Complainant

Respondent

Parties

Robert  Aylward

Archicon Ltd.

Representatives

  Robert Aylward

Shannon & O'Connor Solicitors /Kiwana Ennis BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00061617-003

16/02/2024

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

CA-00061617-004

16/02/2024

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

CA-00061617-005

16/02/2024

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

CA-00061617-006

16/02/2024

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

CA-00061617-008

16/02/2024

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

CA-00061617-009

16/02/2024

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-00061617-010

16/02/2024

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

CA-00061617-011

16/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00061617-012

16/02/2024

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

CA-00061617-013

16/02/2024

The Complainant is certified sick from the 31st of August 2023 until his employment ends on the 16th of February 2024. This is also the date that his complaint form is lodged with the Workplace Relations Commission. The Complainant alleges he was constructively dismissed and the Respondent stated that the Complainant resigned.

His most serious complaint among numerous complaints is his employment was ended arising from a breach of contract terms and the unreasonable conduct of his employer in requiring him to work excessive hours without notice.

The Employer stated that the first they became aware of the complaints was in January 2024 when they received a solicitor’s letter detailing breaches about payment entitlements and expenses. The Employer stated that soon after receiving that letter in detail it addressed the grievances brought to their attention.

The Complainant has stated that on or about February 2016 he agreed with the owner of the Company a daily rate of pay of €140 and a daily payment of €40 for the use of his van and tools. He stated that this agreement was breached, and he never received the €40 daily payment for his van and the use of his tools.

He stated that his daily rate of pay was increased in 2018 from €100 to €140 and again in March 2023 to €180. This payment was a net payment after statutory deductions.

The Employer relies on a contemporaneous note in a diary entry of 23rd January 2016 detailing a net daily payment of €140 and the employee would provide their own van and tools. All claims made by the Complainant were paid. The arrangement operated on trust.

Initially the Complainant just used his van to get to and from work and nothing else. But after a while his manager was telling him to pick up materials and then travel from one place to another and also to go to jobs which were sometimes in other parts of the country such as Galway, Belfast, Kilkenny etc. Because of all this driving there was around 40,000 Kms extra on the clock of his van every year. Less than 1/4 of this was for his personal use.

The Respondent failed to pay the right daily rate of €180 net effective from the 20th of March 2023.

The Respondent failed to pay holiday and public holiday entitlement for 2023.

The Respondent never provided the Complainant with a contract of employment and failed to notify him of changes to his contract.

The Complainant alleged that he worked more hours than allowed for under the Organisation Working Time Act 1997.

The Complainant stated that he was not notified of his starting and finishing times.

The Complainant stated that he was not notified in time of the requirement to work additional hours.

The Complainant had to leave his job arising from a serious of contractual breaches and arising from the conduct of his employer.

 He stated that he never received a contract of employment from Archicon Ltd but usually the working day was from 8am to 5pm (with 2 breaks for lunch 1 hour combined).  However, he would often have to start earlier than this or work later and also work Saturdays. He stated that he was never given any notice of this. The Complainant stated that he was never asked if he was available or if he wanted to work overtime hours or if he needed to do anything in his personal life. He stated that this work schedule was arranged usually by Mr O'Connor and that he was told that he "had to" and that he had "no choice". Sometimes his manager didn’t tell him directly and he would be told by a work colleague or client. This was not an exceptional situation but was commonplace during his employment.

The Complainant stated that he was employed as a PAYE worker the same as all his other colleagues and he was not a contractor. The company owns 3 Ford Transit Custom vans and a Toyota Land Cruiser. Mr O' Connor uses one himself and the other 2 vans and the jeep are used by his work colleagues. He also provided them with tools. However, Mr. O'Connor treated the Claimant’s van as if it was also a company van and he had to pay road tax, insurance, maintenance, tyres, CVRT test, tolls and also pay for Diesel and AdBlue. In January 2020, he told the owner that this was not fair and that he was being treated differently to everyone else and that he was taking advantage of him and that the job was not worth his while financially.

The owner then agreed to pay him EURO40/day for use of his van, tools, phone etc. He also agreed to pay a portion of his Diesel expenses even though all his other colleagues had a fuel card and he paid for ALL their expenses. All the company vehicles had a toll tag installed on the window, but the Complainant had to pay the tolls himself. The Respondent did pay him the agreed portion of his Diesel expenses which was dependent on how much driving he had to do in a week. He paid for tolls for long trips only, such as regular trips to Galway. However, he never paid him the EURO40/day for use of his van, tools, phone etc. Nobody else in the company was treated like this and the Complainant has many friends working for different companies and none of them were treated like this. Whenever he brought up the subject the owner tried to change the subject, or someone would phone or there would always be some excuse. The owner never said that he wasn't going to pay it, but he never did pay him.

The Complainant brings a claim for Constructive Dismissal which is denied along with related claims.

The Company provides facilities services to clients such as building repairs and related services. It is a small company and employs 3 workers.

The Complainant started with the Company as a contractor. However, in January 2016 he was employed.

This dispute centres around what was agreed between the parties. There is no written contract. There is a contemporaneous note made by the owner which states the start date, the working days, daily rates of pay and a term that he would use his own van and tools. This was opened and sworn to be a true and accurate record of the terms that was agreed between the parties. This account is denied by the Complainant.

The Company stated that the Complainant enjoyed a high degree of autonomy around his working hours. His standard working hours were 8am to 5pm with 1-hour unpaid lunch break and two paid 15-minute breaks.

Until March 2023 his daily rate of pay was €140 net. He uniquely received 1.5 times when he worked overtime

His daily rate of pay increased to €180 net on the 20th of March 2023. In other words, this was a guaranteed net payment after statutory deductions. In addition, the Complaint received all costs associated with using his van and other expense such as his phone.

Each month the Complainant would submit a claim for wages and expenses. These were always paid.

The Complainant requested to be paid his annual leave entitlement and his public holiday entitlement at the end of the year.

A WhatsApp group existed to deal with any pay or hours issues.

On or about the end of August 2023 the Complainant submitted a sick certificate which stated that he was unfit for work for the month of September 2023. This was followed by a second sick certificate for the month of October. At this point he was moved from the WhatsApp group as it is used to respond to Call Outs and pay processing. This removal was viewed by the Complainant as a hostile action. Another cert was provided for November 2023 and a final cert was provided for the period the 23rd of November to the 21st of February 2024.

The Complainant has asked for his annual leave entitlements to accrue and to assist him; to be paid at the end of the year. As the Complainant was on certified absence, no payment was made for annual leave/public holiday entitlement.

Based on payroll queries in early 2024 payments were processed; however, the payroll service provider in error did not include a higher rate of pay that had been agreed between the parties earlier in the year. The provider was also unaware of the overtime rate that applied to the Complainant. The Company operates a WhatsApp group to manage call outs, payroll processing, expense claims and the Complainant would normally have submitted such claims using the WhatsApp group. In turn those claims would be approved by the Director and owner of the Company. However, as he was on extended leave, he was taken off the WhatsApp group, as that was used for call out requests and the Company didn’t want to be disturbing him with unnecessary work-related requests such as a call out. That meant the payroll requests processed in January were not detailed as they normally would be if he was working and approved by his manager. This led to some errors being made by the payroll administrator.

On or about the 10th of January 2023 a Solicitor wrote to the Company on behalf of the Complainant and stated that:

·       Holiday pay was owing for 2023

·       Overtime was owing amounting to €300

·       No written contract was given to his client

·       He had not received €40 in expenses

·       He had not received break entitlements

·       He had been effectively dismissed when removed from the WhatsApp ground when he went out sick

On the 16th of January 2024 the Company replied to this letter. This letter stated that at no time had any of the issues detailed in the Solicitor’s letter been raised with the Respondent by the employee. All payments owed to the Complainant would be paid. The company had increased the daily rate by €40 and this was paid there no entitlement to €40 in expenses.

On or about the 16th of January 2024 the Complainant was requested to indicate a return date to work. There was no reply to this request and on the 16th of February 2024 a complaint is lodged with the WRC.

The Complainant has lodged ten claims against the Respondent. The relevant cognisable period is from 17th August 2023 to 16th February 2024 the date the complaints were lodged with the Commission.

CA-00061617-003 Payment of Wages:

This concerns a claim for alleged underpayment of holiday pay in the amount of €625.81. On the sworn evidence of the Respondent’s Accountant and documentation opened; I am satisfied that all monies owed have been paid to the Complainant. The failure to pay was an omission and once informed of the practice where holidays had been paid at the end of the year the payment was processed. This arose because the Complainant was sick and absent from work.

CA-00061617-04 Organisation Working Time:

The Complainant alleges that he worked in excess of the maximum weekly hours. Section 15 of the Act states:

Weekly working hours.

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

On the facts no breach of the maximum weekly hours has occurred over the relevant reference period.

CA-00061617-05 Organisation Working Time:

The Complainant alleges that he was not notified in advance of his start and finish times. The Respondent stated that the Complainant had a set start time of 8am and a finish time of 5pm.

Section 17 of the Act states:

Provision of information in relation to working time.

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, F14[that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.]

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.

There was a set starting and finishing time that was verbally communicated. There is no written contract. A technical breach therefore has occurred.

CA-00061617-06 Organisation Working Time:

The Complainant alleges that he was never notified in advance of additional hours. The nature of the work meant that it was the Complainant who would decide if overtime hours were required. There was a requirement to meet a client’s requirement to fix a problem and that was a practical on-site evaluation. That is the nature of facilities management and call out work. If there was a breach it was a technical breach.

CA-00061617-08 Terms of Employment (Information) Act:

The Respondent concedes that the Complainant received no written contract of employment detailing terms of employment.

CA-00061617-09 Terms of Employment (Information) Act:

The Respondent concedes that it implemented agreed improvements in terms of employment without detailing those terms in writing and sending them to the Complainant.

CA-00061617-11 Terms of Employment (Information) Act:

This complaint is conceded.

CA-00061617-10 Reg 18 European Communities (Road Transport) Regulations 2012-S.I. No. 36/2012:

The Complainant was not a mobile worker and his employment with the Respondent was not covered by the 2012 Regulations. This complaint is misconceived.

CA-00061617-12 Sick Leave Act 2022:

This claim concerns an allegation the Complainant was penalised for having exercised his rights under the 2022 Act. The Complainant was paid all sick days claimed by him. It is denied that the Complainant was penalised. No evidence has been presented at the hearing that would support this allegation.

CA-00061617-13 Unfair Dismissal:

The Complainant alleges that the was constructively dismissed.

That allegation was initially based on an alleged breach of a term where he would receive an additional €40 for the use of his van and tools. It was then expanded to include an allegation that he was exploited relating to traveling to sites, forced to work unsocial hours and treated less favourably to other work colleagues.

In a constructive dismissal an employee carries the burden of proof. All the allegations are denied.

The Owner stated that prior to the Complainant going sick, the relationship was friendly. All grievances raised by the Complainant have been addressed. There is no outstanding monies owed. The reasons for some underpayments were entirely administrative with no animus attached to the omissions. The errors in turn must be viewed in context and that the Complainant is out sick when they occurred.

The Respondent referred to Paris Bakery & Pastry Ltd v. Mrzljak [DWT 1468] where the Labour Court explained the definition of constructive dismissal in the following terms:

 “Where an employer commits a repudiatory breach of contract, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be breach of an essential term which goes to the root of the contract. Paragraph (c) of the definition [in the Unfair Dismissals Acts] deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.”

The Complainant first put the Respondent on notice of any issues he had concerning his employment by way of his solicitors’ letter of 10th January 2024. In response, each of the issues raised by the Complainant was addressed and further payments were made to the Complainant. As noted above, the issues regarding the shortfalls in the Complainant’s pay occurred because his annual payment claim in December 2023 for annual leave and public holidays was not submitted in the usual way as he was out sick.

 The Complainant was informed both in person by Mr. O’Connor on 13th January 2024 and by letter of 16th January 2024 that his employment had not been terminated. This was communicated to him in unequivocal terms. In response however, the Complainant submitted his complaint form to the WRC on 16th February 2024.

The Complainant’s allegations regarding not being paid expenses and/or having to work in excess of the weekly maximum permitted have not been proven.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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, or

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

There are two questions to ask:

·       Was the conduct of the employer so unreasonable that destroyed the relationship of trust and confidence between the company and the employee?

·       Did the company breach a fundamental contract of his employment?

The parties entered into an agreement that the Complainant would use his van and what compensation he would receive including the use of his van. Those terms were amended by agreement.

On the evidence the Complainant felt badly treated overtime when compared to work colleagues who had a company van and fuel card. However, there is no obligation on an employer to provide the same terms and conditions to every employee. The background to this contract was first a contract for service and that in turn became an employment contract. That led to a negotiation. The parties agreed terms. This company is very small and how the terms were agreed is quiet typical of a very small business reaching an agreement with a new employee.

There is no evidence of bad conduct by the employer or of a breach of the agreement that both parties agreed to.

The employee has pursued many complaints; however, other than not receiving a written contract, they have no merit.

What is more likely to have occurred is a comparison to what other employees had and that the contract struck with the owner was viewed as one sided and unfair. However, that was a perception and was very late being expressed as a grievance.  The terms at face value don’t appear unreasonable and the allegations of working excessive hours don’t stand up.

The employee carries the onus of proof where dismissal is in dispute. As that burden has not been met I find that the Complainant was not unfairly dismissed. The Employer did not repudiate the contract and it ended by reason of the employee resigning.

CA-00061617-003 Payment of Wages:

This concerns a claim for alleged underpayment of holiday pay in the amount of €625.81. On the sworn evidence of the Respondent’s Accountant and documentation opened; I am satisfied that all monies owed have been paid to the Complainant. The failure to pay was an omission and once informed of the practice where holidays had been paid at the end of the year the payment was processed. This arose because the Complainant was sick and absent from work.

The complaint is not well founded as all wages outstanding have been paid.

CA-00061617-04 Organisation Working Time:

The Complainant alleges that he worked more than the maximum weekly hours. The Respondent has detailed the working hours in the relevant period and no breach has occurred.

The complaint is not well founded.

CA-00061617-05 Organisation Working Time:

The Complainant alleges that he was not notified in advance of his start and finish times. The Respondent stated that the Complainant had a set start time of 8am and a finish time of 5pm.

The complaint while well founded is a technical breach and I decide to award no compensation as the starting and finishing times were fixed.

CA-00061617-06 Organisation Working Time:

The Complainant alleges that he was never notified in advance of additional hours. The nature of the work meant that it was the Complainant who would decide if overtime hours were required. There was a requirement to meet a client’s requirement to fix a problem and that was a practical on-site evaluation. That is the nature of facilities management and call out work. If there was a breach it was a technical breach.

The complaint while well founded is a technical breach and I decide to award no compensation as the Complainant determined what additional hours to work and he was paid a premium for those hours worked.

CA-00061617-08 Terms of Employment (Information) Act:

The Respondent concedes that the Complainant received no written contract of employment detailing terms of employment.

And the following are also conceded:

CA-00061617-09 Terms of Employment (Information) Act:

The Respondent concedes that it implemented agreed improvements in terms of employment without detailing those terms in writing and sending them to the Complainant.

CA-00061617-11 Terms of Employment (Information) Act:

This complaint is conceded.

Section 7of the Act states:

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.

I award € 1800 nett being the equivalent of 2 weeks nett for all breaches as claimed under the Terms of Employment (Information) Act.

CA-00061617-10 Reg 18 European Communities (Road Transport) Regulations 2012-S.I. No. 36/2012:

The Complainant was not a mobile worker and his employment with the Respondent was not covered by the 2012 Regulations. This complaint is misconceived.

CA-00061617-12 Sick Leave Act 2022:

This claim concerns an allegation the Complainant was penalised for having exercised his rights under the 2022 Act. The Complainant was paid all sick days claimed by him. It is denied that the Complainant was penalised. No evidence has been presented at the hearing that would support this allegation.

The Complaint is not well founded.

CA-00061617-13 Unfair Dismissal:

The Complainant alleges that he was constructively dismissed.

There is no evidence of unreasonable conduct by the employer or of a breach of the agreement that both parties agreed to, that would give rise to a repudiation of the contract by the Employer.

The employee has pursued many complaints; however, other than not receiving a written contract, they have no merit.

What is more likely to have occurred is a comparison to what other employees had and that the contract struck with the owner was then viewed as one sided by him. However, that belief does not give rise to a legal breach. The terms at face value don’t appear unreasonable and the allegations of working excessive hours have been rebutted.

The employee carries the onus of proof where dismissal is in dispute. As that burden has not been met, I find that the Complainant was not unfairly dismissed and it ended by reason of the employee resigning.

Constructive Dismissal