Complainant

Respondent

Parties

Wayne  Reilly

Shannon Transport & Warehousing Company

Complainant

Respondent

Anonymised Parties

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Representatives

Muireann McEnery

Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055264-001

21/02/2023

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

CA-00055264-002

21/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00055264-003

21/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00055264-004

21/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00055264-005

21/02/2023

The complainant lodged five claims against the Respondent  under the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994, the Safety health and Welfare at Work Act 2005, the Protection of Employees ( Part-Time Work) Act 2001 and the Parental Leave Act 1998.

The claims were lodged on 21st of February 2023 therefore the cognisable period for the claim’s dates from 22nd of August 2022 to 21st of February 2023.

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

CA-00055264-001

21/02/2023

The complainant submits that he is owed expenses dating from his start date with the respondent on 30th April 2018 up to 8th November 2021.

He also submits that he is owed for Saturdays worked for which he was paid less than the amount due to him.

The Claimant is now seeking payment of expenses from his start date with the respondent to 8th November 2021.

The Claim under the Payment of Wages Act was received by the WRC on 21 February 2023 and the cognisable period under the Act is therefore 22nd August 2022 to 21 February 2023. If reasonable cause for an extension is granted this period dates from 22nd February 2022 to 21st February 2023.   

The claim lodged in respect of the expenses relates to the period from 30th of April 2018 to 12th of November 2021 and taking either timeframe it is substantially outside that allowed by the Payment of Wages Act.

Another claim under the Payment of Wages Act as set out in claim form related to an alleged under payment for Saturday work for which the complainant said he was to get €150 but only received €60 or €70. 

Pre liminary issue in respect of  expenses claim

On 30th April 2018 the Claimant transferred to the Respondent in accordance with the Transfer of Undertaking Regulations 2003.  

In or around 8th August 2021 an agreement was reached to change the Claimants rate of pay and it was proposed by the Respondent and accepted by the Claimant to move from €120 Net take home daily rate to €156 per day gross + daily driver expenses of €14.01.  The Claimant wrote to respondent HR on the 8th of November 2021 confirming that he accepted this pay rate. Additionally, it was agreed that this rate would be back dated to 25th October 2021.

From the week starting 8th November 2021, the Claimant's salary was increased to €780 gross per week over 5 days/ €156 daily rate gross, along with €14.01 as a daily driver expense rate. There was an additional daily Saturday rate of €150 gross if worked.

The Claimant is now seeking payment of expenses from his start date with STL to 8th November 2021

The respondent submits that the expenses claim under the Payment of Wages Act was received by the WRC on 21 February 2023 and the cognisable period under the Act is therefore 20th August 2022 to 21 February 2023. If reasonable cause for an extension is granted this period is then 20th February 2022 to 21st February 2023

The within claim is for the period 30/04/2018 to 12/11/2021 and taking either timeframe it is substantially outside that allowed by the Payment of Wages Act. The Respondent's position is therefore that the Adjudication Officer does not have jurisdiction to hear this claim.

The Complainant when asked at the hearing why he had not submitted the claim within the 6 months’ timeframe stated that he was unaware of the time limits involved.

The respondent stated that ignorance of law is no excuse and stated that the complainant  could have availed of assistance from Citizens Information.

I am satisfied that the claim in respect of expenses allegedly due in the period dating back from 8th of November 2021 is out of time and accordingly this aspect of the claim fails.

Another claim under the Payment of Wages Act as set out in claim form related to an alleged under payment for Saturday work for which the complainant said he was to get €150 but only received €60 or €70.  The Complaint form set out the date of this as 24/11/2022 but at the hearing the complainant stated there were about 5 days involved.     The respondent at the hearing stated that the €150 Saturday payment was a gross figure and stated that deductions such as tax would have been taken after that.  However, the respondent agreed to look into the payments made in accordance with dates submitted by the complainant.

The complainant agreed to submit details of these dates, and the respondent agreed to look into the matter and respond once provided with the dates.  Post hearing submissions from the parties indicated that the complainant worked 3 Saturdays during the relevant period of the complaint.  The respondent in its reply acknowledged that there was an issue with the payroll for the W/E 29th July 2022 payroll whereby the complainant was paid a basic €110 for Saturday work which should have been €150.   The respondent agreed that €40 was owed to the complainant in this regard.

Accordingly, I declare this aspect of the claim to be well founded.  Having regard to all of the circumstances I direct the respondent to pay the complainant €40 in respect of the deduction.

I declare this claim to be in part well founded and I direct the respondent to pay the complainant €40 in respect of the deduction.

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

CA-00055264-002

21/02/2023

The complainant submits that he has not received a copy of his terms and conditions of employment or the company handbook despite requesting it on numerous occasions.

The respondent accepts that the complainant did not receive a written statement  of his Terms and Conditions of employment.  

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The respondent at the hearing accepted that the complainant did not receive a written statement of his Terms and Conditions of employment.  

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2,340     in compensation.

I declare this complaint to be well founded and direct the Respondent to pay the Complainant €2,340  in compensation in this regard.

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00055264-003

21/02/2023

The complainant submits that he was penalised by the respondent after refusing to drive an unhygienic truck due to health and safety reasons.

The respondent submits that there was no issue raised under the Safety, Health and Welfare at Work Act, 2005 and that there was no penalisation of the complainant.  The respondent submits that the complainant had refused to work on 15th November 2022 stating there was no truck/ tools to complete his driver job because the truck he wanted was not available when he arrived.   The reason that the usual truck was not available was because another driver got delayed that day and was not back In time. The employee was offered another vehicle, but the Claimant declined to drive this truck as he felt it was too dirty to drive.

The respondent submits that the vehicle was fit for purpose and was road worthy and there were no Health and Safety issues raised apart only from the Claimants own personal view that it was dirty. The Claimant however continued to refuse to use the truck and ultimately left work without informing his manager, On that basis the Claimant was not paid for the shift as payment is based on a set fee for delivery of items which is a full day's rate.  The Claimant was not paid as he did not complete his work, and it was not in the manner of a penalisation for making a complaint of a breach of any Health and Safety requirements by the Respondent, this was made very clear to the Claimant. There is no evidence of the Claimant having made a formal complaint of any breaches of Health and Safety apart only from his assertion that the truck was dirty, there is clearly no basis for a claim under S.27 of the Act.

The Complainant advised the hearing that he was not paid for day on which he showed up for work the only truck available to him was unhygienic and so he refused to drive the truck and went home after an hour.  The complainant argued that he was unable to drive the truck as it was filthy and smelled of smoke.    

The complainant told the hearing that the truck he usually drives had on that occasion been assigned to another driver who had  left on a job at 2.30 a half hour before the complainant started work that day.

The respondent argued that complainant was only being asked to use the truck in question for 1 hour to go to the port and back.    The respondent argued that the complainant left work before raising matter with the planner and without giving the respondent an opportunity to resolve matters.  The respondent stated that the complainant had no  permission from anyone to leave work . 

The respondent advised the hearing that no issue was raised under Safety, Health and Welfare at Work Act, 2005 and that there was no penalisation of the complainant.   The respondent stated that the complainant was not paid for the day as he did not work.

The complainant advised the hearing that the act of penalisation was the failure to pay him for that day.    He clarified that he was not seeking full day’s pay but that he was seeking reimbursement for mileage and tolls incurred by him to get to work.   The respondent stated that the complainant was not paid as he did not work he went home without permission so no entitlement to pay. 

Under section 27 of the Safety, Health and Welfare at Work Act, 2005 an employee cannot be penalised for making a complaint or representation to his employer in relation to any matter relating to safety, health and welfare at work.

In the case Paul O'Neill v Toni & Guy Blackrock Limited (HSD095) the Labour Court has interpreted section 27 of the Act as follows

"It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed for' having committed one of the acts protected by 2713). Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the claimant having committed a protected act”.

I am satisfied that the complainant in this case was not penalised in retaliation for making a complaint in relation to any matter relating to safety, health and welfare at work.   Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00055264-004

21/02/2023

The complainant submits that he was treated less favourably than full time workers. 

The respondent submits that the complainant is a full-time worker since 2022 and so the part time workers legislation does not apply to him.

The complainant submits that he was treated less favourably than full time workers.

The respondent advised the hearing that the complainant is a full-time worker since 2022 and so the part time workers legislation does not apply to him.

 The complainant at the hearing agreed that this was the position.

Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00055264-005

21/02/2023

The complainant submits that that he was not permitted to take  force majeure leave and that he was not paid for 1 day when he took force majeure leave.

The respondent submits that the complainant’s application was refused as it did not come within its policy as the reason provided for his request was due to his wife being sick and that he had to collect two kids from school. 

This relates to claim in respect of a force majeure application which was refused.

The complainant advised the hearing that he applied for force majeure leave on 8th February 2023 as his wife was unwell and he had to look after his children.  The complainant did not attend work on the day in question but phoned in advising that he would be taking force majeure leave for the reason stated.   The complainant stated that he was asked to provide a doctor’s note which he did the following day.

The doctors note stated that the complainant “is/was suffering from force majeure- family unwell including wife so had to look after children.”

There was a dispute at the hearing as to whether the complainant had at the time advised the respondent that his kids were also unwell or whether he had said that he needed to collect the kids from school due to his wife being sick.

The respondent advised the hearing that the complainant phoned in on the day in question to say that he would not be working that day and that he would be taking a Force Majeure day as his wife was sick and he had to collect his kids from school.   Later that day he emailed the respondent confirm this, following which he received a reply advising him of the Force Majure policy and asking for evidence of the illness.

The doctors note referenced above was provided.  The complainant was later advised that this request did not meet the criteria of the legislation for force majeure.   The respondent in its response quoted Section 13 of the Parental Leave Act 1998 to 2006 setting out that ‘The Act states that an employee shall be entitled to leave with pay, where for urgent family reasons, owing to illness or injury of a specified person, where the immediate presence of the employee either at home or elsewhere is indispensable”.

The respondent advised the hearing that by the Claimant's own admission his presence was not required for the reasons as set out under section 13 but rather to collect his children from school.   

The respondent added that these are clearly not the circumstances the legislation is designed to cater for, and the Respondent maintains its position that this set of circumstances do not fall within the parameters of the definition of Force Majeure Leave as set out in the Parental leave Act 1998.

There was some dispute at the hearing as to whether the complainants’ children were also unwell at the time but his written correspondence to the respondent indicated that his wife was unwell and that he had to look after his children and collect them from school.   

In considering the circumstances of the application I am cognisant of the Labour Court decision in Thermo King -v- Nolan PLD171 where the Labour Court held that the Act can only have application on a day when all the circumstances set out in Section 13(1) are present.   I also note that the doctor’s note provided in support of the within application stated that the complainant “is/was suffering from force majeure- family unwell including wife so had to look after children.”  

Having considered all of the circumstances of the instant case,  I  find that the complaint made pursuant to the Parental Leave Act, 1998 is not well founded.  

For the reasons outlined above, I find that the complaint made pursuant to the Parental Leave Act, 1998 is not well founded.