ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051503
Parties:
| Complainant | Respondent |
Parties | Vedran Ajdin | Portway Trailers Limited |
Representatives |
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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-00063128-005 | 28/04/2024 |
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-00063128-006 | 28/04/2024 |
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-00063128-007 | 28/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063128-008 | 28/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063128-009 | 28/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00063128-010 | 28/04/2024 |
Date of Adjudication Hearing: 11/07/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
The matter was heard by way of remote hearings on 11 July 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Background:
The complainant commenced employment with the respondent as a driver on 27 March 2024. He was paid an hourly rate of €16.00 per hour. His employment ended on 3 May 2024. A complaint form was received by the WRC on 28 April 2024. |
CA-00063128-005 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The complainant gave evidence on affirmation at the hearing. The complainant stated that he was never given a contract, although he had requested that he be given one several times. |
Summary of Respondent’s Case:
The respondent accepted that he had never given the complainant a contract of employment. |
Findings and Conclusions:
Section 3 of the 1994 Act states: Written statement of terms of employment. 3.—(1) An employer shall, not later than one month 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, I prefer the evidence of the Complainant in this matter. I do not accept the authenticity of the contract provided by the Respondent. I find the Complainant was not provided with a contract of employment. Section 7(2) of the 1994 Act states: (2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) either— (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer, (c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, (d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977. (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act,1977.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I order the respondent to pay the complainant €1,500. |
CA-00063128-006 Complaint 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.
Summary of Complainant’s Case:
The complainant submits that he was not notified of the working hours regulations applying to the road transport sector. |
Summary of Respondent’s Case:
The respondent stated that he had not informed the complainant of the working hours regulations. |
Findings and Conclusions:
Section 11 of S.I. No.36/2012, states: “Obligation to notify mobile worker 11. An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement.” An employer is obliged to formally advise each mobile worker of the key provisions of the Directive and any collective agreements that apply to the worker (if relevant). In this instant case I find the respondent breached the Regulations. Section 18 of S.I. No.36/2012, states: “18. (1) A mobile worker (or, in the case of a mobile worker who has not reached the age of 18 years, the mobile worker’s parent or guardian with his or her consent) or, with the consent of the mobile worker, a trade union of which the mobile worker is a member may present a complaint to a rights commissioner that the mobile worker’s employer has contravened Regulation 5, 8, 10, 11 or 12 in relation to the mobile worker. (2) Where a complaint is presented under subparagraph (1) the rights commissioner shall— (a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, (b) give a decision in writing in relation to it, and (c) communicate the decision to the parties concerned. (3) A decision of a rights commissioner under paragraph (2) shall do one or more of the following: (a) declare that the complaint was or was not well founded; (b) require the employer to comply with the provisions of these Regulations that have been contravened; (c) require the employer to pay the mobile worker compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 104 weeks’ remuneration in respect of the mobile worker’s employment (calculated in accordance with requirements under section 17 of the Unfair Dismissals Act 1977 );” |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Decision The complaint is well founded. I require the respondent to comply with Section 11 of the Regulations. I require the respondent to pay the complainant compensation of €250. |
CA-00063128-007 Complaint 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.
Summary of Complainant’s Case:
The complainant submits that his employer did not provide records when required. The complainant stated in evidence at the hearing that he was not informed of his working hours or that he was entitled to breaks. The complainant stated that he is a trained driver and he was familiar with the hours required. He did ask for his records but they were never provided.
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Summary of Respondent’s Case:
The respondent submitted that the complainant was a trained driver. All the company vehicles are fitted with tachographs, of which the complainant was familiar; he should have been able work out from the tachograph records when he should take his breaks. The respondent stated that the complainant never asked him to provide records to him, “at no stage was I asked to provide records of what he did.” |
Findings and Conclusions:
Section 12 of S.I. No.36/2012, states; “12. An employer shall do each of the following in relation to each mobile worker employed by him or her: (f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;” There is a conflict of evidence here. I prefer the evidence of the respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
CA-00063128-008 Complaint under the Terms of Employment (Information) Act,1994.
Summary of Complainant’s Case:
The complainant submits that he did not receive a statement of his core terms in writing. |
Summary of Respondent’s Case:
The respondent accepts he did not issue the complainant with a statement of his core terms in writing. |
Findings and Conclusions:
I find the respondent breached the Act. I believe a payment of €100 is merited. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded and I order the respondent to pay the complainant €100. |
CA-00063128-009 Complaint under the Terms of Employment (Information) Act,1994.
Summary of Complainant’s Case:
The complainant submits that he was not provided with a reasoned reply to his request for employment with more predictable and secure working conditions within one month of his request. At the hearing the complainant stated that he had requested safety gear from the respondent. He was promised it would be provided but it never was. |
Summary of Respondent’s Case:
The respondent stated that the complainant was provided with all the gear he needed to do his job. |
Findings and Conclusions:
I find the complainant did not make out a proper case for aa complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
CA-00063128-0010 Complaint under the Terms of Employment (Information) Act,1994.
Summary of Complainant’s Case:
The complainant submits that the respondent applied a period of probation to his contract of employment in contravention of the Act. The complainant stated that he actually commenced working with the respondent on 27 March 2024, but the respondent has recorded him as starting on 8 April 2024. He stated that he was fired for looking for information he had a right to get. |
Summary of Respondent’s Case:
The respondent denied the complainant had been dismissed, rather he left of his own accord as he was not happy with his rate of pay. |
Findings and Conclusions:
I find no merit in this complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
Dated: 16-09-2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Contract of employment, terms and conditions of employment. |