PW376/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                               CASE NO.

Mireks Masonry       -        Claimant                                                            PW376/2012

against the decision of the Rights Commissioner in the case of:

Dariusz Zieminski,      -          Respondent

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. N. O’Carroll Kelly BL

Members:     Mr. F. Cunneen

                     Mr. J. Maher

heard this appeal at Dublin on 8^th April 2014

Representation:

Appellant:       Ciaran Haran, Solicitor, Branigan Berkery, 29, Laurence Street, Drogheda,

Co. Louth

Respondent:    In Person

The decision of the Tribunal was as follows:-

This appeal came before the Tribunal by way of an employer (the appellant) appealing against the decision of the Rights Commissioner reference no r-116076-pw11/RG.

Background:

The respondent (employee) was employed as a stone mason commencing employment on the 21^st February 2011 on a wage of €28.00 per metre payable on a fortnightly basis in arrears. The respondent signed his contract of employment on the 21^st February 2011. Business declined and all employees were given an RP9 form. The respondent was issued an RP9 form on the 8^th May 2011.

The respondent lodged a payment of wages claim before the Rights Commissioner for the non payment of wages and annual leave. The appellant did not attend the hearing. The respondent was awarded the sum of €4,970.00. The appellant appealed the decision of the Rights Commissioner to the Employment Appeals Tribunal.

Appellant’s Position:

The owner of the appellant company gave evidence. He informed the Tribunal he had been unable to attend the Rights Commissioner hearing due to personal family reasons. The respondent stated that due to a downturn in business all employees were issued RP9 forms on the 8^th May 2011. The respondent, in this case, had not been employed after this date and therefore the award of €4,790.00 from the Rights Commissioner was incorrect.

Respondent’s Position:

The respondent gave evidence. He stated that he had not received the RP9 form. He had continued working until June 2011 but was not paid for seven weeks work and some public holidays. When asked, on two occasions, the location of the work he carried out during this period of non-payment of wages he answered with two different locations. He also told the Tribunal that his rate of pay had been decreased early on in his employment to €25.00 per meter.

Determination:

The Tribunal has carefully considered the sworn evidence adduced and paperwork submitted in this matter. On the balance of probabilities the Tribunal prefers the evidence of the appellant.

Accordingly the Tribunal upsets the Rights Commissioners decision under the Payment of Wages Act, 1991.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)