Complainant

Respondent

Parties

Carlos  Gomes

Marsuf Limited trading as BR Transport Limited

Representatives

Ms. Áine Feeney, SIPTU

Mr. Edmond Cahill

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-00056113-001

17/04/2023

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-00056113-002

17/04/2023

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

CA-00056113-003

17/04/2023

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

CA-00056113-004

17/04/2023

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

CA-00056113-005

17/04/2023

The Complainant commenced employment with the Respondent on 26th July 2021. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €761.00. The Complainant’s employment terminated on 30th November 2022.

On 17th April 2023, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that the Respondent did not provide him with a contract of employment, and did not issue a correct payment for outstanding annual leave on the termination of his employment. By response, the Respondent partially denied these complaints, stating that the Complainant received in excess of his statutory annual leave entitlement in the course of his employment.

Following a series of adjournments, a hearing in relation to this matter was convened for, and finalised on, 30th July 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued submission in advance of the hearing, said submissions were expanded upon an contested in the course of the hearing. The Complainant gave evidence in support of his complaints, while the Managing Director of Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

By submission, the Complainant stated that he commenced employment on 26th July. At all relevant times he was engaged as an HGV driver. In evidence, he stated that he was not provided with a statement of terms of employment at any stage of his engagement.

In evidence, the Complainant stated that the only annual leave he availed of was 15 days in August 2022. The Complainant’s employment duly terminated on 30th November 2022.

Following the termination of the Complainant’s employment, his representative wrote to the Respondent requesting payment for the outstanding five days of annual leave, and querying the position regarding the Respondent’s failure to issue a statement of term of employment. By response, a representative on behalf of the Respondent submitted that the Complainant received a statement of terms of employment but did not sign the same

By submission, the Complainant submitted that he never received a contract of employment as ascerted by the Respondent.

By response, the Respondent denied each of the allegations raised by the Complainant.

Regarding the Complainant’s contract of employment, the Respondent stated that the same was issued to the Complainant at the outset of his employment. Unfortunately, the Complainant refused to sign the same and the unsigned copy remained in the Complainant’s file, awaiting completion.

Regarding the Complainant’s outstanding annual leave, the Respondent set out a detailed breakdown of the days on which the Complainant received annual leave. In this regard, the Respondent accepted that the Complainant availed for the 15 days continuous period of annual leave. Notwithstanding the same, they submitted that the Complainant availed of a further 11.5 days of leave, taking his entitlement to 26.5 days. Given the duration of the Complainant’s engagement the Respondent submitted that this exceeded the Complainant’s entire statutory annual leave entitlement and that no payment was due on the termination of his employment.

CA-00056113-001 Complaint under the Terms of Employment (Information) Act

Regarding this complaint, the Complainant has alleged that the Respondent failed to provide a statement of terms of employment at or near the commencement of his employment. In denying this allegation, the Respondent submitted that the Complainant was issued with a statement that complied with the requirements set out in the Act. They submitted that the Complainant failed to sign same on receipt.

In this regard, it is noted that the Act requires an employer to issue a signed statement of the terms of employment at or near the commencement of employment. There is no requirement for an employee to sign the same, rather the Respondent must retain the statement itself and, ideally, some evidence of the communication of the same to the employee in question.

In the present case, taking the Respondent’s case at its height, it is apparent that the Respondent did not issue a signed copy of the statement to the Complainant, did not retain the document for any period of time and could not produce any evidence demonstrating that the same was communicated to the Complainant. In consideration of the foregoing points, I fin that the Respondent is in breach of the Section 3 of the Act, and consequently his application succeeds.

CA-00056113-002 Complaint under the Mobile Transport Regulations

Regarding this complaint, the Complainant alleged that he did not receive information regarding the working hours relevant to the sector. In circumstances where the Respondent has not demonstrated compliance with the relevant provision of the Regulations, I find that this complaint is well founded.

CA-00056113-003 Complaint under the Terms of Employment (Information) Act

In circumstances whereby this complaint is a duplicate of that listed above, I find that the same is not well-founded.

CA-00056113-004 Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant has alleged that he did not receive adequate compensation for unused annual leave on the termination of his employment. In this respect, he stated that for the entirety of his engagement he availed of one, continuous, 15 day block of annual leave and one additional day. In this regard, he submitted that he was due a further five days on the termination of his employment. By response, the Respondent submitted that the Complainant had taken numerous other individual days of annual leave. While the same were not recorded as annual leave on the Complainant’s payslips, the same were granted on an ad hoc basis by the Respondent. In support of this contention the Respondent opened various internal records demonstrating that the Complainant’s vehicle was not in use on the dates in question.

In this regard, it is apparent that the Complainant accrued a total of 26.93 days, to be rounded up to 27 days in total. By submission, and in evidence, the Managing Director of the Respondent stated that that on numerous occasions he permitted the Comlplainant to be absent for various personal reasons, including attendance at a funeral and various medical appointment. By response, the Complainant accepted that he was not present in work on those days but stated that he was not aware that the same were to be considered  as annual leave.

Having regard to the foregoing, it is apparent that the Respondent permitted that Complainant to avail of various ad hoc days of leave, for which he was paid. From the evidence of the Complainant, it is further apparent that these days were not requested, or recorded, as annual leave and he believed that they were granted as a good-will gesture by the Respondent.

In such circumstances, it is the duty of the Respondent to accurately record the Complainant’s annual leave entitlement and the amount of same he had availed of at any given time. In circumstances whereby the Respondent has not done so, and the Complainant was under the impression that the absences were not to be considered annual leave for the purposes of the Act, I find that the Complainant did not receive adequate compensation for his outstanding annual leave on the termination of his employment. Having regard to the foregoing, I find that the complaint is well-founded.

CA-00056113-005 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint is a duplicate of that listed above, I find that the same is not well-founded.  

CA-00056113-001 Complaint under the Terms of Employment (Information) Act

I find that the complaint is well-founded.

Regarding redress, I award the Complainant the sum of €2,283, or the equivalent of three week’s remuneration, in compensation.

CA-00056113-002 Complaint under the Mobile Transport Regulations

I find that the complaint is well-founded.

Regarding redress, I award the Complainant the sum of €761, or the equivalent of one week’s remuneration, in compensation.

CA-00056113-003 Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00056113-004 Complaint under the Organisation of Working Time Act

I find that the complaint is well-founded.

Regarding redress, I award the Complainant the sum of €761, or equivalent of the present year’s outstanding annual leave payment on the termination of employment. In circumstances whereby the Complainant availed of paid leave during his employment, I make no award as to compensation in respect of the breach.

CA-00056113-005 Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

Annual Leave, Termination, Ad Hoc