Complainant

Respondent

Parties

Patrick  Murray

Donovan Access Limited

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent

Act

Complaint 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-00064477-001

02/07/2024

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

CA-00064477-002

02/07/2024

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

CA-00064477-003

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00064477-004

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991(withdrawn at hearing)

CA-00064477-005

02/07/2024

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

CA-00064477-006

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064477-008

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064477-009

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005(withdrawn at hearing)

CA-00064477-010

02/07/2024

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-00064477-011

02/07/2024

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-00064477-012

02/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00064477-013

02/07/2024

On 2 July 2024, the Complainant and Lay Litigant submitted 13 employment rights complaints against his former Employer, Donovan Access ltd. He was supported by an Advisory service, who did not accompany him to hearing.

The Respondent was notified of the claims on 11 July 2024 and submitted a defence of the claims made. This letter was scripted by Maggie O’ Donovan, for and on behalf of Donovan Access Ltd.

On July 26, 2024, the Respondent queried why the company was being contacted “about an incident with a former employer that occurred more than 6 months ago? “

Ms. O’Donovan indicated that she had already explained this “via his other representatives “she went on to seek clarity regarding statutory time limits.

The Company was advised to address any concerns with the Adjudicator at hearing.

On 17 September 2024, both Parties were invited to hearing on 4 November 2024. On that same day, the Respondent made an unusual submission regarding the rules surrounding progression of complaints under the Equal Status Act 2000. No complaints had been lodged under this piece of legislation. When this was clarified by the WRC, the Respondent once more referred to the statutory time limits surrounding a complaint and sent a screenshot in response.

The complainant forwarded his written submission in the case on October 11, and he forwarded a copy to the Respondent.

The Respondent did not attend the hearing in person or send a designated representative. No reason was given for nonappearance, no request for postponement was received.

The Complainant took the oath to accompany his evidence.

At the conclusion of the hearing, I requested that he produce a record of the forklift license of 2015.

I also requested PRSI records in the case.

I received an explanatory email in response, but not the record of the forklift license.

I apologise for the delay in submitting this decision, which was due to a period of unexpected sick leave.

On 2 July 2024, the Complainant introduced himself as a Forklift Driver and Storeman in Scaffolding business. He recorded an employment which ran from 12 October 2015 to 10 January 2024, as the date of his dismissal. He was one of two employees. There were many sub-contractors. He knew the owner for 30 -40 years.

He recorded a weekly working week of 22.5 hrs over 3 days in return for €270.00 gross.

The Complainant confirmed that he was satisfied to represent himself at hearing. He described receiving assistance and support to self-advocate from an Advisory service.

By way of written submission, the Complainant outlined that he had been unfairly dismissed on 10 January 2023 (later corrected). He contended that he had been discriminated on age grounds and penalised for raising a legal issue of protected disclosure regarding licencing for forklift drivers.

He described working as a Storeman and Forklift driver from 12 October 2015. He also drove company trucks and worked on scaffolding.

He had been hired with the support of community welfare office and had worked on the forklift without incident to late 2023. He had previously been self-employed.

In early December 2023, he sought a renewal of his forklift licence with his employer as the licence had expired. When the new licence was not forthcoming, the complainant stood back from his job content and was met with verbal abuse from the Respondent. The Complainant outlined being sidelined. He stated that he was troubled by Subcontractor level of dissatisfaction. This prompted him to raise the topic of the renewal of the forklift licence with the owner, who undertook to check it out and email him back. He knew he needed a licence, which had expired after 5 years.

On January 10, 2024, he had an altercation with the owner on being asked to “clear an area in the storeroom “and was summarily dismissed. The Respondent told him it was time for him to retire and offered a severance, which was not accepted. The Complainant tried to return to work but this was not supported by the Respondent.

He submitted that there were no visible signs of trading challenges, but he had not been given an increase in minimum wage in January 2024.

CA-00064477-001 Terms of Employment (Statement of Terms) The Complainant submitted that he had not received Terms and Conditions of employment.

In evidence, he stated that he thought he could recall having a copy of the forklift licence and contract from October 2015, but he had not received copies.

The Advisory service had sought discovery, but the respondent did not provide a record of a Statement of terms of employment.

CA-00064477-002 Terms of Employment (Notification of change) The Complainant submitted that he had been required to carry out duties outside of his oral contract. He had not been notified of that change.

In evidence, the complainant described his work pattern as a 3-day week of 8am to 3.30 pm or 9 am to 4.30 pm. His job typically consisted of piling scaffolding on lorries aided by the forklift.

I explained the cognisable period for this claim as 3 January 2024.

The Complainant described a decline in his working relationship three weeks before Christmas. he was unsure what prompted this. He submitted that he had not been notified of a cessation in his driving the forklift, which was delegated to others and a bonus payment of €100 .00 normally paid at close of year had not been paid.

CA-00064477-003 Claim for unfair dismissal

The Complainant stated that he had been summarily dismissed on January 10, 2024. He sought the remedy of re-instatement and by the time of the complaint had not found new work. He submitted that he had been denied fair procedures and justice in relation to the dismissal as retirement was enforced on him, without any procedural framework or appeals mechanism.

The dismissal was communicated by text.

In evidence, the Complainant a number of gripes he had with his employer which originated from October 2023. He has asked to fix the seat on the forklift, which wasn’t fixed. Later that month, there was a leak in the roof, which was not fixed until second week of November.

He contended that things changed when he was transferred off the forklift.

At the outset of the hearing, I endeavoured to explain   where the burdens of proof rested in the cases before the WRC. I explained that in this claim that the Respondent carried the burden   to prove that there were substantial grounds covering the dismissal and that the decision to dismissal fell within the “band of reasonableness “for this employment.

In evidence, the complainant recalled January 10, 2024, when Mr O’ Donovan, the business owner, confronted him by demanding if he was disobeying his orders?

The Complainant replied that he was “nearly finished “and was met with expletives from the owner, who told him to go.

When the complainant refused to go, the owner told him that his wages were being stopped from 12.30 pm. The Complainant stayed until 3.20 pm taking his safety boots with him, while retaining the keys. He refused to put the keys in the letter box.

Texts followed from a company representative, who was abroad. He felt insulted by the owner’s behaviour, which he described as bullying.

The Complainant exhibited text records which he attributed to Ms O Donovan, the company representative, received during the working day of January 10, 2024

“I am shocked at (Owner) the way he spoken to me “(Complainant)

“Will look at pay out as early retirement for you. your relationship with the company is no longer working “

“Pat, I will ask our Accountant to approve an early retirement pay out of €1000 as final payment to you for all services up to today ….” This year is 2024, the year you turn 65, retirement time now “

This was framed as an “opening offer “

“Best not to come back to yard until we finalise terms ….”

On Thursday, January 11, 2024, the Complainant indicated that he was willing to “come into work, but as you have instructed me not to, I will not come in tomorrow “

He sought payment for suspension and contended that he remained an employee.” … until I receive proper written notice of dismissal “He stated that he was taking legal advice.

He exhibited a text numbered as 18 and attributed to the same day. He paired this text with Ms O’ Donovan.

“Pat, given the lack of respect shown to the company, best not to come back. Do pass on my contact details to your representative and we can address any settlement for you …”

He approached the Advisory service for advice the next day. He confirmed that he signed on for job seekers benefit the following Thursday.

When requested to explain the delay from January 10 to 2 July 2024, when the claim was lodged, the complainant explained that he had revised his position on the claim form and no longer wished to return and was now seeking the remedy of compensation.

He did not explain the delay in submitting his claims.

He exhibited a reference to three applications for new work and signalled that he wished to become self-employed and was pursuing a new driving licence.

The complainant described the impact of his dismissal as his being “treated like a dog “and he didn’t want to risk receiving this hurt again. He gave a brief mention of waiting for a driving test and he was subsisting on €242 DSP payment.

He saw the dismissal as being unfair in the face of his reasonable request on licence renewal, which was essential for his job.

I requested that the complainant address the respondent contention that he had taken to sitting in his car for extended periods. He rejected this as an exaggeration and insisted that he only sat in his car during breaks and when waiting for repairs to be completed.

In my response to my request for details on the forklift licence, the complainant responded by email post hearing. He confirmed that he had received information from the Forklift training group which placed his forklift licence completion on 4 September 2015, valid for 3 years. He did not submit the actual licence. The Complainant confirmed that the licence secured in 2015 was of three years duration and stood expired.

He also submitted details of DSP payments received from 17 January 2024.

CA-00064477-004 Minimum Notice

The Complainant submitted hat he had been denied payment in lieu of 4 weeks’ notice, which was his statutory entitlement.

CA-00064477-005 (Withdrawn at hearing)

CA-00064477-006 National Minimum Rate of Pay

The Complainant submitted that he did not receive minimum wage for part of his employment from January 1, 2024. He had been paid €12.00 per hour since he commenced. He argued that he had not received the national minimum wage of €12.70 from January 1- January 10, 2024.

He confirmed that he had not submitted a written request under Section 23 of the Minimum Wages Act 2000.

He exhibited a letter from Citizens Information dated 6 June 2024 which sought details of pay for a pay reference period.

CA-00064477-008 Penalisation for making a complaint under Safety Health and Welfare at Work Act 2005

The complainant contended that he had raised protected disclosure regarding the non-renewal of his forklift licence alongside unsafe working conditions. He submitted that he had been penalised as a result.

In evidence, the Complainant was uncertain about what this claim meant and could not point to a specific protected disclosure or a set date. He focussed instead on his dissatisfaction regarding repairs of the forklift seat and the gutters. He did not draw a nexus between a cause of action and this treatment.

CA-00064477-009   Discrimination on Age Grounds, Victimisation, Harassment

The Complainant outlined that from the final weeks of 2023, that his position was being eroded, and he was being replaced in forklift driving by people who did not hold forklift licences.

This came to a head on January 10, 2024, when the Respondent directed him to leave the premises and hand over keys when he delayed in “clear up some timber in the corner of the store “The behaviour was menacing towards him.

He was directed to leave the site, which he refused to do.

In seeking to defend his right to work, the respondent reminded him that he turned 65 in 2024, and it was “retirement time now “.

The Complainant had no knowledge of retirement at 65 and believed that he had lost his job due to his age. He declined an offer of an early retirement payment of €1,000 as he had not canvassed this.

The Citizens Information service had requested information by means of EE2, where the Respondent had responded that “Mr Murrays employment with the company had to be terminated due to insubordinate actions and to prohibit any further verbal attacks against the owner as described above, not due to his age “

Incident 1 three weeks before Christmas reported the non-renewal of forklift licence and was targeted as oldest member of staff,

Incident 2 10 January 10, 2024. Shouted at by his employer and submitted this was linked to his age.

Incident 3 The Complainant was 64 and placed under pressure to leave his job due to retirement.

In evidence, the complainant submitted that he had been substituted as a forklift driver by an unnamed 48-year-old sub-contractor, who he wanted to be his comparator.

He submitted that he was harassed by the changes made to his duties.

He maintained that his age had never been discussed with him at work. He attributed his dismissal to his age as he contended that he was the oldest worker on site and no provision had been made for age of retirement.

He was unable to ventilate an instance of Victimisation.

CA-00064477-010 (Withdrawn at hearing)

CA-00064477-011 Regulation 18 of the European Communities (Road Transport) Regulations 2012

The Complainant submitted that he was not notified of the working hours regulations applying to the road transport sector.

In evidence, the complainant clarified that he had not been “out on the road “since an unspecified date in 2023.

CA-00064477-012 Records Regulation 18 of the European Communities (Road Transport)Regulations 2012

The Complainant submitted that he ahd requested a copy of his records and did not receive them.

In evidence, the complainant clarified that he had not been “out on the road “since an unspecified date in 2023.

CA-00064477-013 Penalisation under Protected Disclosure Act, 2014

The Complainant submitted that he had raised a protected disclosure in response to his concerns regarding being asked to drive a forklift by his employer without being covered by a licence.

In evidence, the Complainant was unable to expand on the parameters of this complaint.

The Respondent has not engaged with these claims outside of a rejection and an unusual reference to the Equal Status Act 2000, which Is not relevant in this case.

I did receive an Excel spreadsheet prior to the hearing which sought to cast doubt that any of the live claims were properly lodged within the statutory time limits. I was unable to probe these pages in the absence of the Respondent at hearing.

It seemed to me that the Respondent had not taken any advice on these matters as references were made to Rights Commissioners, whose tenure predated the Workplace Relations Act, 2015.

15 July 2024, in response to the notification of claim to WRC

Dear Sir/Madam We acknowledge receipt of your letter dated 11th July 2024 (copy attached). Why are we being contacted about a former employee incident that occurred more than 6 months ago? The period in which to issue a complaint has now expired. Please note, we have been in correspondence with another entity acting on behalf of the complainant since his termination on January 10th, 2024.

The Respondent wrote to the WRC dated 15 July 2024 and cast the complainant as an insubordinate employee whose cessation of employment was linked to health and safety and not his age. The letter outlined a perceived sequence of changes in the complainant’s behaviour which had troubled the respondent. There was no record of a management intervention to accompany these perceptions.

On 26 September 2024, the Respondent forwarded a file summary to underpin that the claims as made by the complainant were either out of time, not applicable or moot.

Good morning following up on my previous emails and for your file reference, I am attaching a copy of our file summary which sets out the applicable legal time limits per the relevant sections of each of the Acts listed in the WRC Complaint. (Note, the final three "Specific Complaint Reference" items listed on the WRC Complaint are moot points - WRC can fact check further). This summary file explains the legal time requirement position applicable to this WRC Complaint and why it was issued out of time per the relevant legislation. It can be reviewed in due course by the Adjudication Officer.

CA-00064477-001 Terms of Employment (Statement of Terms)

The Respondent contended that the WRC failed to issue Complaint to Employer within 6 months from 10th January 2024.

CA-00064477-002 Terms of Employment (Notification of change)

 The Respondent contended that the WRC failed to issue Complaint to Employer within 6 months from 10th January 2024.

CA-00064477-003 Claim for unfair dismissal

The Respondent contended that the WRC failed to issue Complaint to Employer within 6 months from 10th January 2024.

CA-00064477-004 Minimum Notice

The Respondent contended that the complainant had engaged in an act of Gross Misconduct on 10th January 2024 (as witnessed by others).  Employee dismissed without notice on that date.

CA-00064477-005 (Withdrawn at hearing)

CA-00064477-006 National Minimum Rate of Pay

The Respondent contended that no Complaint issued by WRC within 6 months from 10th January 2024.

CA-00064477-008 Penalisation for making a complaint under Safety Health and Welfare at Work Act 2005

The Respondent contended that no Complaint issued by WRC within 6 months from 10th January 2024.

CA-00064477-009   Discrimination on Age Grounds, Victimisation, Harassment

 The Respondent contended that no Complaint issued by WRC within 6 months from 10th January 2024.

CA-00064477-010 (Withdrawn at hearing)

CA-00064477-011 Regulation 18 of the European Communities (Road Transport) Regulations 2012

The Respondent contended that no driving licence is required to drive Forklift in private yard (i.e. not on public roads).

CA-00064477-012 Records Regulation 18 of the European Communities (Road Transport) Regulations 2012

Mr. Murray drove a small Truck to the recycling centre located 10 minutes from owner's yard on 2 occasions.  Mr. Murray's driving licence covered driving of same vehicle.

CA-00064477-013 Penalisation under Protected Disclosure Act, 2014

Employee's statement did reference others using Forklift in yard without requisite licence. The respondent wrote in to outline that a licence was not required to use the forklift in private yard - i.e. not on public roads.

I am unable to showcase any further response from the Respondent as there was no appearance by or on behalf of the Respondent at hearing.

I did not receive any reason for this absence. I am certain that the Respondent was properly notified of the hearing. The Respondent did not seek to postpone the hearing for any reason; therefore, I have formed the opinion that their absence was unreasonable.

I will now press on to a brief commentary and findings in this case.

I have been requested to make 11 decisions in this case. In reaching my decisions, I have had regard for the Complainants outline submission and appendices in addition to his evidence adduced at hearing. I have also reviewed the DSP records and the explanation on the forklift licence.

I have had some regard to the documentation submitted by the Respondent in this case. However, given that it was not accompanied by a physical presence at hearing, or availability for cross examination, I have found limited benefit in these documents alone, which merely reject the claims made.

I would like to state at the outset that both parties appear to have been in an employment relationship from 2015. I have no formal documentation which captures the commencement or conclusion of employment or provision of any tools in which a troubled employee or an aggrieved employer can navigate a workplace conflict.

The WRC Adjudication Service is a statutory body and intervention in private employment settings is reserved for exploration of whether there has been a contravention in employment rights or presence of a Trade Dispute? It is presumed that parties will have endeavoured to try and resolve workplace disputes in the workplace or as near as possible to the workplace prior to summoning a State Body.

In this case, the employment ended on January 10, 2024. The Complainant submitted 13 complaints to the WRC on 2 July 2024, many claims incorporated similar circumstances.

Once the State Body is summoned by a complainant, via a WRC complaint form, it is hoped that the Employer will either seek to resolve matters amicably or at the very minimum come to hearing to defend their position.

There is no substitute for an Adjudicator being facilitated to hear from both sides by the presence of both Parties.

In the instant case, I was presented with the circumstances of the remnants of an employment relationship, hastily concluded on January 10, 2024.

I was not afforded access to the Respondent story.

What makes these cases even more difficult to fathom is that the Advisory service did not accompany the complainant to hearing. I could see that the complainant was keen to be heard but visibly struggled with the enormity of the claims he carried alone .

It was clear that the complainant came to hearing to recount a story of feeling mistreated at work. He visibly struggled in seeking to match the facts of his story to multitude of different laws, not previously known to him.

It may have assisted the parties greatly to have engaged once a “cooling off “period had concluded after January 10.

I would ask that all parties who have touched the edges of this case to reflect on their roles in respect of this case, to at least consider if they could have done more to resolve the claims before State intervention.?

To guide this reflection, I direct the parties squarely to

SI 146/2000 Code of Practice on application of grievance procedure.

I will now press on to my findings.

CA-00064477-001 Terms of Employment

The Complainant submitted that he had not received a Statement in writing of his terms of employment. He told me that he was one of two employees in his role.

The Respondent informed me that the claim was statute barred but did not come to hearing to expand on that contention.

My jurisdiction in this case is drawn from Section 3 of the Terms of Employment (Information) Act 1994.

 Written statement of terms of employment.

3.— (1) An employer shall, not later than F9[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, that is to say—

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made,

[(n) the training entitlement, if any, provided by the employer,

(o) in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and

(p) if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of —

(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours,

(ii) the reference hours and days within which the employee may be required to work, and

(iii) the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and

(q) where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.]

I have inserted these terms for illustrative reasons. It is of note that the Advisory service did canvas for a Personnel file with the Employer, yet neither party exhibited the vital Statement of Terms required in this claim.

Section 41 (6) of the Workplace Relations Act 2015 

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The issue of having a Statement of Terms of Employment should be viewed as a navigation tool in any employment. It sets a number of rules for both Parties to have regard for and honour. Its absence in this case has been pronounced and goes to the very heart of the case.

In response to the Respondent submission that the claim is statute barred, I am to introduce the parties to the precedent in ADJ A Doctor v Public Service Provider [2020] 31 ELR 159, which drew on the concept of a subsisting breach.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.”

In the instant case, the complaint was received by the WRC within 6 months of the last day of employment, January 10, 2024.

 I have not established that the Complainant had not been provided with a Statement of Terms. I have found a subsisting breach of Section 3 of the Act.

I find the claim is well founded.

CA-00064477-002 Terms of Employment, Notification of Change

  Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect,

The Complainant did not demonstrate a contravention of Section 5 within the cognisable period. He referred to changes in his work tasks before Christmas 2023 and an absence of bonus, which predated the cognisable period.

I have not had the benefit of a written Statement of terms of employment to check whether the forklift licence was an integral mention.

It is of note that he did not raise a grievance when things were going wrong for him on the plant.

At any rate, this claim is statute barred.

The claim is not well founded.

CA-00064477-003 Unfair Dismissal

The Complainant has claimed that he was unfairly dismissed when his employer told him to leave the yard in January 2024. He did not leave immediately but prepared for his unexpected departure by seeking a record of his start date in the job to support a claim for Job Seekers Benefit. He provided a context and background of being sidelined when others were offered forklift driving and recounted his irritation when repairs were not completed or his own forklift licence stood expired. However, on inquiry, I subsequently found that the licence had expired in 2018, not 2023.

He then entered an extended text exchange with the company representative, Ms O’ Donovan which led to him accepting that he had been dismissed and refusing an offer of €1,000 severance.

The Respondent has denied the claim and set out some pages on their perceived difficulties with the complainants changed behaviour at work and   insubordination. They reject the complainant’s reliance on the licence renewal as they state, albeit from a distance, that a forklift licence is not necessary for yard driving. The Complainant by his own admission confirmed that he had not driven on the road since 2023, no date provided.

I am satisfied that the Complainant was summarily dismissed from his job on January 10, 2024. I accept his evidence that he had the requisite service to pursue this claim.

Section 1 of the Act on Dismissal means:

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

Unfair dismissal.

6.— (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

The burden of proof rests with the Respondent to prove that the dismissal was fair, and a defence is permitted in Section 6(4) of the Act.

Section 6(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 8(2) of the Act addresses the statutory time limits.

2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal,

I find that the Respondent is mistaken when they state that this claim is out of time as I have recorded the dismissal as 10 January 2024 and the claim was received by WRC on 2 July 2024.

This claim is within the permitted statutory time limits and the Respondent has not appeared to defend the case.

As I listened to the complainant, I could see that he was shaken by his interactions with the business owner on January 10, 2024. He acknowledged knowing him for over 30 years.

It may well have happened that things were changing at the business, and each party was tiring of the other. That is the language of severance or even redundancy.

On the facts before me, and in the absence of a credible defence from the respondent, I find that the complainant was unfairly dismissed.

I would say that this is an example of how not to conduct a dismissal as there was a complete void in any procedural framework, any listening exercise, any natural justice.

From the uncontested evidence of the complainant, I accept that he was shaded out of his employment to the point of extinction on January 10, 2024.

I would have liked to have heard the Respondent story in response, but that is not to be.

I have found that the complainant was unfairly dismissed as I have no substantial grounds for his dismissal in evidence and I have no access to any procedural framework which might allow me to conclude that this dismissal fell within the range of reasonable options open to the respondent.

The Complainant was unfairly dismissed.

CA-00064477-004 Minimum Notice

Section 4 of the Act sets out the notice period based on continuous service.

Minimum period of notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

I find that the complainant did not receive notice and based on his service, he is entitled to succeed in his claim for 4 weeks.

The claim is well founded.

CA-00064477-006 National Minimum Wage

The Complainant has submitted that he did not receive the national minimum wage for the final week of his employment in January 2024. He confirmed that he had received €12 per hour and that he had missed out on the increase in Minimum wage of €12.70 from January 2024. He confirmed that he had not requested a statement from his employer on his average hourly rate of pay for his pay reference period.

The Advisory body had attached a request for this information dated 6 June 2024, 5 months after the cessation of employment and had referred the claim to the WRC prior to 4 weeks after this request.

The Respondent contended that the claim was statute barred.

For my part, Section 23 and 24 of the National Minimum Wage Act, 2000 are of relevance here.

Disputes about entitlement to minimum hourly rate of pay.

24.— (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 rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35

I did not receive confirmation from either of the parties that any inter party conversation regarding minimum wage had occurred in this workplace, and this is a rearguard claim.

Section 23 of the Act obligates the complainant to have submitted a request for an average rate of pay for a specified pay reference period.

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

23.— (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 per cent 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—

I find that the Complainant has not demonstrated compliance with his obligations set out in Section 23 of the Act to seek to obtain a statement during the course of his employment.

I find the claim is not well founded.

CA-00064477-008   Safety Health and Welfare at Work Act, 2025

The Complainant has submitted that he was penalised for complying with making a complaint under the Safety Health and Welfare at Work Act. He was unable to give me much specific detail on this as distinct from his claim for unfair dismissal.

Protection against dismissal and penalisation.

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

The Respondent has raised that this claim is statute barred, but did not attend the hearing to articulate that argument.

The Complainant written submission reflects that he was sidelined at the business once he raised the topic of the expired forklift licence. He maintained that this led to his dismissal.

The Complainant has already received relief under the Unfair Dismissals Act 1977 and Section 27(5) prevents a dual recovery.

At any rate, I have since learned that the licence stood expired for quite a considerable period prior to the complainant raising this issue with the Respondent.

I find that Issue Estoppel is at play here and the complaint is not well founded.

CA-00064477-009 Employment Equality

The Complainant has attributed his dismissal to his age. The Respondent has stated that the claim is statute barred.

The Complainant was unable to expand on his claim for victimisation at hearing.

It was clear to me that the circumstances were those already addressed in the claim for unfair dismissal above. He named a comparator who was a sub-contractor and not a direct employee.

Victimisation is defined in Section 74(2) of the Act,

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

I have not established facts within the 6 months preceding this complaint which permit me to infer that the Complainant has been Victimised on age grounds.

Barrett v Department of Defence EDA 1017

1 a complaint of discrimination.

2 the complainant must be subject to adverse treatment.

3 treatments must be in reaction to the protected act.

While I understand that the Complainant believed that he had been unfairly treated in the final weeks of his employment, I have not found that he was harassed. I have already decided that he was unfairly dismissed on the same set of facts.

I was fortunate to be able to clarify the complainants’ intentions at hearing with regard to his claim under the Age Discrimination aspect of the complaint form. He clarified that he was dismissed due to his age, then sixty-four.

It is my opinion that this claim is curtailed by application of

Section 104 (4A) (a) Where an employee refers—

(i) a case or claim under section 77, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

(b) In this subsection—

"Act of 1977" means the Unfair Dismissals Act 1977;

"dismissal" has the same meaning as it has in the Act of 1977.

"Relevant date" means such date as may be prescribed by, or determined in accordance with, regulations made by the Minister for Jobs, Enterprise and Innovation.

I am satisfied that both claims under Section 77 of the Employment Equality Act 1998 and the claim for unfair dismissal in accordance with Unfair Dismissals Act 1977 arise from the set of facts surrounding the dismissal of January 10, 2024.

The claim for Discrimination refers to a claim for Discriminatory Dismissal, where re-instatement was initially sought and later clarified at hearing.

I have already made a decision regarding the claim for unfair dismissal and deem that the claim for discriminatory dismissal on age grounds is curtailed by application of Section 104(4(a)(a)) from 2 July 2024.

The claim for discriminatory dismissal is deemed to be withdrawn.

CA-00064477-011 Terms and Conditions of Employment, Regulation 18, Organisation of Working Time of Persons Performing Mobile Road Transport Activities Regulations 2012

The Complainant has claimed that he was not notified of the working hours regulations which applied to the road transport sector.

Regulation 18 of SI 36/2012 permits me to remedy an established contravention of Regulation 5, 8, 9, 10, 11 or 12.

This claim is directed at Regulation 11.

11. Obligation to notify mobile worker

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.

The Respondent has termed the claim as out of time. They added that the complainant was not required to drive on the road on the forklift.

In listening to the complainant give his uncontested evidence, I was unsure on whether his description of his work was aligned with the definition of a mobile worker for the purposes of these Regulations. He admitted that he had not participated in road transport activities during the 6 months prior to the submission of this complaint. This seemed to fit with the Respondent observation.

A mobile worker is defined in EU Directive 2002/15/EC, March 2002. I cannot establish that the Complainant is a mobile worker under the Regulations SI 342/2015.

This claim is also subject to the provisions on statutory time limits as set down in Section 41(6) of the Workplace relations Act 2015, Schedule 5 Part2.

I find that this claim is outside of the statutory time limit.

The claim is not well founded.

CA-00064477-012 Records, Regulation 18, Organisation of Working Time of Persons Performing Mobile Road Transport Activities Regulations 2012

The Complainant has submitted that he requested a copy of his records.

The Complainant was unable to give me details surrounding the specifics in his evidence.

The Respondent has deemed the complaint as out of time and added that the complainant was not required to drive the forklift on the public road.

In listening to the complainant give evidence, which was uncontested, I was unsure on whether his description of his work was aligned with the definition of a mobile worker for the purposes of these Regulations. He admitted that he had not participated in road transport activities during the 6 months prior to the submission of this complaint.

A mobile worker is defined in EU Directive 2002/15/EC, March 2002. I cannot establish that the Complainant is a mobile worker under the Regulations SI 342/2015. Consequently, I cannot establish that he can avail of the protection of Regulation 12.

12. Obligations on employer

An employer shall do each of the following in relation to each mobile worker employed by him or her:

(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability.

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation.

c) include time worked for another employer in the calculation of the mobile worker's working time.

(d) keep records which are adequate to show that these Regulations are being complied with.

(e) retain records referred to in this Regulation for at least [3] years after the end of the period covered by those records.

(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker.

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require.

(h) provide to the mobile worker or to an enforcement officer copy of such documentary evidence in the employer's possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

This claim is also subject to the provisions on statutory time limits as set down in Section 41(6) of the Workplace Relations Act 2015, Schedule 5 Part2.

I find that this claim is outside of the statutory time limit.

The claim is not well founded.

CA-00064477-013 Protected Disclosure

The Complainant has once more submitted a set of mirrored circumstances to ground this claim.

He claimed that he raised the issue of renewal of his forklift licence in late 2023 and subsequently was sidelined at work and subsequently dismissed.

In evidence, he was unable to give me any detail of the protected disclosure. I am mindful that I have already found that the complainant was unfairly dismissed.

The topic of the forklift licence runs through this complaint. This licence had expired in 2018, and I have no indication that it was renewed.

The Complainant did not address why he waited until 2023 to chase this renewal.

I heard uncontested evidence of the growing unease which seemed to develop from late 2023 and ignited on January 10, 2024, the day of his dismissal.

At the heart of this was a personal grievance against the business owner.

A careful reading of Section 5 of the Act is required here.

Protected disclosures.

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B,8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes grossmismanagement

[(h) that a breach has occurred, is occurring or is likely to occur, or

[(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

I wish to draw the Parties attention to Section 5(5)(A) when I say that I heard that the complainant had interpersonal grievances about interpersonal conflicts about his employer, which concerned him exclusively and therefore is not a relevant wrongdoing for the purposes of this Act.

I understand the complainants point regarding the forklift licence; however, this is intrinsically linked to the interpersonal conflict of perceived exclusion, which ought to have been processed as a grievance as provided in Section 5( 5)(a).

It must have been known to either of the parties that the forklift licence had expired long before the hearing in this case. I am clear that the complainant understood that he was acting in good faith and understood he needed a forklift licence for yard driving. I have no means of validating the rights or wrongs of that view.

This case is distinguished from the facts in Baranya v Rosderra, Irish Meats group ltd [2022] 2 IR 97, at the Supreme Court.

I have not established that the complainant made a Protected Disclosure in accordance with Section 3 and 5 of the Act.

I find the claim is not well founded. 

CA-00064477-001   Statement of Terms

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with Section 3 of the Act.

I have found the complaint to be well founded. I have established a subsisting breach of Section 3 of the Act. I order the Respondent to pay the Complainant €1,080 (4 weeks remuneration) in respect of that contravention.

CA-00064477-002 Notification of Change

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with Section 3 of the Act.

This claim is statute barred. It is not well founded.

CA-00064477-003 Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed.

He has revised his claim for re-instatement to compensation. I am not satisfied that he has sufficiently mitigated his loss as his hopes to become self-employed again cannot be held against the Respondent. I am to measure financial loss.

On all the circumstances and in particular, the lack of any management footprint at the conclusion of employment, I order the Respondent to pay the Complainant €14,000 as a just and equitable remedy for his Unfair Dismissal. This amounts to 52 weeks remuneration.

CA-00064477-004 Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in accordance with Section 4 of this Act.

I have found the claim well founded. I order the Respondent to pay the complainant €1,040 as compensation for the loss sustained by the employee by reason of the contravention of Section 4.

CA-00064477-006 National Minimum Wage

Section 24 of National Minimum Wage Act, 2000 requires me to make a decision in relation to this complaint.

I have found the complaint is not well founded. 

CA-00064477-008 Safety Health and Welfare at Work Act, 2005.

Section 28 of the Safety Health and Welfare at Work Act, 2005 requires that I make a decision in acco0rdance with Section 27 of that Act.

By application of Section 27(5) of the Act, I find that Issue Estoppel is at play here and the complaint is not well founded.

CA-00064477-009 Employment Equality Act 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The claim for discriminatory dismissal is deemed to be withdrawn by operation of Section 104(4A) (a) of the Act.

I have not established that the complainant was victimised on age grounds.

I have not established that the complainant was harassed on age grounds.

CA-00064477-011 Terms and Conditions of Employment, Regulation 18, Organisation of Working Time of Persons Performing Mobile Road Transport Activities Regulations 2012

I find that this claim is outside of the statutory time limit.

The claim is not well founded.

CA-00064477-012 Terms and Conditions of Employment, Regulation 18, Organisation of Working Time of Persons Performing Mobile Road Transport Activities Regulations 2012 (records)

I find that this claim is outside of the statutory time limit.

The claim is not well founded.

CA-00064477-013 Protected Disclosure

Schedule 2 of the Protected Disclosure Act 2014 requires that I made a decision in accordance with Section 12(1) of that Act.

I have not established that the Complainant made a Protected Disclosure in this case.

I find the claim not well founded.

Unfair Dismissal and related issues following Summary Dismissal.