ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055195
Parties:
| Complainant | Respondent |
Parties | David Hogan | Moovmor Engineering Ltd |
Representatives | Killian McGovern BL Barry Crushell Theodora Ciutz Crushell & Co Solicitors | Peter Dunlea Peninsula Business Services Ireland |
Complaints:
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-00067254-001 | 08/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00067254-002 | 08/11/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00067254-003 | 08/11/2024 |
Date of Adjudication Hearing: 24/02/2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 an employee can present a complaint or complaints of any perceived contravention by the Employer of any of the Acts (Statutes) contained in Schedule 5 of the Workplace Relations Act of 2015. Any such complaint (usually presented in the format of a workplace relations complaint form) is made to the Director General of the WRC. The said Director General can then refer the complaint to the Adjudication services. It is in these circumstances that this matter has come before me - an Adjudication Officer engaged by the Adjudication division of the WRC - to make all relevant inquiries into the complaint or complaints made. Where appropriate, I hear the parties’ oral evidence, and I can give consideration to any supporting evidence provided by witnesses or relevant documentation.
In this instance, the Complainant has made three separate complaints of the Employer having contravened Acts contained in Schedule 5 above referred to.
The Complainant herein has referred two matters for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
The Act also provides that an employer must notify the Employee of any changes in the particulars already detailed in the Statement of Terms. This is set out in Section 5 of the Terms of Employment (Information) Act 1994 which puts the onus on an employer to notify the employee in writing of the nature and date of change in any of the particulars of the statement as provided by the Employer. The obligation does not extend to a change occurring in provision of statutes and instruments made under statute.
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, or
(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
In addition to the foregoing, the Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is also an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented, the Director General is empowered to refer that complaint forward for adjudication to the Adjudication Officer aforesaid.
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage. Section 5 of the Payment of Wages Act provides that an employer must pay wages that are properly payable to an employee. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
It should be noted that a non-payment of wages that are properly payable on a given occasion shall be treated as a deduction made by the employer from the wages of the employee on that occasion (per Section 5(6)).
By way of preliminary observation, I am satisfied that a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 8th of November 2024 initially gives rise to a cognisable period starting from the 9th of May 2024 to the 8th of November 2024.
Background:
This matter was heard over the course of two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. This was expressly permitted in circumstances where the Industrial Relations issue was withdrawn. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 8th of November 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date. |
Summary of Complainant’s Case:
The Complainant had full legal representation at the hearing. When it came time to hear the Complainant’s evidence, the Complainant agreed to swear an make an Affirmation to tell the truth. The Complainant brought a number of witnesses to provide evidence in support of his/her case. The Complainant set out a personal statement on the 19th of May as follows: 1. Confirmation of Employment Details 1.1. Unilateral Changes to Terms and Conditions of Employment 1.1.1. Although I did receive a copy of a contract of employment, my employer has informed me since then, through the redundancy process, that my terms and conditions were amended. I have never received any notification of those changes and I never consented to those changed. 1.2. Fraudulent Contract of Employment 1.2.1. I looked for redundancy in late 2023 and was told to leave it with him and he would come back to me. A few months later I asked him again and he said he was still working on it. I asked him 3 to 4 times. Eventually the girl from HR told me they have tried every avenue, but they cannot give me redundancy because my job is there, but she said I would get a small gratuity when I did leave. My intention was to finish the following year. I said I would stay on for 10 or 11 months until they got somebody to replace me if I got redundancy. He said he couldn’t give it to me. 1.2.2. On 11 November we had an argument, and I said, I asked you to do one thing for me over the years and you couldn’t do it for me. He said to me that he tried but couldn’t do it, end of story. Another thing I said was I never got on to him about my working hours. He took a paid break off me over the last 15/16 years which he hasn’t paid me for. He said he pays me for the hours I work, end of story. I said I had a contract and would be please go in and get it. He went into the office and five minutes later he was in his car and gone for the day. 1.2.3. I waited until Monday morning when I went in. He wasn’t there. I asked Siobhan, in HR, for a copy of my original contract. She said no problem, I’ll look after that. She came out and gave me a sealed envelope. When I opened it, I couldn’t believe it. I raced in to see what was happening. The girls were all gone. Derek arrived back and he asked me what’s wrong with me. I said, what are you trying to do to me. I looked for a copy of my original contract of employment and you give me this, a fraudulent document stating something to do with my name signing, I don’t know what it’s about. It’s one single piece of paper and then two sheets of paper with an amended contract terms and no signed document, no signature on it at all. I don’t know what you’re trying to do but I’m going to give this to my solicitor. 1.3. Pay Dispute 1.3.1. I’m working 40 hours a week but I’m getting paid 1.7 hours a week less because I’m not being paid for my 20-minute break which is stated in my original contract which I never changed. I am looking for hours owed to me over the last 15 years when Derek himself changed the contract. All the other boys extended their 45 hours, I refused to do so. I told him that, I said I wasn’t doing it, I had a contract, I’m keeping it. I was provided with a comprehensive submission dated the 21st of May 2025. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent Representative. The Complainant alleges that he was owed wages arising out of a change to the hours payable in his Contract of Employment which change he says he never agreed to. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a reasonable cause of action or that there appears to have been a contravention of a Statute or Statutes. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent was represented by Peninsula Business Services Ireland. Oral evidence was provided by the Managing Director Derek Boyce. The Respondent provided me with a written submissions dated the 21st of May 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witness was cross examined by the Complainant representative. The Respondent rejects that there has been anu contravention of Statute and has asserted that the Complainant is, in any event, out of time. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced over the course of two days. The Complainant commenced his employment with the family-run Respondent company in and about 1988. The parties agree that when the Complainant first started working there the breaks including lunch breaks were paid time and included as part of the working week. It is asserted that this changed in and around 2004 thought the Complainant doe not agree with this. What seems to be accepted is that in 2012 and following a NERA inspection the Respondent company was obliged to prepare Contracts of Employment for all it’s staff. This was an exercise which was well overdue it seems. The “2012 Contracts” undoubtedly set out the up-to-date position concerning whether breaks would be considered paid time or unpaid time. The Respondent says that the Contracts drafted at this time simply reflected what had been workplace practise since 2004 and the Contracts reflected the fact that lunch breaks and small breaks were unpaid time. The Respondent says that this had been introduced in 2004 along with a change to rates of pay and different working hours. The Company needed to cost cut and it was at that time that the paid breaks came into focus at this time. The Respondent agrees that the Complainant was never happy with the changes, and the outcome (even back in 2004) seems to have been an acceptance under protest. It was in these circumstances that the Complainant refused to sign the Contract of Employment with which he was provided in and around 2012. As it happens a further round of updates meant that the Complainant was provide with a Contract of Employment in 2017 which he, again, refused to sign. There is s no material change between the Contracts (2012 and 2017) on the issue of unpaid breaks. The Complainant agreed in evidence that he knew that he was being paid less and that this was because he was no longer being paid for his breaks (lunch and tea break) which in at the start of his employment amounted somewhere between three to four hours a week. He says he never agreed to this change. I have sympathy for the Complainant who was a loyal employee for an extraordinary number of years in circumstances where his personal life was overshadowed by the illness of a beloved wife. However, the Respondent is not a bad employer and changes made to the working conditions were made so very long ago that I cannot presume to interfere at this stage. The Complainant knew as far back as 2004 that the employer was moving away from paid breaks and whilst he may not have liked it, it was woven into the company terms and conditions and formally spelt out in the Contracts provided in 2012 and 2017. The Complainant’s failure to sign those contacts are neither here nor there as the Complainant was on notice and his cause of action – if there was ever a cause for complaint it accrued well before the one accrued on different dates well before the 8th of November 2024 which is the cognizable period that I am obliged to look at. I note that the parties did shake hands over the manner of the end of the employment and I hope this gesture helps with bothy sides moving forward. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00067254-001 - The complaint herein is not well-founded and is out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, CA-00067254-002 - The complaint herein is not well-founded and is out of time.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00067254-003 - The complaint herein is not well-founded and is out of time.
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Dated: 30th March 2026.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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