ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048788

Parties:

Complaints:

Date of Adjudication Hearing:  26/03/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings. At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in.  Both parties were offered, and availed of, the opportunity to cross-examine the evidence.

Background:

The Complainant worked as a Yard Transport Operative for the Respondent from 5th December 2022 to 4th August 2023.  He contends that he did not receive written terms of employment, that he did not receive the correct payment in lieu of minimum notice and that his pay was unlawfully reduced when he was to be given a work vehicle/van. 

Summary of Complainant’s Case:

The Complainant stated that he was employed as a Yard Operative from 5th December 2022 to 4th August 2023.  He stated that he was called in to the office on 4th August 2023 and told that things were not working out and he would have to be let go.  His complaints were considered at hearing.

CA-00059701-001           Terms of Employment (Information) Act 1994

The Complainant stated that he never received a written contract of employment.

CA-00059701-003           Minimum Notice and Terms of Employment Act 1973

The Complainant stated that he never received minimum notice payment and he denied that the last payment included payment in lieu of minimum notice.  He stated that that payment was for a ‘week in hand’ i.e. arrears of pay from the first week of his employment.

CA-00059701-004           Payment of Wages Act 1991

The Complainant stated that the Respondent reduced his pay during the last 5 weeks of his employment.  He contends that this was done on the promise of a van to be provided.

CA-00059701-005           Terms of Employment (Information) Act 1994

This complaint refers to not having received core terms of employment within 5 days of commencement.

Summary of Respondent’s Case:

CA-00059701-001           Terms of Employment (Information) Act 1994

The Respondent believes this claim is not well founded as they instructed their Human Resources Representative on 1st February 2023 of the new employee (the Complainant) and received a reply on 2nd February 2023 from the Human Resource Representative enclosing the contract and relevant paperwork.   Mr D of the Respondent gave evidence that he offered this contract to the complainant and discharged his obligations under the Terms of Employment (Information) Act 1994.  Mr D stated that the Complainant wouldn’t take the contract when offered to him.

Case law submitted

While the facts of the case differ to the present case, the respondent refers to the decision of Irish Water v Patrick Hall (TED161) where it was concluded as follows: “The Complainant signed the statement without demur and returned it to the Respondent. Neither then or at any subsequent time did he request further or better particulars on any matter pertaining to his employment. The Court has no doubt that had he sought further information on any matter pertaining to his employment, including the matters which form the subject of his present complaints, it would have been provided by the Respondent.”

It was further concluded as follows “No submission has been made to the Court to the effect that the Appellant suffered any detriment as a result of these breaches. The Court measures the compensation amount which is just and equitable having regard to all of the circumstances of this case as being nil.”

CA-00059701-003           Minimum Notice and Terms of Employment Act 1973

The Complainant states that he did not receive his payment in lieu of notice. The Respondent claims this is wholly untrue and refers to Mr Coyle’s payslips clearly showing all payslips for the duration of this employment.  The Complainant received payment of €895.65 gross pay week ending 12th August 2023 which included his notice pay, as per the minimum notice period for the duration of his employment which was between 13 weeks and two years.

CA-00059701-004           Payment of Wages Act 1991

The Complainant states that “from the end of May my take home salary went from €725 to €600 as (the Respondent) explained to me that they were getting a company van”. The Complaint goes on to state that he never received the van.  The Respondent states that the complaint regarding the van is unfounded and Respondent refers to a white van that was provided to the Complainant during his employment.  The Respondent states that he was approached by the Complainant who requested a wage reduction to qualify for Housing Assistance Payment Scheme (HAP). The Respondent was acting on the Complainants request.

CA-00059701-005           Terms of Employment (Information) Act 1994

The Respondent states that they tried to give the Complainant his written contract but he would not accept it.

Findings and Conclusions:

CA-00059701-001           Terms of Employment (Information) Act 1994

I note the Respondent received the contract of employment from their Human Resources Representative with the clear instruction to sign the contract and give one copy to the employee.  Section 3 of the Act provides the obligation of the employer to furnish the contract to the employee.  I note the evidence of the Respondent that the Complainant refused to accept the contract.  However, the burden of proof under section 3(1) of the Act lies with the Respondent.  While it may be the case that the Complainant refused to accept the contract as was the evidence of the Respondent, as the onus lies with them they could have posted a signed and dated contract to the Complainant to discharge their obligations under the Act.   Accordingly, I find that the Respondent breached the provisions of section 3(1) of the Act in relation to the Complainant.                                    I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €720 compensation.

CA-00059701-003           Minimum Notice and Terms of Employment Act 1973

The Complainant states that he did not receive his payment in lieu of notice. The Respondent claims this is wholly untrue and referred to his payslips clearly showing all payslips for the duration of this employment.  According to the Respondent in their evidence, the Complainant actually walked out of his employment after he was called in to be told he was ‘not working out’ and the Respondent contends that was not a dismissal.  In those circumstances, if that scenario is correct then the Complainant would not be entitled to minimum notice.  However, the Respondent then contends in their written submission, that all relevant payments were made to the Complainant including minimum notice.   While the explanation for the final payslip/final payment is not entirely clear as to whether the payment relates to minimum notice, ‘week in hand’ or payment for annual leave I find on the balance of probabilities, that the Respondent paid to the Complainant wages correctly due at the end of his employment.  I find the complaint to be not well founded.

CA-00059701-004           Payment of Wages Act 1991

There was conflict of evidence in relation to the reduction in the Complainant’s wages from €720 to €629.96 during the last weeks of his employment.  The Complainant stated that this was because he was promised a van.   The Respondent produced evidence of a van being available to the Complainant during the course of his employment.  The Respondent also stated that the Complainant requested a reduction in his pay so that he could avail of H.A.P. payment.   The conflict of evidence in this matter is irreconcilable.  However, for whatever reason, the fact is that the Complainant’s wages were reduced by €90.04 per week during the period of his employment as shown by the payslips furnished as follows:

24/06/2023

01/07/2023

08/07/2023

15/07/2023

22/07/2023

29/07/2023

The applicable law

Section 5 of the Act provides:

 I find that as none of the above requirements were met, the Respondent unlawfully deducted the sum of €540.24 from the wages of the Complainant.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €540.24 less all lawful statutory deductions, tax, PRSI and USC where applicable.

CA-00059701-005           Terms of Employment (Information) Act 1994

I find that the Responded breached both section 3(1) and section 3(1A) of the Act in relation to the Complainant, and I find the complaint to be well founded. However, as each separate infringement of section 3 of the Act does not entitle the Complainant to separate compensation, I make no further award in this case.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints  in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00059701-001           Terms of Employment (Information) Act 1994

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €720 compensation.

CA-00059701-003           Minimum Notice and Terms of Employment Act 1973

I have decided that the complaint is not well founded.

CA-00059701-004           Payment of Wages Act 1991

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €540.24 less statutory deductions.

CA-00059701-005           Terms of Employment (Information) Act 1994

I have decided that the complaint is well founded and I make no award.

Dated:   14th May 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: