ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002370
Complaint(s)/Dispute(s) for Resolution:
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-00003211-002 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003211-003 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00003211-004 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003211-006 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00003211-007 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003211-008 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00003211-009 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00003211-010 | 15/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003211-011 | 15/03/2016 |
Date of Adjudication Hearing: 6/09/2016 and 17/01/2017
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/ to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Stablehand | A Racehorse Stables |
Complainant’s Submission and Presentation:
For the year 2015 the complainant was only paid two weeks holidays and took these weeks during the summer when the business got quiet. It was his understanding that he was entitled to four weeks paid holiday during a year’s work. The complainant was never paid for the two weeks he didn't take. |
The complainant worked every public holiday since starting employment with the company as he was told he would have to and never received any extra pay or days off. When the issue of the contract suddenly arose on Thursday 10th March 2016 the complainant asked would all the public holidays be backdated and was told no, it was starting from St Patricks day 2016. |
The complainant was laid off on Monday 14th March 2016 as he would not sign a contract that he did not agree with. The manager rang that afternoon and told him if the contract was not signed by 5pm on that day she was letting him go. The complainant got no notice and no pay. |
The complainant took up employment on 10/11/2014. He never received a contract within the first two months of his employment. On Thursday, 10th March 2016, a man who the complainant believed to be the company accountant came into the yard and gave out contracts telling staff that it was the law that they had to sign them and give management their passports to copy. The complainant refused to do so as he did not agree on a number of things in the contract and the manager would not take the time to come to an agreement with him. When the complainant started employment he had a verbal contract which he always stuck to. The complainant understands that it is not a legal requirement for an employee to sign a contract. |
The complainant was told when he started employment that he was to be paid €470 before tax, €400 after tax. The complainant received no payslips and just believed this to be the truth. In the written contract it was stated that he was earning €458.08 before tax. The complainant was not notified of any cut to his salary. |
The accountant stated that management wanted a copy of each employee’s passports to prove that they were Irish. The complainant believed that it was against Data Protection for an employer to hold this kind of information. The complainant feels that he was unfairly dismissed as he was given no notice and also because he was not given any chance to rectify the matter. The complainant contacted the manager on the evening of Monday 14th March 2016 and also on Tuesday 15th March 2016 asking her for his P60 as he had still not received it and also requested his wage slips that he had never been given but she did not respond. |
Respondent’s Submission and Presentation:
The complainant received all holiday pay due to him.
The complainant received all Public Holiday payments due to him.
The complainant left his place of work on 14 March 2016 suddenly and without permission. The respondent did not ask him to leave and therefore the question of pay in lieu of notice does not arise.
The respondent did not terminate the complainant’s employment. The respondent did not tell him that if he refused to sign the contract they would be “letting him go”. A text was received that evening from the complainant requesting a letter of dismissal. The complainant left the employment by his own choice.
The respondent issued the complainant with a contract of employment in compliance with Section 3 0f the Terms of Employment (Information) Act, 1994.
The complainant received notification in writing of changes to his terms of employment in compliance with Section 5 of the Act.
The respondent requested employees to produce original documentary evidence of their right to undertake employment in Ireland. This was done in line with the relevant legislation. The complainant refused to do this.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 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.
Issues for Decision:
Did the complainant receive his entitlements to annual leave and public holidays in accordance with the provisions of the Organisation of Working Time Act, 1997?
Was the complainant entitled to payment in lieu of minimum notice and, if so, did he receive same?
Did the complainant receive a statement of employment as per the provisions of the Terms of Employment (Information) Act, 1994.
Were the terms of the complainant’s contract changed and, if so, was he notified in writing of same in accordance with the provisions of the Terms of Employment (Information) Act, 1994.
Was the complainant unfairly dismissed as per the provisions of the Unfair Dismissals Act, 1977.
Legislation involved and requirements of legislation:
Section 19(1) of the Organisation of Working Time Act, 1997, states:
Subject to the first schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –
4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):,,,
Section 21(1) of the Act states:
Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –
a paid day off on that day,
a paid day off within a month of that day,
an additional day of annual leave,
an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:
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.
The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –
If the employee has been in the service of his employer for less than two years, one week…
Section 3(1) on the Terms of Employment (Information) Act, 1994, sets out the requirement for an employer to furnish in writing, not later than 2 months after the commencement of employment by the employee with the employer, a statement setting out the particulars of the terms of employment as detailed within the subsection.
The Unfair Dismissals Act, 1977, includes the following definition of “dismissal”:
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…
Section 6(7) of the amended Act states:
Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal of an employee is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –
To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
To the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment)Act,1993) of section 7(2) of this Act.
Decision:
The hearing on the first day was adjourned as the case could not be completed within the time allotted. On the second day, 17th January 2017, the respondent did not attend and was not represented. As no postponement had been granted and the complainant was present the hearing went ahead.
Complaint No. CA-00003211-002:
This complaint relates to the claim by the complainant that he was not in receipt of his correct annual leave entitlement. The respondent stated that it was the practice in the stables during big racing festivals for staff to work half-days and for the balance to come from their annual leave entitlement. It was clear from the evidence that the employer failed to keep proper records as required by regulations under the Act. The book-keeper employed for administration duties stated that wages were made up on information supplied by the respondent’s manager and that no time recording in respect of staff was in operation. I therefore find this complaint to be well founded and order the respondent to pay the complainant the sum of €925.00 in compensation in that regard.
Complaint No. CA-00003211-003:
The respondent’s position was that the complainant had received his entitlements in respect of Public Holidays. According to their evidence the complainant worked some Public Holidays but either worked half-days or did not work on other such days. The complainant stated that he worked every Public Holiday except Christmas Day. Due to the failure to keep proper records the respondent has failed to discharge the onus on them in this regard. I therefore find that the complaint is well founded. There are four Public Holidays in the reference period prior to the complaint being lodged. Having regard to all matters I order the respondent to pay to the complainant the sum of €370.00 as compensation in this regard.
Complaints Nos. CA-00003211-006/7:
These appear to be duplicate complaints in relation to Annual Leave and Public Holidays and accordingly have been dealt with above.
Complaint No. CA-00003211-008:
This complaint relates to the claim that the complainant did not receive a copy of his Statement of Employment from the respondent within the time frame specified by the legislation. At the outset of the hearing the respondent conceded that they had been in breach of the Act in that regard. I therefore find that this complaint is well founded and order the respondent o pay to the complainant the sum of €1,750.00 as compensation in this regard.
Complaint No. CA-00003211-009:
This is a complaint that the respondent did not notify the complainant of a change in his terms of employment. In specific terms this relates to an assertion by the complainant that he had been informed when he commenced employment that he would be paid €470.00 gross which would equate to €400.00 net after deductions. When he was given a written contract in March 2016 he saw that his gross pay was to be €458.08. The payslips presented by the respondent at the hearing (which the complainant says he never got) show a gross figure of €463.89 as being his weekly pay. In any event the law states that any change is required to be notified in writing and this complaint arose from the fact that for the first time the complainant got his statement of employment in writing. I therefore cannot find this complaint as presented to be well founded and it fails accordingly.
Complaint No. CA-00003211-011:
The complainant claims that he was dismissed whereas the respondent claims that the complainant left the workplace without notice and subsequently requested his P45 form. On 10 March 2016 the yard staff were handed written contracts by a person that the complainant understood to be the respondent’s accountant. They were also requested to supply a copy of their passport and, if applicable, a valid driving licence. The complainant attempted to raise issues in relation to both the contents of the contract and the documentation request with the accountant but did not receive any satisfactory response other than being told that the law required him to comply. The complainant believed that there was no legal requirement for him to sign the contract and felt that being asked for his passport in order that it be photo-copied was a breach of data protection regulations. On 14 March 2016 the complainant stated that the manager had contacted a colleague with a message for him to the effect that he had until 5pm that day to sign the contract and provide the required I/D. The complainant’s evidence is that he then contacted the manager and asked if he would be let go if he did not comply with the request and was told that he would be let go by 5pm. The complainant then left the premises and subsequently tried to contact the owner to no avail.
The respondent’s position was that members of staff were informed by letter on 14 March 2016 that there was a requirement to ensure that all employees provided documentary proof of their right to undertake work in Ireland. The letter also referred to the requirement for those staff who drove company vehicles as part of their employment to provide proof that they had a current, valid driving licence. They were given until 5pm on 14 March to comply with this request. On that day they phoned a number of employees, including the complainant, to remind them of this. At about 3.30pm the complainant left the workplace after informing colleagues that he was being let go. A number of texts were received that evening from the complainant querying the termination of his employment. Subsequently they received a request from the complainant asking for his P45 form and any monies due to him which they then processed.
Having carefully considered the evidence before me I have reached the conclusion that the complainant did not in fact resign. I am reinforced in that regard by referring to the letter sent by the respondent dated 15 March 2016. The complainant stated in evidence, however, that he did not receive this letter until about four weeks after that. In that letter from the manager it is stated “Later on in the evening of 14th we received numerous telephones and texts asking why we terminated your employment.” The complainant’s evidence was that he attempted to contact the owner that evening with regard to the termination of his employment but got no reply. The letter goes on to note that the complainant had not attended work on 15 March and that “we have now heard from you saying that you want your P45…” I therefore find it hard to accept that the letter was sent on 15 March as dated. It was evident that the complainant believed himself to have been dismissed and attempted to contact the owner to establish why this had happened but that the employer did not return his calls or take any other reasonable steps to establish contact with him in order to clarify matters and in particular to advise the complainant that he had not been dismissed.. The manner in which the respondent had issued the contracts and the request for documentation without proper discussion or communication was at the heart of the problem. I find that the actions of the employer with regard to the events leading to the termination of the employment of the complainant were not reasonable and that the complainant was unfairly dismissed.
I also believe that the complainant could have been more pro-active in attempting to communicate his issues in relation to the contract / document request even though he believed the manager to be unapproachable. In this respect I find that he had a contribution to the outcome of these events.
I note that the complainant states that he has until recently only found sporadic employment and that his present employment is on a part time basis. Taking all factors into consideration I order the respondent to pay to the complainant the sum of €10,000.00 as compensation in this regard..
Complaint No. CA-00003211-010:
This is a claim for payment in lieu of notice. Following on my finding that the complainant was unfairly dismissed I find this complaint to be well founded and order the respondent to pay to the complainant the sum of €463.89 as compensation.
Dated: 08 March 2017