ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000952

Complains for Resolution:

Date of Adjudication Hearing: 01/03/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 7 of the Terms of Employment( Information) Act,1994, EU Communities Regulations 2012- SI, No 36/2012,Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991, 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.

Complainant’s Submission and Presentation:

The Complainant commenced work as a driver with the respondent transport company on 21 August, 2015. He is a Polish National. On commencement of employment, he was to receive €100 a day in wages or €9.10 for a 45 hr week   . He drove trucks in Europe for the respondent. His employment concluded when he realise that he wasn’t going to be paid properly by the respondent, in accordance with his agreement. The Complainant made four complaints to the WRC.

1 That he was denied a statement in writing on his terms of employment.

2 That he was not notified of the working hours regulations applying to the road transport sector.

3 That he did not receive his holiday pay.

4 That he was not paid for two trips to Spain, not paid in full for a trip to Poland or rest breaks during the course of his employment. He did not receive payment for a travel pass through Germany. That he did not receive pay slips.

The complainant saw the job of driver advertised on a polish web site. He was not informed of his rights. During the course of his 5 week employment record, he undertook two trips to Spain and one journey to Poland. He did seek a written copy of his terms of employment from the respondent and it was to be produced on his return from Poland at the end of August, but this did not occur.

He was owed €248 in holiday pay. He was owed €2,300 in unpaid wages for the three trips to Europe. He received€300 payment on 28 August and €800 payment on 14 September 2015. On 24^th September, 2015, the complainant received a text telling him that he was finish with the respondent when he got back to Ireland as there was a question of a pallet being in the wrong place. The complainant followed up on what he was owed and on November 3, 2015, with the assistance of the Citizens information centre, he sought from the respondent:

• A Contract of employment, Holiday pay and €2,300 in unpaid wages.

There was no response to this inquiry. The complainant told the hearing that on 27 February, 2016, he received a text assuring him that the respondent was intent on paying what was owed to him, but sought that he would not proceed with the hearing on March 1 at WRC. The Complainant did not trust this approach as he had sought his P45 on a multitude of occasions and even this simple document was denied to him. He believed this approach to be intimidatory.

The complainant submitted a hand printed copy of his work record in Ireland and Europe

1. Poland       21-25 August                       500 euro owed        300 euro paid     € 200 owed
2. Spain         29 August – 8 September       €1100 owed       €800 paid              €300 owed
3. Spain        12 Sept ----- 26 September   €1500 owed                                        €1500 owed

Toll                                                                                                                           €100 owed

Annual leave                                                                                                            €248 owed

Respondent’s Submission and Presentation:

No Attendance

Issues for Decision:

I am satisfied that the respondent was notified of the impending hearing on 3 February, 2016. I allowed time in advance of the hearing to facilitate the attendance of the respondent but there was no appearance from the respondent or no follow up contact with the WRC.

The Complainant gave his evidence with the assistance of an Interpreter. I am satisfied that the respondent was on notice of the claims against him.

1 Terms of Employment (Information Act), 1994

Provides in Section 3(1)” An Employer shall not later than 2 months after the commencement of an employees employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employees employment (a ) to (m)”

Section 3(2) provides that the statement must be given irrespective of the fact that the employment ceased prior to the end of the 8 week period referred to in 3(1)

Section 3(5) provides that this document must be retained for a year by the Employer.

I accept that the complainant was not furnished with the requirements pertaining to Section 3 of the Act within the statutory time frame.

2 EU Communities Regulations 2012 S.I 36/2012

These regulations set out the obligations of the respondent with regard to Sections 5,8,10, 11, 12. The complainant did not advance evidence at the hearing in relation to this claim outside a confirmation that he had a recollection of being shown a document on breaks around 29 August 2015 8^th September, 2015 .

3 Organisation of Working Time Act 1997

I heard the complainant’s evidence that he did not receive any annual leave during or at the cessation of the contract. As the burden of proof with regard to records rests with the respondent under the Act. I find that the complainant is entitled to succeed in this claim .

4 Payment of Wages Act 1991

Section 1 of the Act provides that a contract may be in oral or written form . Wages are referred to as earnings during the employment and on cessation in lieu of notice . Wages do not provide for expenses” incurred in carrying out the employment “

Section 4 provides for the obligation of the employer to provide a statement of wages and deductions made to the employees . This was not given to the complainant in this case .

Section 5 prohibits any deduction from a workers wages save on a statutory , contractual or consent basis .

I am satisfied that the complainant understood that he had an agreement with the respondent for payment of 100 euro per day. In the absence of pay slips or P45, I sought further confirmation from the complainant on what monies he had in fact received from the respondent . I suggested that I could analyse his bank records in a redacted form to cover the lodgements by the respondent governing the 5 week period of employment . The complainant agreed to submit these .

I have not received these records . While, I am troubled by the reports of intimidation from the complainant , I believe that my request for an objective record of income received by the complainant from the respondent was reasonable and I have difficulty in advancing towards a decision in regard to this aspect of the claim without them .

Decision:

Section 41(4) 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 .

Section3 of the Terms of Employment Act ,1994 .requires that I make a decision in relation to the claim for a written contract of employment consisting of a grant of redress in accordance with section 7 Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

Regulation 18 of the EU Communities Regulations 2012 S.I 36/2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under S.S 5, 8,10,11,12.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 4 and 5 of that Act.

Decision:

1 I find that the complaint on the absence of a statement of terms of employment was well founded and I order the respondent to pay the complainant compensation of 2 weeks remuneration amounting to:

39 hrs x €9.10 x2= € 709.80

2 I find that the complaint on holiday pay to be well founded and I order the respondent to pay the complainant the sum of € 248 owed.

3 I find that this complaint was not well founded as there was insufficient evidence adduced at the hearing.

4 I accept that the complainant undertook the work as described for the respondent but I am not satisfied that the records submitted at the hearing constituted robust proof to ground the claim on unpaid wages. I gave the complainant a 7 week period to furnish some redacted bank records or any other supporting documentation. I did not receive any supplementary documentation.

I accept that pay slips were not provided and I accept that the two trips, where part payment was reported are well founded for the purposes of the Act. I order the respondent to pay the complainant €500 in respect of the underpayment in this regard.

I cannot award the 100 euro claimed for the toll as that is covered by the description of “expenses”

In conclusion, the total award made in the complainants favour stands at €1,457.80.

Patsy Doyle   Adjudicator

Dated:   24^th May 2016