Complainant

Respondent

Parties

Jason  Keyes

Garry Ryan Transport

Representatives

  Self-represented

Glenn Cooper, Dundon Callanan LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00062321-001

21/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00062321-003

21/03/2024

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

CA-00062321-004

WITHDRAWN

21/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00062322-001

21/03/2024

The Complainant commenced his employment with the Respondent on 1 November 2018. His employment was terminated on 29 January 2024.

On 21 March 2024, the Complainant referred the above claims to the Director General of the WRC.

An adjudication hearing for the purpose of investigation of the Complainant’s claims was scheduled for 26 June 2024. Correspondence informing the parties of the arrangements for the hearing issued on 31 May 2024. There was no attendance by, or on behalf of, the Respondent at the hearing. There has been no communication from the Respondent indicating any difficulties with attending the hearing or requesting a postponement. The Complainant attended the hearing.

On 26 June 2024, the Complainant emailed the WRC at 3.48pm informing that he ‘bumped into’ Ms. Ryan of the Respondent on his way home from the hearing and she informed him that the Respondent ‘had someone working on it at the WRC in Dublin and that's why they didn't show up’.

On 27 June 2024, the WRC received an email from Ms. Ryan of the Respondent as follows:

From: G ryan transport ltd

Sent: Thursday, June 27, 2024 3:43 PM

To: WRC Post Registration Unit (PRU)

Subject: Re: CA-00062321

“Hi

im referring to the above case i have sent emails to the above email as the girl i rang had said elanie was off there seems to be a bit of confusion with these email as im getting no response and i need to discuss what happened yesterday if you can email me back please .

kind regards

Below the above text the following was included:

On Tue, Jun 11, 2024 at 4:01 PM G ryan transport ltd wrote:

HI ELAINE

I had made contact with the office last week but you were off when I rang ,I am referring to the above case.

We would like to know where we go from here. We spoke to a lady [a first name] that called our office and I think there was miscommunication as i said to her we thought she was dealing with this, but as she told us we should receive a letter from you as this would be separate .

We would rather if this didn't go to hearing if can be sorted before that, if you can let me know where we go from here ,thanks

kind regards

The WRC official replied on 1 July 2024 stating that the email of 27 June 2024 seemed to be the first email the WRC received from the Respondent. She further informed the Respondent that the WRC had issued all correspondence by post as there was no email consent on file for the Respondent and the hearing took place on 26 June 2024.  There was no record of an email that the Respondent suggested was sent to the WRC on 11 June 2024.

On 16 July 2024, the WRC received a letter by email from Dundon Callanan Solicitors confirming that they are now on record for the Respondent. The solicitor informed the WRC that the Respondent advised them that they had emailed the WRC but apparently those emails were not received, and the Respondent did not attend the hearing on 26 June 2024. The Respondent sought to reschedule the hearing so it could attend.

It appears that the WRC had not received any email correspondence from the Respondent until 27 June 2024 (post hearing). The Respondent’s solicitor subsequent communication suggests that the Respondent emailed the WRC but apparently those emails were not received, and as a result the Respondent did not attend the hearing on 26 June 2024. For the avoidance of any doubt, even if it was accepted that the Respondent did send the letter of 11 June 2024 to the WRC, there is nothing within the email to indicate any difficulties with the Respondent’s attendance at the hearing or seeking a postponement.

I am reasonably satisfied that the Respondent was on notice of the arrangements for the hearing. The Respondent did not attend the hearing.

There was no attendance by, or on behalf of, the Respondent.

The Complainant submits that on Monday 29 January 2024 he was on a pre-booked day off as he was to attend a maternity scan with his partner. The Complainant submits that his boss, Mr Gary Ryan would normally drop the Complainant’s van or make arrangement for it to be dropped to the Complainant’s home the evening before his return to work. On this occasion, when the Complainant had not heard from anyone, he rang Mr Ryan. Mr Ryan did not answer and texted the Complainant to say that another member of staff had his van and to contact him about its return to the Complainant.

The Complainant submits that he did so and was informed by the staff member that he did not have the van. The Complainant informed Mr Ryan of same by text.

The Complainant submits that Mr Ryan then rang him and told him to make his way to Limerick at 7pm to collect the Complainant’s van. The Complainant informed Mr Ryan that it was impossible for him to do so at that hour on a school night and with no babysitter or transport, and that it was never asked of him before.

The Complainant submits that Mr Ryan’s reaction was to tell the Complainant to “f… off” and find another job. The Complainant submits that he hung up as Mr Ryan, in his opinion, sounded drunk and in the pub. After hanging up, the Complainant received two texts saying that he was not needed at work on Tuesday and that the Respondent had no van available for him anymore. The Complainant submits that he replied simply “grand” thinking that he would take it up with Mr Ryan in the morning.

The Complainant submits that at 9.40pm he received another text message saying that the only contact to be made now was through solicitors. The Complainant texted back asking if he was fired. The Complainant submits that the message was received and read but he still hasn’t received a reply. The Complainant submits that he sent a message and rang Ms. Ryan asking for an explanation or his job back but he got no reply. He then rang his colleague and a long-time friend of Mr Ryan, who trained him in on the job. He told the Complainant to ring Ms. Ryan and that she would sort it out but when the Complainant told him that he already had and she hadn’t answered or returned his call, he said he was shocked and that he thought the Complainant was there for the long haul.

The Complainant rang the WRC the next morning for advice. Before he submitted his complaint, he sent a message to Mr Ryan saying that he was confused as to what his employment situation was and that he was available as always and unaware of to what all this was about.

The Complainant submits that he received no information then or since as to why he was dismissed. He waited until Thursday evening to see if he was going to be paid. The Complainant submits that he was not paid on Thursday. The Complainant submits that, together with his partner, he was responsible for five children and leaving him without explanation and money in this way was beyond stressful.  

The Complainant submits that he emailed Ms. Ryan and she told him that there was no P45 anymore and that he would be paid his holidays. The Complainant was not given any explanation since . This has left a cloud of suspicion over him as a person. The Complainant has worked since he left school at 17 and had never had any disciplinary proceedings, verbal or written warnings.

The Complainant submits that he sent a text message to Mr Ryan asking for his belongings out of the van and he said to call him and that he would meet the Complainant. He acted like nothing had happened  until the Complainant mentioned the WRC.

The Complainant submits that he thought that Mr Ryan forgot about his van because he went out drinking and when the Complainant reminded him by phone call, he became totally unreasonable.

The Complainant submits that he had worked very hard for the Respondent over the last 6 years, originally from 4am until 5.30pm or later until he had to take his then 2 year old daughter full time without any help from the child’s mother or family . This left him in a position that where he needed a childminder and more child friendly hours. The Complainant submits that Mr Ryan and Ms. Ryan were great and gave him hours that helped him to keep working while looking after his daughter. The Complainant submits that he will always be grateful for that.

The Complainant submits that he still has not heard from the Respondent or managed to get his all belongings back but he decided to wait until the hearing to get more information and concentrate on getting a new job. This has proved difficult for him as his job with the Respondent allowed him to collect his daughter from school.

The Complainant submits that his child was born in June 2024 and now he should be on maternity leave. At the hearing, the Complainant said that he should be on paternity or parental leave.

The Complainant submits that the Respondent is aware that he has custody of his daughter and he needed the job. The Complainant submits that he had a good relationship with the Respondent. There were no disciplinary issues whatsoever.

The Complainant’s evidence was that he was paid €500 per week net.

Loss mitigation

The Complainant outlined his personal circumstances. He is responsible for two children and requires a job that suits his circumstances. He said that he has no support locally. Prior to dismissal he could arrange his workday to pick up his daughter from school during his lunch break. The Complainant submitted that he sought a job that suits his circumstances and that would allow him to care for his daughter without having to engage a childminder.

The Complainant submits that he has driven a van for over 20 years without issue until now. This has left rumours to circulate as to why was he dismissed.

The Complainant submits that he managed with help to make a new CV and has been looking for courses and jobs in any kind of area but every job gets 100s of applications and his lack of computer skills has left him in a disadvantaged spot. He submits that finding work has been proving very difficult also due to factors such as transport etc .

Post-hearing, on 26 June 2024, the Complainant furnished evidence of his attempts to mitigate his loss which included an email exchange related to support with CV writing, an undated job alert email from Monster, and two job applications in April 2024.

The Complainant, in his email  submitted that due to his email account being full, he deleted many emails and photos. He did not realise that he would need to present these documents.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The Complainant alleges that he was unfairly dismissed by the Respondent. There was no appearance on behalf of the Respondent at the hearing as outlined above. The Respondent has not engaged with the WRC or submitted any submissions or documentation prior to the hearing.  In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Section 6 of the Act stipulates as follows:

‘Unfair dismissal

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.’

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·        That employee grievances are fairly examined and processed;

·        That details of any allegations or complaints are put to the employee concerned;

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

‘This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.’

Furthermore, in Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: ‘The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.‘

The combined effect of the above requires me to consider whether the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the dismissal.

Based on the totality of the evidence adduced, both written and oral, and the submissions made, it is clear that the Respondent did not follow any procedures before dismissing the Complainant. The Respondent seems to have dismissed the Complainant via a late-night text message. Despite numerous attempts by the Complainant to clarify his status with the Respondent, there was no engagement. The Respondent’s actions were contrary to the norms of employment relations practice which requires that the dismissal of an employee is effected in line with S.I. 146 of 2000.

In light of the above, I find that the dismissal of the Complainant was procedurally unfair.

Furthermore, it appears that the Complainant was not informed of the reasons for his dismissal. He was not informed of any alleged shortcomings on his part and he was not the subject of any investigation or disciplinary procedures.  Accordingly, I find the Complainant was unfairly dismissed.

Redress 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: ‘”financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2022, or in relation to superannuation;’

In accordance with the provisions of section 7(1) of the Act I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The Complainant sought compensation. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree with the Complainant that compensation is the appropriate redress in this case. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

The Complainant gave evidence that his weekly wage was €500. The Complainant’s evidence was that he did not secure new employment as of the date of the hearing.

Section 7(2)(c) provides that in examining the financial loss, the Adjudication Officer must have regard to the measures adopted by the employee to mitigate his loss.

I note in D. Ryan in “Redmond on Dismissal Law” (Bloomsbury Professional, 2017, 3rd edition) at:

‘[24.72]

‘The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss[i].  Sir John Donaldson explained the duty in AG Bracey Ltd v Iles[ii]:

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.’

The test to be applied is an objective one in determining if the employee acted reasonably to mitigate loss.

I find that the Complainant’s efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd UD 858/1999 that a ‘claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.’

I also note in Redmond onDismissal Law the following:

‘[24.67]

When determining compensation, the WRC must take into account all the circumstances of the case, according to the Supreme Court in Carney v Balkan Tours Ltd.[iii] Section 7(1) coupled with s 7(2)(d) allow the adjudication body to look at all the circumstances including the conduct of the parties prior to dismissal.’

The obligation to mitigate is just one factor to be considered when determining compensation and not the sole factor. On balance, I must reduce the award having regard to the failure to mitigate loss and allowing for the circumstances of this case. While the Complainant provided some evidence of his search for alternative work that has not been successful, I must have regard to an employment market that is buoyant. 

I find that the Complainant was unfairly dismissed and this complaint is well founded. I order the Respondent to pay the Complainant €7,500 which I deem to be just and equitable having regard to all the circumstances of this complaint.

The Complainant alleges that he did not receive his entitlement to maternity leave.

The Complainant submits that he feels that his asking for much of his annual leave for parenting reasons was held against him.

The Complainant submits that his baby was born some 3.5 weeks ago

There was no attendance by, or on behalf of, the Respondent.

The Law:

Section 8 of the Maternity Protection Act 1994, as amended provides as follow.

‘8. Entitlement to maternity leave

(1) Subject to this Part, a pregnant employee shall be entitled to leave, to be known (and referred to in this Act) as “maternity leave”, from her employment for a period (in this Part referred to as “the minimum period of maternity leave”) of not less than—

(a) 26 consecutive weeks, or

(b) 26 weeks part of which is postponed in accordance with sections 14B,

as may be appropriate.

(1A) Subject to this Part, a pregnant employee referred to in subsection (1) shall be entitled to a further period of maternity leave that is in addition to the minimum period of maternity leave referred to in paragraphs (a) or (b) of subsection (1), if on or after 1 October 2017 the date of confinement occurs more than 2 weeks before the expected week of confinement.’

Employees who become pregnant or have given birth are entitled to maternity leave. Section 16 of the Act,Entitlement of employed father to leave on death of mother provides that employed fathers can take maternity leave if the mother or birthing parent dies within 40 weeks of the birth.

The Complainant referred his claim on 21 March 2024 alleging that he did not receive his maternity leave. The uncontested evidence of the Complainant was that, at the time of the referral of his claim he was an expectant father and his child was born post-submission of the claim. There was nothing put forward to suggest the Complainant’s entitlement to maternity leave.

I declare this complaint to be not well founded.

The Complainant confirmed at the adjudication hearing that this claim is a duplication of the claim bearing reference number CA-00062321-001.

There was no attendance by, or on behalf of, the Respondent.

This complaint is a duplication of the claim bearing reference number CA-00062321-001 that has been dealt with above. The Complainant withdrew the claim at the adjudication hearing. It is, therefore, disposed of.

This complaint is a duplication of the claim pursuant to the Act bearing reference number CA-00062321-001 that has been dealt with above. The Complainant withdrew this complaint at the adjudication hearing. I, therefore, make no decision regarding this complaint as it has been disposed of.

The Complainant alleges that he did not receive the national minimum rate of pay.

The Complainant submits that he did not receive payslips so he was unaware of his hourly rate of pay but the hours he worked do not add up to the minimum wage.

The Complainant confirmed that he did not request a statement from the Respondent of his average hourly rate of pay.

There was no attendance by, or on behalf of, the Respondent.

Section 23 of the National Minimum Wage Act, 2000 provides:

‘23. Employee entitled to statement of average hourly rate of pay for pay reference period

(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150% calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of [Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.’

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay stipulates:

‘24. Disputes about entitlement to minimum hourly rate of pay

(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the adjudication officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,’

Section 24(2)(a) of the Act provides that a dispute cannot be referred to an Adjudication Officer under the Act unless an employee has received a statement pursuant to Section 23, or having requested such a statement the employer has failed to provide the statement within the period of four weeks.

The Complainant confirmed that he had not requested a statement of average hourly rate of pay from his employer. Therefore, I find that I have no jurisdiction to deal with the matter. In Mansion House Ltd v Izquierdo MWD 3/2004, the Labour Court held that, where a claimant had failed to request a statement in accordance with section 23(1) of the Act, the “appropriate course of action” was for the rights commissioner to decline jurisdiction without prejudice to the claimant's right to re-enter the same complaint having complied with the said subsection. It was the Labour Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with s.23(1) was neither “appropriate nor is it warranted by any provision of the Act”.

For the reasons set out above, I declare that I do not have jurisdiction to hear this complaint without prejudice to the Complainant's right to re-enter the same complaint having complied with Section 23 of the Act, subject to applicable time limits. I declare this complaint to be not well founded.

Unfair dismissal - minimum wage – maternity leave