ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000719

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 25/01/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submitted in evidence that he had been employed by the respondent as an apprentice plumber from 31 August 2015 until the 30^th October 2015.  He was never given a written contract of employment nor did he receive any payslips during his period of employment.  He was paid weekly in arrears, by EFT to his bank account.  His net weekly pay amounted to €220.12.

On 29 October the complainant worked the morning as normal but attended for interview with Solus, about an apprenticeship scheme. The respondent was aware that the complainant was to attend this interview. 

On the morning of 30 October the complainant received a text message from the respondent which read, "Morning name. There's not much going on next week I'm waiting for confirmation on a couple of jobs so I have nothing for you.  I'll keep you posted if anything comes in.  Wages will be paid for back week and all that. Thanks name."

I was shown a text message by the complainant as above. In response to this text message the complainant texted the respondent enquiring about overtime pay that he was due.  The respondent, in reply text message, told the complainant to go to the office and submit his overtime sheets.  A sample overtime sheet was admitted.  The complainant estimates that he was due 12 hours in overtime.  He was also due €220.12 in basic pay, his weekly pay in arrears.

Payment was not forthcoming. The complainant phoned the office several times but his calls were not answered.  Eventually he decided to file a complaint with the WRC.

Respondent’s Submission and Presentation:

The respondent was not present and no written submission was available.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Was the complainant an employee of the respondent?

Were the deductions of €202.12 basic pay and 12 hours overtime pay legal deductions?

Legislation involved and requirements of legislation:

Definitions of contract of employment and employee are important in this case.

The Act defines a contract of employment as:

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

The Act defines an employee as:

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014)], a harbour authority, a health board or [a member of staff of an education and training board shall be deemed to be an employee employed by the authority or board, as the case may be;

The Act defines an employer as:

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Although the complainant did not produce written evidence of a contract of employment, from the evidence submitted, I believe the complainant was an employee of and had a contract of employment with the named respondent.

Section 5 of the Act deals with the regulation of certain deductions made and payments received by employers. Section 5 (6) considers the situation when an employee has been underpaid or not paid at all:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Based on information and evidence available to me I believe that the deduction of the complainant's basic weekly pay (net €220.12) and his 12 hours overtime were illegal deductions.

Decision:

I am satisfied from the evidence put before me that this complaint is well founded. I direct that the respondent pay the complainant €220.12 in respect of his outstanding basic pay and an amount of €132 in respect of the unpaid overtime (€220/40 = €5.50 per hour x 2 [double time] x 12 = €132).

Dated:   2 March 2016