Complainant

Respondent

Parties

David  Reddan

RPM Sports Ltd

Representatives

Act

Complaint/Dispute 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-00065787-001

03/09/2024

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

CA-00065787-002

03/09/2024

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-00065787-003

03/09/2024

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

CA-00065787-004

03/09/2024

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

CA-00065787-005

03/09/2024

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

CA-00065787-006

03/09/2024

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

CA-00065787-007

03/09/2024

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

CA-00065787-008

03/09/2024

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

CA-00065787-009

03/09/2024

The Complainant swore an Affirmation at the outset of the hearing. The Complainant was a General Operative with the Respondent and commenced employment on 1 November 2011 until 3 March 2024.

Mr. Rory McLoughney, Director of the Respondent gave evidence on behalf of the Respondent. The Respondent company engaged in the business of sports equipment sales.

Despite being on written notice of the guidelines to provide documentary evidence in advance of the hearing date, the Respondent only provided a written statement with a contract presented.  There were emails sent by the Complainant on the morning of the hearing but were not available at the hearing and therefore could not be relied upon. Therefore, between the two parties there was very scant documentary evidence to support their evidence.

The Respondent availed of the opportunity to cross examination with the Complainant opt to present his own evidence only.

The Complainant stated that he had to have the hearing in person previously, this was refused. It was decided that the hearing would progress remotely, and it remained open to the Complainant to make an application again if any difficulties arose. The hearing proceeded remotely without issue.

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

CA-00065787-001

It was the Complainant’s evidence that he requested a contract of employment in June 2023 but was never furnished with a copy. He denied receiving a contract in 2014.

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

CA-00065787-002

The Complainant stated in the Complaint Form that he did not receive written notification of the change of his role. However, at the hearing it was his evidence that his “role never changed”.

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-00065787-003

The Complainant gave evidence that he delivered water within a 50km radius on “short journeys” driving a van from 2019 – 2020.

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

CA-00065787-004

It was the Complainant’s evidence that he was summarily dismissed by letter dated 7 December 2023. He replied to the Respondent advising that he was not advised his employment was at risk or afforded fair procedures. The next response from the Respondent came on 5 March 2024 advising he would be paid up to and including 31 March 2024.

He accepted that he was paid until 31 March 2024. Upon inquiry he was asked what work he undertook from August 2023 to March 2024 for the Respondent which remains unclear.

The Complainant was asked about his efforts to mitigate his loss; it was his evidence that “I do not see any prospect of getting a job” and he could not “recall” the companies he contacted previously.

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

CA-00065787-005

It was the Complainant’s evidence that he was not paid from 2020 to 2022. He accepted he was paid the minimum wage in the year prior to this dismissal. It was his evidence he was paid €169.50 for 15 hours per week.

It was the Complainant’s evidence that he sought a statement in June 2023 but did not receive a response.

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

CA-00065787-006

It was the Complainant’s evidence that he was due €26,442 in wages and €8,136 in annual leave payment for the period 01 January 2020 to 31 December 2022.

In cross examination the Complainant denied that the payment of €29,300 to correct payment issues with the Respondent in January 20220.  In response to the €40,000 paid in February 2021, it was the Complainant’s evidence that related to a separate matter, not wages.

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

CA-00065787-007

It was the Complainant’s evidence that he did not receive his annual leave allowance.

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

CA-00065787-008

It was the Complainant’s evidence he was not compensated for the loss of annual leave when his employment was terminated.

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

CA-00065787-009

It was the Complainant’s claim that he was not compensated for loss of public holidays. At the hearing it was his evidence on affirmation that he did not work public holidays, and his usual days of work were Tuesday and Wednesday.

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

CA-00065787-001

The Respondent produced a statement of employment dated 2014 but accepted that it may not have been sent to the Complainant where it was not signed by him.

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

CA-00065787-002

It was Mr Loughney’s evidence that the Complainant carried out works on a property from 2014 to 2019 and when that work ceased, he continued to work on a part time basis with the Respondent. He clarified at all times he worked for the Respondent reducing his days from two to one day a week.

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-00065787-003

It was the Respondent’s evidence that the Complainant did not carry out any driving for it. The evidence relating to delivering water related to a separate unrelated employer.

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

CA-00065787-004

It was the Mr Loughney’s evidence that he had a long-standing personal friendship with the Complainant and described their employment relationship as not the norm. It was his evidence that the Complainant stopped working for the Respondent in August 2023 and refused to engage with Mr Loughney. He made several attempts to meet with the Complainant, requesting that he attend the office, but this was refused. On 7 December 2023 he called to the Complainant’s house, but he refused to speak with him and closed the door on him. He advised him that he could not continue to employ him if he did not engage with him.

It was Mr Loughney’s evidence that the Complainant said he could not engage with him due to ongoing legal proceedings. 

When he returned to the office, he emailed the Complainant advising he was terminating his contract. Upon seeking advice, Mr Loughney sent a follow up letter in March 2024 offering redundancy, the option to retain vehicles and materials or the offer to meet and speak with him. The termination date of 31 March 2024 was the last day he was paid.

The next correspondence received was the Workplace Relations Commission Complaint Form.

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

CA-00065787-005

It was the Respondent‘s evidence that payslips were available from the accountant. It was his evidence there were payments made on 18 and 19 February 2021 in the sum of €40,000 but accepted this was not made through payroll. The purpose of this payment was to “clear the slate” on monies owed. A further sum of €29,300 was made in January 2023 to cover the period from 1 January 2020 to 4 January 2023. It was submitted these payments were in excess of the minimum wage. The Respondent did not present any documentary evidence to support the payments.

It was the Respondent’s evidence that the Complainant sought to regularise matters and in March 2023 he received €169.50 per week.

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

CA-00065787-006

The Respondent relied upon the submission that payments were made in February 2021, and January 2023 were in excess of the Complainant’s claim.

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

CA-00065787-007

It was the Respondent’s evidence that the Complainant was paid for 52 weeks of the year and was in charge of his own hours.

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

CA-00065787-008

Again, the Respondent relied upon the payment of the Complainant for 52 weeks a year and did not work from August 2023 – March 2024 despite being paid.

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

CA-00065787-009

It was the Respondent’s evidence that the Complainant was asked on one occasion during the June 2021 public holiday to lay concrete but failed to attend for work.

Preliminary Matter

The Complainant was asked about the delay in referring his complaints to the Workplace Relations Commission where there were complaints relating to 2019, 2020, 2021, 2022 and 2023. It was his reply that he was within time. The Respondent stated the complaints were statue barred.

The jurisdiction for referral of complaints to the Workplace Relations Commission is set out in 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.”

Where reasonable cause can be demonstrated this period can be extended up to a maximum of 12 months.

It is undisputed that the Complainant was dismissed from his employment on 31 March 2024 with the Complaint being received by the Workplace Relations Commission on 5 September 2024. The date of contravention to which each complaint relates differs and therefore, I will address each of the complaint individually below.

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

CA-00065787-001

The Complainant was dismissed on 31 March 2024 and therefore, this is the last date of contravention for the purposes of Section 41 (6) of the Workplace Relations Act 2015. Therefore, it is within time to be considered.

A copy of a contract of employment was furnished at the hearing. While it is accepted it is unsigned, Section 3 (1) of Terms of Employment (Information) Act 1994 requires that the terms and conditions of employment be furnished only to the employee. The Respondent did not provide evidence of when or how the statement was furnished to the Complainant.

Consequently, I find the complaint is well founded.

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

CA-00065787-002

Having considered the Complainant’s sworn evidence at the hearing that his role did not change. Consequently, I find the complaint is not well founded.

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-00065787-003

In the circumstance where this related to a period from 2019 to 2020 I find the complaint falls outside of the jurisdiction set out in Section 41 (6) of the Workplace Relations Act 2015 and it statue barred.

For this reason, I find the complaint is not well founded.

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

CA-00065787-004

The dismissal of the Complainant on 31 March 2024 was not in dispute between the parties.  I find the complaint falls with the jurisdiction of Section 41(6) of the Workplace Relations Act 2015 where the complaint was received on 5 September 2024 with the cognisable period from 6 March 2024 – 5 September 2024. 

The Unfair Dismissal Act 1977-2015 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“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.”

Section 6 (4) of the Unfair Dismissal Act 1977- 2015 sets out the grounds justifying the dismissal:

“(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia,

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) 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.”.

McMahon J. inKhan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

The principles of natural justice require that the disciplinary investigation, the decision to impose a sanction (in this case, dismissal), and any subsequent appeal be conducted independently and objectively. An employee is entitled to a fair and impartial determination of the issues under investigation, as outlined in the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) and established case law.

In this case, no disciplinary procedure was followed, nor were fair procedures applied.

It was the Respondent’s evidence that the Complainant simply failed to engage from August 2023 to March 2024. I do not accept this, as once the Complainant received the letter of 7 December 2023, there was correspondence between the parties. In his reply of December 2023, the Complainant raised issues concerning fair procedures. However, it is accepted that the Complainant was unable to outline what work he had carried out from August 2023 to the following March. Furthermore, it was not disputed that he continued to be paid during this period.

I find that the Respondent did make several attempts to constructively engage with the Complainant.

It is clear from the evidence of both parties that a personal dispute was ongoing, which had a direct impact on the employment relationship. Regardless of personal grievances, the Complainant was under a duty to fulfil his contract of employment, and his conduct did not assist his position.

However, this does not negate the requirement to apply fair procedures and to ensure that any sanction imposed is proportionate.

For these reasons, I find that the Complainant was unfairly dismissed.

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

CA-00065787-005

Both parties agreed that from March 2023, the Complainant’s payment were regularised, and he was paid an hourly wage. Furthermore, the Complainant’s evidence was clear he was paid the minimum wages for the 12 month period proceeding his dismissal.

For these reasons, I find the complaint falls outside the 6-month period provided for in Section 41 (6) and the complaint is not well founded. 

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

CA-00065787-006

For the same reasons set out above, where the complaint relates to payments for the period 2017 to 2020, I find the complaint falls outside the 6-month period provided for in Section 41 (6) and the complaint is not well founded. 

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

CA-00065787-007

It is not accepted that the Complainant was in charge of his own hours where Section 20 of the Organisation of Working Time Act 1997 places the obligation on the employer to ensure the employee avails of their annual leave entitlement. I find the based on a 15 hour working week over two days, the Complainant was entitled to an annual leave allowance of 8.24 days.

However, I find the complaint falls outside the 6-month period provided for in Section 41 (6) where it was found that from August 2023 to March 2024 he did not work and there was no evidence he was on certificated sick leave, I find that he did not accrue any annual leave within the cognisable period from 6 March 2024 – 5 September 2024. 

I find the complaint is not well founded. 

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

CA-00065787-008

It was the Complainant’s evidence that he was no compensated for loss of his annual leave upon termination of his employment.

Based on the above finding, I find the complaint is not well founded where he had not accrued annual leave within the cognisable period.

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

CA-00065787-009

The Complainant gave evidence at the hearing that he did not work public holidays, and that his normal working days were Tuesday and Wednesday. It was undisputed that the Complainant was paid during the cognisable period from 6 March 2024 until his employment terminated on 31 March 2024. Within this period, there was one public holiday, St Patrick’s Day.

For these reasons, I find that the complaint is not well founded.

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

CA-00065787-001

I find the complaint is well founded.

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

CA-00065787-002

I find that the complaint is not well founded.

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-00065787-003

I find that the complaint is not well founded.

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

CA-00065787-004

I find that the Complainant failed to adequately mitigate his loss, thereby falling short of the standard inSheehan v Continental Administration Co Ltd UD858/1999, which held that an employee must “employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.”

In addition to failure to mitigate his loss, I find the Complainant’s conduct in refusing to engage with his employer as a contributory factor in his dismissal.

Consequently, I find that the sum of two weeks renumeration of €339 as being just and equitable having regard to all of the circumstances.

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

CA-00065787-005

I find that the complaint is not well founded.

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

CA-00065787-006

I find that the complaint is not well founded.

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

CA-00065787-007

I find that the complaint is not well founded.

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

CA-00065787-008

I find that the complaint is not well founded.

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

CA-00065787-009

I find that the complaint is not well founded.