ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000610

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00000078-001	05/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001757-001	05/10/2015

At: Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 20/04/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and Section 6 of the Payment of Wages Act, 1991 – 2015 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints..

The Complainant was employed from 4^th October 2014 until the Complainant terminated his employment on 5^th January 2016. The Complainant was paid €10.50 an hour, he worked 40 hours a week and was paid monthly. The Complainant stated he was not provided with a written statement of his terms and conditions of employment nor was he provided with the Grievance and Disciplinary Procedures of the Company.

The Complainant referred a complaint to the Workplace Relations Commission on 5^th October 2015 alleging his Employer had breached the Payment of Wages Act in that the Employer owed him wages.

The Complainant referred a complaint to the Workplace Relations Commission on 5^th January 2016 under the Payment of Wages Act, 1991 in relation to payment of wages due, annual leave and payment of minimum notice. He also referred a complaint under the Unfair Dismissals Act, 1977 on the same date alleging unfair dismissal by reason of constructive dismissal.

Complainant’s Submission and Presentation:

The employer promised to pay on the last working day of the following month (example : April's salary was supposed to be paid at the end of May and etc... Which is already quiet late). But current employer has NEVER paid me in full and never on-time, so during the last few months he already owns me €4599.12 and that doesn't include September's salary of approximately €1900.00 Completely ignores my phone texts, only once back in March he replied that towards the end of the year should be better?? Also the total Worked hours for month of July was Incorrect, so I have advised him to fix, accountancy promised to fix but even made it further incorrect in August 2015, so the total is 16.5 hours short (€173.25) even from the last two payslips. I have sent email to let him know I will lodge this complaint if he doesn't pay me in full before the end of September 2015. The business is here, constantly busy and working hard. All I wish only is my own money. Please help

The Employer is no longer paying me wages, he ignores my texts or email, he did not yet issue my payslip for December 2015 even though I worked full time including overtime, for the month of October and November the payslips total hours were incorrect (less 23hours, because the employer refuses to calculate the Correct working hours including travel times between the various sites which according to labour law is incorrect) when referred back to the payroll they said they followed the timesheet (there is no time-sheet where I have signed or clocked in), employer have stolen my entitled Annual Leave days. At the date of commencement (4th December 2014) he clearly promised 30% for the overtime, however this was never a case, he have never issued or signed employment contract. At the moment I am completely broke, stressed and under the anti-depressant medication on the sick-leave, because of this long term ignorance and feeling used up, because I sincerely worked over 200 hours each month under the Rain, Wind, Storms, cold and freeze sometimes. There was another complaint already at the process in relation to delayed and irregular pay. Ref CA-00000078. I will really .I Appreciate your help and full assistance because I am so depressed, have not even a penny...

PAYMENT OF WAGES ACT, 1991 – 2015

The Complainant provided the Adjudicator with payslips, Bank Statements and a spreadsheet of actual hours worked for the duration of his employment. The Complainant stated that he was paid one month in arrears. I have examined in detail the evidence provided by the Complainant and I find as follows:-

Payment of Wages Act, 1991 – 2015. The first complaint was lodged with the Workplace Relations Commission on 5^th October 2015 therefore the period covered by this complaint is from 6^th April 2015 to 5^th October 2015. The second complaint was lodged with the Workplace Relations Commission on 5^th January 2016, therefore the period covered by this complaint is from 6^th October 2015 to the termination of the employment on 5^th January 2016. I have calculated the Complainant was not paid for the following hours worked in the reference period –

July 2015 7 hours

August 2015 7.5 hours

September 2015 Nil

October 2015 6.75 hours

November 2015 8.5 hours

December 2015 9.75 hours

A Total of 39.5 hours not paid x 10.50 an hour = €414.75

Annual Leave. The Complainant is claiming payment for 2 days annual leave due on termination of the employment. 16 hours x €10.50 an hour = €168.00 annual leave due and not paid on termination of the employment.

Public Holidays. The Complainant stated that he did not work on Public Holidays but never received payment for any Public Holiday during the course of his employment. He is claiming payment for 12 Public Holidays over the course of the employment. The period covered by this complaint under Section 6 (4) of the Act is from 6^th April 2015 to 5^th January 2016. He is entitled to payment for 7 Public Holidays in the reference period covered by this complaint. The Complainant is entitled to payment of 56 hours x €10.50 an hour = €588.00

Minimum Notice. The Complainant is claiming payment of Minimum Notice of one week. However it was the Complainant who tendered his resignation from the employment. Therefore in accordance with Section 8 of the Minimum Notice and Terms of Employment Act, 1973 the Complainant is not entitled to payment of Minimum Notice.

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 – 2015 I declare the complaint is well founded in part. I order the Respondent to pay the Complainant –

€414.75 in respect of wages due and not paid

€168.00 in respect of annual leave due and not paid on termination of the employment and

€588.00 in respect of Public Holidays due and not paid in the reference period of this complaint.

I order the Respondent to pay the Complainant the total sum of €1170.75, subject to any lawful deductions within 42 days of the date of this Decision.

UNFAIR DISMISSALS ACTS 1997 - 2015.

The Complainant stated that due to the non-payment of wages due to him over the course of his employment he had no option but to resign from his position with the Respondent. He stated that he had sent emails to his employer concerning the shortages in his monthly wages. He stated that on each occasion he raised this he was promised payment but this never materialised and the evidence was his Bank Statements which he provided to the Hearing.

The Complainant stated that he had not worked since he tendered his resignation and was in receipt of Jobseekers Benefit from the Department of Social Protection.

The Complainant was requested to forward a statement from the Department confirming his claim for Job Seekers but he did not do so.

Section 1(1) of the Act defines what is commonly construed as “constructive dismissal”. This provides as follows; (b) 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”.

There are essentially two tests than an employee can argue in a complaint of constructive dismissal – (1) There must be a significant breach of the contract of employment by the employer or (2) The Complainant must have acted reasonably in tendering his resignation.

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Act 1997 – 2015 I declare the complaint of unfair dismissal is well founded. However I was not provided with the evidence from the Department of Social Protection to enable me to quantify the loss of earnings suffered by the Complainant. I order the Respondent to pay the Complainant compensation of €2000.00 within 42 days of the date of this Decision.

Date: 04/07/2016