ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044865

Parties:

	Complainant	Respondent
Parties	Dumitru Ursuleac	Ecohouse Developments Limited

Representatives

Marius Marosan

Kiwana Ennis BL instructed by Ian Bell of Capital Law Partners LLP

Complaint(s):

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-00055552-001	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00055552-002	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055552-003	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00055552-004	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00055552-005	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055552-006	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055552-007	14/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00055552-008	14/03/2023

Date of Adjudication Hearing: 07/02/2024

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following 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.

After the hearing the Complainant’s representative made submissions alleging that the Respondent’s documentation, specifically the contract provided by them, was created at a much later date than shown on the contract. The Complainant’s representative submitted that this could be demonstrated by way of an IT report. Disputes as to the fidelity of evidence should have been dealt with in the course of the hearing not by way of post hearing submissions. In the circumstances I did not consider this submission.

Background:

The Complainant worked for the Respondent as a driver.

The Respondent’s position is that he was hired in May 2022 and at the time his employment ended he had less than 12 months service. The Complainant disputed this.

The Complainant alleges that he was accused of theft dismissed on the spot. The Respondent alleges that the Complainant walked off the job after being questioned about a small amount of money missing from a truck.

Summary of Complainant’s Case:

The Complainant attend the hearing and Mr Marosan made detailed written and oral submissions on his behalf.

The Complainant submits that he was dismissed on the 27th of February 2023 and had joined the Respondent 53 weeks before he was let go. He worked excessive hours and a deduction was made from one of his payslips. He was underpaid for public holidays.

The Complainant provided evidence under oath with the assistance of an interpreter. Where relevant I have referred to his evidence in the findings and conclusions section of this decision. His son, Dimitri Ursuleac Jr, also provided evidence under oath, mostly concerning what the alleged date of dismissal was. Ultimately that evidence wasn’t relevant to my final decision and is not detailed in this decision.

Summary of Respondent’s Case:

The Respondent attend the hearing and Ms Ennis made detailed written and oral submissions on their behalf.

They submit that the Complainant resigned on the 24th of February 2023. There were no deductions from any of his payslips and his working hours and other entitlements were monitored and the relevant laws were adhered to. His complaints are general in nature and are not specific enough for the Respondent to advance a defence to them.

Their MD Mr Vygaudas Dambrauskas provided evidence under affirmation. Where relevant I have referred to his evidence in the findings and conclusions section of this decision.

Findings and Conclusions:

The Complainant’s failure to make out a stateable case under certain complaints.

The Complainant was brought into evidence by his representative and cross examined by Ms Ennis.

He could not remember when started working for the Respondent. He believes it was towards the end of the year though his complaint form alleges it was the 21st of February 2022. It is not clear where this date came from.

He could not identify any specific period when he worked excessive hours. He could not identify which public holidays he alleges he was underpaid for. He could not identify any deductions to his salary which were supposedly in contravention of the payment of wages act.

The Respondent rightly highlights the position adopted by the Labour Court in ISS Ireland Ltd v. Gfencheva DWT1157 in analysing the burden of proof under the 1997 Act.

“This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet”

The Respondent also noted that in circumstances where there is a dispute where there is a dispute as to whether Complainant is enjoys the protections of the Unfair Dismissals Act, the burden on the Complainant to establish that he has sufficient service.

I agree with the Respondent on these points and in the circumstances and the following complaints cannot not be upheld:

CA-00055552-003 and CA-00055552-004 under the Organisation of Working Time Act 1997

CA-00055552-005 under the Unfair Dismissals Act 1977

CA-00055552-007 under the Payment of Wages Act, 1991

CA-00055552-008 under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

Terms of Employment Information Act

Section 3 of the Terms of Employment Information Act clearly placed the responsibility on the Respondent to provide a written statement of particulars to the Complainant.

The Respondent has submitted a contract which appears to have been generated in May 2022. It is unsigned by the Complainant. There is a dispute in the evidence in that Mr Dambrauskas says that he did give it to the Complainant and the Complainant says he did not receive it.

I found both parties evidence to be quite general and unspecific on this issue. I find it surprising that the Respondent did not seek and retain a copy of the contract signed by the Complainant.

In the circumstances the Respondent has not established that the Complainant was given a statement of particulars, and the claim succeeds.

There are two complaints under the Terms of Employment (Information) act. Once concerning core terms (CA-00055552-002) and once concerning a wider contract of employment (CA-00055552-001).

I have jurisdiction to provide redress of up to four weeks pay which is €2750. In the circumstances I believe that such a payment is warranted. Though both complaints are well founded I decline to make an award under both as I believe that would be disproportionate.

Payment of Wages Act (Notice)

Both the Complainant and the Respondent’s MD Mr Dambrauskas provided evidence regarding the end of his employment.

The Respondent’s business involves delivering log cabins. Drivers would not only deliver cabins but would collect payment and were required to carry a lot of cash.

Mr Dambrauskas’s evidence was that the Respondent had been told that coins totalling about €20 were missing from a van. This was notified to them in late January 2023. They later reviewed the cctv footage for the day. The van was parked up all day and the only person seen leaving or entering the van was the Complainant. The matter was not a high priority for the Respondent and they generally trusted the Complainant who handles much larger sums. Mr Dambrauskas and another colleague met with him on the 24th of February and put the situation to him. His evidence was that the Complainant became agitated and stormed out. He never returned.

The Complainant’s evidence was that he never resigned and was dismissed. Under cross examination he outlined that he had sat in the stairwell of a van and smoked while on a break and talking to a colleague and as such appeared on the cctv. He entirely denies taking anything. He did not follow up with the Respondent after his dismissal except when his representative wrote to them and filed these complaints a couple of weeks later.

The entitlement to notice pay could only arise if the Complainant was dismissed. The burden is on the Complainant to establish he was dismissed. I am not satisfied he has done so. In particular I found that Mr Dambrauskas’s evidence of the actual encounter was much more detailed than the Complainant’s.

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.

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-00055552-001

I find that the complaint is well founded.

CA-00055552-002

I find that the complaint well founded I direct the Respondent to pay the Complainant €2750 in compensation.

CA-00055552-003