Complainant

Respondent

Parties

Florin  Florescu

Shamma Electronics Limited

Representatives

Self-represented

Sohaib Kalid

Act

Complaint Reference No.

Date of Receipt

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

CA-00064205-001

20/06/2024

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

CA-00064205-002

20/06/2024

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

CA-00064205-004

20/06/2024

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

CA-00064205-005

20/06/2024

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

CA-00064205-006

20/06/2024

The complainant was employed as an Electronic Technician from 2001 up to 24th February 2024. His complaints are that he did not receive holiday pay, public holiday pay and did not get adequate breaks.

His other complaints are that he did not receive a contract of employment nor did he receive payment in lieu of notice.

The respondent representative denies that there are any monies due to the complainant, that he received adequate breaks and that a contract issued in May 2023.

Summary of Mr Florescu’s Evidence

The complainant outlined that he was not paid for holidays or public holidays. He put into evidence two payslips which showed he was paid for holidays on dates in October 2023, he claimed he was not on holidays and was in work for some of that time. He said he was paid a few times over the years when on holidays.

He worked some public holidays although did not specify the days he worked.

He did not receive breaks during busy periods although did not specify the dates when he could not avail of a break.

He did not receive an employment contract. He never asked for one as he trusted his employer initially. When he was shown a signed contract by the respondent at the hearing, he said that this was not his signature.

He said he was not paid when he was sent home from work at the end of his employment on 24th February 2024. He clarified as per his complaint form, that he made an unfair dismissal complaint to the WRC (ADJ-00050909) which found that he resigned his employment on 24th February 2024. He said that this decision was not under appeal.

Summary of Mr Kalid’s Evidence

Mr Kalid put into evidence timesheets of the hours worked and breaks taken. He said each staff member signed the sheets although over the last weeks of employment, the complainant refused to sign. He said that breaks were synchronised to ensure all staff got breaks. He said the complainant got breaks and he saw the complainant on breaks occasionally.

He said that a contract of employment was presented to the complainant in May 2023 and that the complainant signed it. He put the contract of employment into evidence which showed two signatures.

Summary of Mr Brennan’s Evidence

Mr Brennan gave evidence that he witnessed the complainant signing the contract. He said he seen the complainant on breaks. He said the complainant was not always too busy to take breaks. He is now undertaking the complainant’s work, and he can manage the workload so that he can take breaks.

The complaint form was received by the WRC on 20th June 2024. The cognisable period when a breach of the Working Time Act, Terms of Employment Act or Payment of Wages Act could have occurred is from 21st December 2023 to 20th June 2024. The complainant resigned on 24th February 2024. Therefore, the period of any breaches under the Acts is from 21st December 2023 to 24th February 2024.

Working Time Act Complaints

CA-00064205-001 Complaint on Annual Leave

Section 19 sets out the statutory entitlement to Annual Leave

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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.

There is a conflict in evidence as to whether the complainant received his statutory leave. The complainant has provided scant evidence of holidays taken and the number of days due to him. Payslips were put into evidence that he was paid for some annual leave although he claims he worked for some of that period in October 2023.

In the Labour Court Decision of PMc Painting Contractors Ltd v Patriycja Kwidzinska DWT 224 even though no records were available from the employer, there was still an onus on the employee to present the specific occasions when breaches occurred. The issue of being in work in October 2023 and not on holidays falls outside of the cognisable period commencing on 21st December 2023.

For the reasons outlined, I find that there was no breach of the Act.  

CA-00064205-002 Complaint on Public Holidays

Section 21 sets out entitlements in respect of public holidays:

21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely-

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay.

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The complainant said in evidence that he occasionally worked some public holidays. He provided no details of the public holidays on which he claims a payment.

As per PMc Painting Contractors Ltd, as the complainant has not particularised his claim, I find the complaint under section 21 of the Act not well founded.

CA-00064205-004 Complaint on breaks

Section 12 sets out the entitlement to rest and intervals at work.

12. (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).

There is conflicting evidence on whether the complainant was afforded breaks. The respondent presented evidence that breaks were signed for up until the last few weeks of employment.

Although there is a conflict of evidence, I prefer the respondent’s testimony which was supported by witness testimony. The documents presented at least on their face confirm that breaks were granted as per section 12 of the Act.

I find the complaint not well founded.

CA-00064205-005 Terms of Employment Complaint

Section 3-(1) of the Act provides that an employer should provide a statement in writing of certain particulars of employment. There is a conflict in evidence as to whether a contract of employment was given to the complainant. Although the complainant denies he signed the contract, section 3 (A) provides that the obligation on the employer is to furnish the statement in writing signed and dated by the employer.

Although there is a conflict in evidence, I prefer the evidence of the employer which was supported by witness testimony that a contract was issued. Whether the employee signed the contract is irrelevant under the Act.

For the reasons outlined, I find the complaint not well founded.

CA-00064205-006 Payment of Wages Complaint

The Adjudication decision of ADJ-00050909 found the complainant resigned from his employment and was not dismissed. The complainant confirmed that this decision was not appealed.  It follows that the issue of entitlement to a minimum notice period does not arise in circumstances of a resignation. I decide that wages were not properly payable for the week after 24th February 2024.

I find that the Payment of Wages Act was not contravened.

Organisation of Working Time Act

CA-00064205-001- Annual Leave-

I decide this complaint is not well founded.

CA-00064205-002-Public Holidays-

I decide this complaint is not well founded.

CA-00064205-004- Rest Breaks-

I decide this complaint is not well founded.

Terms of Employment Information Act

CA-00064205-005- Employment Contract-

I decide the complaint is not well founded.

Payment of Wages Act

CA-00064205-006- Pay in lieu of Notice-

 I decide that the Payment of Wages Act was not contravened.

Organisation of Working Time Act, Terms of Employment, Payment of Wages