ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00053791

Parties:

	Complainant	Respondent
Parties	Gerard Fell	E & L Credit Ltd

	Complainant	Respondent
Anonymised Parties

Representatives

David O’Riordan Sherwin O'Riordan

Complaints:

Act	Complaint/Dispute 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-00065715-001	27/08/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065715-002	27/08/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00065715-003	27/08/2024

Date of Adjudication Hearing: 16/12/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaints herein. I have additionally and where appropriate, heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.

This Terms of Employment (Information) Act, 1994 implements an EU Directive and applies to all persons working under a Contract of Employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said Statement of Terms.

The complaint was made on the 27th of August 2024. and I can consider such contravention of the Act which is alleged to have occurred within the six-month period prior to that date. The Complainant was in employment up to the 31st of July 2024. The complaint has therefore been brought within the appropriate timeframe and I have the jurisdiction to her the complaint.

The contravention first accrues the day after the expiration of the two-month period for the provision of the Statement and every day thereafter. In the event of termination of the employment the right to bring such a claim will die six months after the end of the employment.

In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.

In addition, to the foregoing the Complainant has made two further claims which relate to contraventions of the Organisation of Working Time Act 1997 and in particular to a contravention under Section 11 and Section 13 of the Act as follows ;

Daily rest period.

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

Weekly rest periods.

13.—(1) In this section “daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—
- (a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and
- (b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.
(5) Save as may be otherwise provided in the employee’s contract of employment—
- (a) the rest period granted to an employee under subsection (2), or
- (b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

(i) Declare the complaint was or was not well founded;
(ii) Require the Employer to comply with the relevant provision;
(iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statements or evidence is an offence.

It should also be noted that the Complainant and Respondent witnesses were both agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 5th of April 2023.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. There was no further, or other evidence provided in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant made many allegations in the course of his evidence. I was restricted to considering the evidence as it related to the three complaints in front of the commission as contained int the workplace relations complaint form.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The Respondent provided me with a written submissions dated 13th of December 2024. I have additionally heard from a witness for the Respondent. All evidence was heard following an Affirmation.

The Respondent rejects that there has been any contravention of Employment Rights as protected by statute save insofar as the Respondent does agree that the Complainant was never provided with a Contract of Employment.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

The Respondent is a licensed high cost credit provider as defined in the Consumer Credit Act, 1995 (as amended) (CCA). The Complainant was employed as a General Operative though his job appeared to entail doing door to door collections and repayments from clients who owed money to the Respondent Company. I accept that Complainant’s evidence that his role was seemingly more akin to that of a Security Guard.

The Complainant had been employed with the Respondent since 2015. The complainant appeared to be deeply unhappy in this workplace and talked of the toll that this role had on his health. He further indicated that his Employer was deeply unsympathetic and that there was an expectation that the Complainant would work longer hours than the 6.5 days he was contracted to work for each of the three days of the week that he was working.

A key issue is the lack of a Contract of Employment. None was ever provided to the Complainant. There is therefore no guideline on what hours were to be worked and what arrangements there were if the Complainant worked longer hours than he was Contracted to. The Complainant gave extensive evidence on regularly being asked to work hours over and above the 6 to 6.5 hours he understood he was being paid for. However, no evidence was provided concerning rest periods as set out in the Acts.

I find it hard to believe that the complainant worked for years and years at a set rate of pay – circa €228.00 (based on an 18 hour week) – but was in fact working many more hours for free. This matter would surely have arisen well before July of 2023 if it was true.

The Respondent witness denied that the Complainant worked over and above the 18 hours per week. He was however vague and to my mind and no good reason was offered as to why the Complainant in nine years was never given a Contract of Employment.

On balance I am not satisfied that the Complainant has made out his case with either of the complaints made concerning contraventions of the Organisation of Working Time Act 1997.

The Complainant must succeed in respect of his complainant under the Terms of Employment (Information) Act, 1994

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.

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

CA-00065715-001 – This complaint is not well founded and fails.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 – This complaint is not well founded and fails.

CA-00065715-002

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

CA-00065715-003 – This complaint is well founded and I award the Complainant the sum of €912.00 compensation which I find to be just and equitable in the circumstances.

Dated: 18-02-25

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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