarded by the Minister for Enterprise, Trade & Employment, pursuant to section of the Employment Agency Act 1971 (No. 27 of 1971). This licence was provided to the Respondent in its capacity as an employment agency.

CA-00056508-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended – Annual Leave Pay:

The Respondent submitted that the complaint was unclear insofar as there was insufficient detail. The Respondent submitted that the Complainant had provided only an average of hours worked and had provided no indication of timeframes relating to the complaint.

The Respondent submitted that the Complainant accepted in his evidence that he had been paid his outstanding annual leave, as per his final payslip dated 15 December 2022.

The Respondent submitted that for the purposes of calculating annual leave, overtime is not included. In this regard, the Respondent relied on section 3 of S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.

Finally, the Respondent submitted that the Complainant had not met the conditions set out by the Labour Court in Carlow County Council v. Mr Eamonn Ryan DWT2312, dated 29 June 2023, in order for overtime to be included in annual leave calculations.

CA-00056508-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended – Core Terms:

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.

Findings and Conclusion:

The Complainant commenced his employment on 1 April 2021. It was clear from the dated documentary evidence that the Complainant received his core terms of employment in writing, that same day.

In his evidence, the Complainant confirmed that he signed the documents entitled “Terms of Engagement” and “Northway Personnel Limited Probationary Period and Agreed Rates of Pay” on 1 April 2021. He specifically confirmed that it was his signature under the following statement in red font “I have received my Terms of Engagement / Contract of Employment”. The Complainant confirmed that he took photos of the documents, as instructed.

In the circumstances, I find that the Complainant received his core terms of employment in writing and that this complaint is not well founded.

CA-00056508-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Industrial Relations (Amendment) Act 2015:

As noted above, this complaint was withdrawn.

CA-00056508-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act, 1973 as amended – Notice Period:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week.”

Section 1 of the MNTEA defines “week” as “any period of seven consecutive days”.

Findings and Conclusion:

The Complainant worked from 1 April 2021 until 9 December 2021 – a period of less than two years. Therefore, pursuant to section 2(a) of the MNTEA, he was entitled to one week’s notice. The MNTEA defines a week as “a period of seven consecutive days”. On his evidence, the Complainant received his notice on Monday 5 December 2022 and his last day of employment was Friday 9 December 2022.

I note that section 1 of the MNTEA defines “week” as “any period of seven consecutive days”. In the circumstances, I find that section 4 of the MNTEA was contravened and the complaint is well founded. Therefore, I direct the Respondent to pay the Complainant €170 (approximately one day’s pay).

CA-00056508-004 – Complaint seeking adjudication by the Workplace Relations Commission under

Section 8 of the Unfair Dismissals Act 1977, as amended – Unfair Dismissal:

The Law:

Section 13 of the Unfair Dismissals (Amendment) Act 1993 provides:

“Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement—

(a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.”

Findings and Conclusion:

I am satisfied that the Respondent is an employment agency and that it is not the employer for the purposes of the Unfair Dismissals Act 1977, as amended. To this end, I refer to a previous WRC decision, ADJ-00028156, concerning an unfair dismissal complaint against the Respondent, brought by a worker from the same site as the Complainant, during approximately the same timeframe.

I note that in its capacity as an employment agency, the Respondent was awarded a Licence by the Minister for Enterprise, Trade & Employment, pursuant to section of the Employment Agency Act 1971 (No. 27 of 1971).

In the circumstances, I find that the Complainant was not unfairly dismissed and the complaint is not well founded.

CA-00056508-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended – Annual Leave Pay:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27 of the OWTA empowers an adjudication officer to do one or more of the following:

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

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Section 3 of S.I. No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 provides:

“3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.”

In Carlow County Council v. Mr Eamonn Ryan, DWT2312, the Labour Court relied in particular on two cases from the Court of Justice of the EU (the “CJEU”) - Torsten Hein v. Albert Holzkamm GmbH & Co. KG., C-385/17 and DS v. Koch Personaldienstleitungen GmbH, C-514/20. The Labour Court noted the CJEU’s finding that regular rostered overtime should be included in the calculation of annual leave pay. The Labour Court found that:

"the overtime is regular, and predictable and that the corresponding pay, constitutes a significant element of his total remuneration. Therefore, it should be included as normal remuneration due under the right to paid annual leave."

Findings and Conclusion:

The Complainant submitted his Complaint Form to the WRC on 6 May 2023. Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2022 until 31 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the Workplace Relations Act 2015 (the “WRA”), I can consider a complaint from 7 November 2022. As the Complainant’s last day of employment was 9 December 2022, I can only consider a complaint concerning annual leave accrued from 7 November 2022 until 9 December 2022.

I note that the Complainant failed to provide sufficient detail concerning his complaint insofar as:

·            He did not provide sufficient detail concerning his overtime. I had sight of only one payslip dated 15 December 2022, which referred to ten hours of overtime. This did not demonstrate that overtime was regular or predictable.

·            He did not know how much annual leave he had already been paid for.

·            He did not know when his unpaid annual leave had accrued.

·            He confirmed that he received payment for 48.12 accrued annual leave hours, when his employment ended. In his evidence, the Complainant submitted that he did not know if this was incorrect.

In the circumstances, I find that the complaint is not well founded.

CA-00056508-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994, as amended – Core Terms:

For the reasons set out above, this complaint is not well founded.

CA-00056508-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Industrial Relations (Amendment) Act 2015:

As noted above, this complaint was withdrawn.

CA-00056508-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act 1973, as amended – Notice Period:

For the reasons set out above, the Minimum Notice & Terms of Employment Act 1973 as amended was contravened and this complaint is well founded. I direct the Respondent to pay the Complainant €170.

CA-00056508-004 – Complaint seeking adjudication by the Workplace Relations Commission under

Section 8 of the Unfair Dismissals Act 1977, as amended – Unfair Dismissal:

For the reasons set out above, I find that the Complainant was not unfairly dismissed and the complaint is not well founded.

CA-00056508-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997, as amended – Annual Leave Pay:

For the reasons set out above, this complaint is not well founded.

Terms of Employment (Information) Act 1994, Minimum Notice & Terms of Employment Act 1973, Unfair Dismissals Act 1977,Organisation of Working Time Act 1997.