Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013940-001

14/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013940-002

14/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013940-003

14/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013940-004

14/09/2017

The Complainant was engaged by the Respondent as an industrial cleaner from 18th April 2016 until 30th May 2017. His contract of employment stipulates that he was employed “on a casual basis”. The Complainant was paid an average weekly wage of €402 gross and worked on average 40 hours. The Complainant contends that he was unfairly dismissed and is seeking compensation in that regard. He also claims that he did not receive his statutory notice entitlement and that the Respondent did not pay him his contracted rate for overtime. He also brought a claim under the Industrial Relations Act, 1969 in respect of the alleged failure of the Respondent to observe his contractual entitlements to overtime payments. The Respondent refutes the claims in full.

The Respondent disputes the fact of dismissal. The Respondent contends that no dismissal took place but rather the Complainant resigned his position on 30th May 2017. The Respondent submits that the Complainant emailed Site Manager, Ms R to request unpaid leave in order to allow him to travel to his home country. In his email the Complainant stated that he didn’t know “exactly how long it will take but I should be back to work around the 21 May”. He also committed to informing his supervisor if anything changed with regards to this. On the same day Ms R responded to this request outlining that during his extended absence she would be obliged to cover his position and hours at the site and as such could not guarantee his position when he returned. This was in line with the nature of contract and position clause in the contract of employment which states: “You will be employed on a casual basis. This means that you will not be provided with any set hours of work, but you will be contacted where a requirement for labour arises that may not be met by the current human resources of the organisation. You will be given at least 24 hours’ notice of any request to attend work. If you are not available to work the requested hours, these will be offered to another casual worker. Inability to meet this request does not preclude you from being offered work the next time it becomes available.”On 17th May 2017, the Complainant emailed Ms R outlining that he needed to extend his unpaid leave and that he wasn’t sure “how long it would take”. Ms R responded again outlining that she could not guarantee him a position i.e. hours of work on his return as she had no alternative but to hire someone else to cover his hour sat the site during his absence. On 26th May 2017 the Complainant emailed Ms R outlining that he was returning on the next day and that he was available for work from 29th May 2017. On 30th May 2017 Ms R responded outlining that unfortunately at this present time there was no position/hours available for him. She went on to state that if a position/ hours became available in the future the Respondent would definitely keep him in mind and contact him to offer him these hours. It was further stated that if he required a reference for future work the Respondent would be happy to provide this. The Respondent notes that due to the casual nature of his contract the Complainant was not precluded from double-jobbing. On 30th May the Complainant emailed Ms R requesting a reference and P45 as soon as possible. On 7th June 2017 Ms K, SIPTU emailed Ms R stating that the Respondent terminated the Complainant’s contract of employment on 30th May 2017 and requesting an immediate meeting to discuss same. On 12th June 2017 the Respondent’s Wage Administrator, Ms H emailed the Complainant attaching his P45 and outlining the following:

(i)                  The Complainant emailed the Respondent to request his P45, this request led the Respondent to believe that he was terminating his casual contract of employment.

(ii)                Upon returning from his home country there wasn’t work available immediately in the Complainant’s site and the Respondent couldn’t offer work in any other site as there was no business need.

(iii)               This did not mean that this would remain the case, and if work had arisen in the future it would have been offered to him.

On 13th June 2017 Ms K, SIPTU emailed Ms H noting that the Complainant “requested his P45 for Social Welfare purposes only and not for the purpose to terminate his employment”. On 14th June 2017 Ms H replied to Ms K, SIPTU outlining that due to the fact that the Complainant had made no reference to Social Welfare in his previous correspondence when he requested a reference it led the Respondent to believe that he was resigning his position. On 13th June 2017 Ms H wrote to the Complainant outlining that it was the Respondent’s belief that he had resigned his position by virtue of the fact that he requested a written reference and his P45. It was further outlined that the nature of his contract meant that hours of work are offered when the company had a need for them. A termination is not deemed to have occurred when hours of work are not offered in any given week as the need could, and often does, arise in the future. This letter was sent to the Complainant by registered post. However, it was returned to the Respondent. On 16th June 207 Ms H wrote to the Complainant seeking written clarification, within 3 days, as to whether or not it was his intention to resign his position. The letter stated: “once we get written confirmation, from you personally, that you would like to return to [the Respondent] …we will endeavour to organise a casual position within [the Respondent] as per your contract of employment”. The Complainant failed to respond. This letter along with the correspondence dated 13th June were both emailed to the Complainant. On 21st June 207 Ms H again wrote to the Complainant seeking clarification. He was given further 3 days to respond. The Complainant failed to respond. On 22nd June the Respondent’s HR Consultant, Mr B emailed Ms K, SIPTU outlining that multiple attempts had been made to make contact with the Complainant. A copy of the correspondence of 21st June 2017 was attached to that email. The Respondent did not receive any response in this regard. The Complainant then proceeded to lodge a claim with the WRC on 14th September 2017. The Respondent quotes Mary Redmond (pg. 391) “Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to concluded the employee has resigned”. It is the Respondent’s belief that the words used by the Complainant in his email of 30th May 2017 are unambiguous. A P45 is a Particulars of Employee Leaving as stated on the form itself. It is very clear that by requesting both a reference and a P45 that the Complainant resigned his position with immediate effect. This resignation was understood and accepted by the Respondent. The Respondent notes that “a resignation should not be taken at face value where in circumstance there were heated exchanges or where the employee was unwell at the time” (M. Redmond, pg. 392). It is very clear that in this situation there were no heated exchanges between the parties and the Respondent and the Complainant were well at the time. It should therefore be concluded that the Complainant did in fact resign his position, willingly, with the Respondent. Notwithstanding the above, if it is the case that where it is established that ambiguous words of dismissal or resignation are found to have been used, which the Respondent submits is not the case here, the courts tend to apply an objective test as to their meaning. This requires careful consideration of how words would have been understood by a reasonable listener. There is an onus on the employee to establish with his employer whether he was dismissed or not. It is the Respondent’s position that no dismissal took place.

The Respondent relies on O’Leary v Cranehire Ltd. UD 167/1979, Balizi v Simro t/a Wrights of Howth UD 995/2008, Walsh v Sweeney UD 751/1991.

SIPTU, on behalf of the Complainant firstly refers to the Complainant’s contract of employment and the provision quoted by the Respondent in regard to the casual basis of his employment. The Complainant submits that these provisions are in stark contrast to the actual working arrangements that the Complainant was required to engage in. Since the commencement of his employment the Complainant was rostered to work a 40-hour week every week and in addition he would have worked regular overtime as part of his normal duties. In effect, the regular pattern of the Complainant’s work during the currency of his employment rendered the casual provision of his contract as being null and void. In addition, despite the casual provision set out in his contract, the Complainant was contractually bound not to engage in any other form of work without the express permission of the Respondent.

In relation to the unfair dismissal claim, the Complainant submits that on 9th May 2017 he requested the facility of unpaid leave to travel to his home country to care for his mother who was extremely ill. This request was granted. On 17th May 2017 the Complainant emailed Ms R to advise that he needed some further time in his home country. Ms R responded advising that the company had hired another employee to cover his position. In addition, Ms R advised that his current contract was due to expire at the end of the month. However, the current applicable contract at that time was not one of a fixed term nature and did not identify a cessation date. On 26th May 2017 the Complainant emailed Ms R to confirm that he is now back in the country and would be available to resume work on the following Monday. Ms R responded on the basis that the company no longer had a position for him to return to. Given the position articulated by the Respondent on 30th May 2017 the Complainant sought a copy of his P45 as he would require some for social welfare purposes. Ms R confirmed that a copy of same would be processed. On 7th June 2017 SIPTU wrote to the Respondent seeking a meeting /appeal in respect of the termination of the Complainant employment. In response the Respondent emailed the Complainant on 12th June 2017 advising him that as a result of seeking his P45 and his casual contract that he had ended the employment relationship. SIPTU responded on 13th June 2017 to confirm that the request for P45 was for social welfare purposes and not as a means of terminating his own employment. The Respondent replied on the basis that he had not identified that the P45 was for social welfare and that given that he was looking for a reference indicated that he was seeking alternative employment. The final response issued by SIPTU dated 14th June 2017 confirmed that the question of a reference was initiated by the Respondent and that given the Respondent had not responded to a request for a meeting that the issues involved would be referred. The Complainant received a further email dated 21st June 2017 with an attached incorrectly addressed letter which offered him the possibility of returning to the Respondent on a casual contract. He subsequently discovered that two further letters dated 13th June and 16th June 2017 had been sent to his previous residence. The Complainant had previously confirmed to the Respondent that he was changing address. Given that by the time he received the letter of the 21st June the Complainant had been successful in securing new employment he decided to let SIPTU continue with the referral process. The Respondent’s position is that the Complainant terminated his employment on 30th May 2017 by seeking a copy of his P45. The Complainant submits that he had no other option but to seek this document given the clearly stated position articulated by the Respondent that they had filled his position while he was on an agreed leave of absence. The Respondent further rely on a “casual” clause in the contract which could be best described as being written in a blatantly cynical fashion for the sole purpose of avoiding the provisions of protective legislation such as the Unfair Dismissals Act. The cessation date on the P45 indicates that the employment relationship ceased on 8th May 2017. It is the Complainant’s contention that he was dismissed by the Respondent and that the dismissal must be considered to be unfair.

For the purposes of this complaint, I am satisfied that the Complainant was an employee of the Respondent and had the requisite twelve months’ service under Section 2 of the Unfair Dismissals Act 1977 for the purposes of bringing a claim of unfair dismissal. For a claim of unfair dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977, an employee has to have been ‘dismissed’ within the meaning of Section 1. The Complainant employment came to an end on 30th May 2017. It is in dispute whether he resigned or was dismissed by the Respondent. The Complainant contends that he was dismissed unfairly. The Respondent contends that the Complainant was not dismissed at all and that he resigned from his position.

Both sides have given evidence concerning the events that led to the cessation of the Complainant’s employment.

There is no dispute that the Complainant had been assigned to work at a particular site prior to the unpaid leave. On 9th May 2017 the Complainant requested by way of email an unpaid leave to go to his home country to care for his ill mother until 21st May. The Respondent acknowledged the email “requesting unpaid leave until May 21st (approx)” and informed the Complainant that they “cannot guarantee that we will have a position for you on your return” (email of 9th May 2017). On 17th May 2017 the Responded informed the Complainant that they “had no option but to hire another employee to cover your absence especially as you did not have any return date specified”. I note that the original request for unpaid leave was until approximately 21st May 2017. However, on 17th May the Respondent informed the Complainant that it had already employed another person to cover his absence as he “did not have any return date specified”, which is clearly incorrect as prior to 17th May 2017 the Respondent could not have known that the Complainant would request further unpaid leave. Following the Complainant’s return, on 30th May 2017 the Respondent informed him that “Unfortunately at this present time we do not have a position for you here in [the site name]”, andthat it had “no option but to replace you in your absence as you could not guarantee us any return date”. The email goes on to say “If in the future we do have any suitable vacancies in [the Respondent] we will definitely keep you in mind and we will contact you. Alternatively if you require any references for future work we will be happy to provide these for you.” The Respondent argues that the Complainant’s status is that of a casual employee and therefore, it was not under an obligation to offer the Complainant any hours. The Respondent argues further that when the hours of work could not be offered to the Complainant immediately, the Complainant resigned his position.

I note the reference to the expiration date of the Complainant’s contract in Parties’ correspondence dated 17th May 2017. However, it was agreed at the hearing that the Complainant’s contract did not in fact include such a date and therefore could not be regarded as a fixed-term contract.

The Labour Court in Irish Museum of Modern Art v Joe Stanley [2014] ELR 253 found as follows: “The term “casual” or “casual worker” is a colloquial expression which is commonly used in an employment context. It connotes an employee who works as and when required in order to augment the work undertaken by regular or full-time employees. It normally involves a pattern of engagement characterised by breaks or periods of inactivity during which the worker's services are not required. It is a form of employment that is now commonly referred to as atypical.” It was not disputed that the Complainant, from the start of his employment worked approximately 40 hours a week. The Respondent provided details of his hours of work for the period from week 42 of 2016 to week 20 of 2017 and its calculations that the Complainant worked on average 45.63 hours a week during that period. The history of the Complainant’s working pattern in the instant case indicates therefore a full time continuing employment relationship. Unwittingly or not the Respondent allowed for the casual type of arrangement to transform into a full time permanent one. Leaving the type of the employment relationship aside, I find that the Respondent correspondence does not refer to unavailability of hours or work at the time. Rather the Respondent clearly states that it has no “position” for the Complainant and should “any suitable vacancies” arise in the future it will keep the Complainant in mind. The Respondent goes on to say that it will be happy to provide references to the Complainant should he require any. It is my considered opinion that it was reasonable for the Complainant to interpret the correspondence as effectively dismissing him.

Taking the above into consideration, I am satisfied that the Complainant was dismissed within the meaning of Section 1(a) of the Unfair Dismissals Act 1977 which defines dismissal as “the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”.

Having found that the Complainant was dismissed within the meaning of the Act, I must consider whether his dismissal was unfair. Section 6 of the Unfair Dismissals Act 1977 places the onus/burden of proving that a dismissal was not unfair on the employer and Section 6(1) provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” In relation to the burden/onus of proof, Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” As the Respondent has not provided any evidence to show substantial grounds justifying the Complainant’s dismissal, I find that it has not discharged the requisite onus/burden of proof of showing that the dismissal was fair and must conclude that the Complainant was unfairly dismissed. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) sets out the factors to be considered when determining the level of compensation and of most relevance to this case are the measures adopted to mitigate losses. In the absence of a contract confirming normal working hours, Regulation 11 of S.I. No. 287/1977 – Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 applies for the purposes of calculating weekly remuneration, requiring an average remuneration for the year prior to dismissal.

Based upon his evidence and documentation furnished, I conclude that the Complainant made limited efforts to mitigate his losses. The Complainant also gave contradictory evidence during the hearing in relation to the financial loss incurred and his efforts to mitigate the loss. He first stated that he did not secure new employment until 9th July 2017. He later stated that he did not reply to the Respondent’s correspondence of June 2016 because “he was busy working”. He subsequently confirmed at the hearing that he took up new employment at some stage in June 2017. Post-hearing SIPTU on behalf of the Complainant furnished evidence confirming that he commenced his new employment on 12th June 2017, some 12 days after the dismissal.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 and conclude that the Complainant was unfairly dismissed by the Respondent. I consider an award of €402 (1 week) as being just and equitable having regard to all the circumstances. The Respondent is therefore ordered to pay the Complainant a total of €402 in compensation.

The Complainant contends that he did not terminate his employment. On return from a leave of absence the Respondent clearly confirmed that his position had been filled in his absence. Given the Complainant’s length of service he was entitled to 1 weeks’ notice or payment in lieu. He received neither.

The Respondent submits that the claim is void of any basis. It is the Respondent’s position that the Complainant resigned from his employment with immediate effect by virtue of the fact that he requested his P45 to be issued to him “as soon as possible” and thus no notice is due. Notwithstanding the above, the Complainant was paid on a weekly basis for all hours worked during the previous week, as no hours were worked by the Complainant, no payment was due. This is in line with custom and practice. The Complainant was not treated any differently as a result of resigning as there was no work available. The Respondent relies on Halal Meat Packers (Ballyhaunis) Ltd. v ETA [1990] ELR 49.

The Complainant’s contract of employment provides that “Should the Company wish to terminate your employment for a reason other than that which would entitle the Company to dismiss you summarily, you will be given notice. The Company is entitled to pay the equivalent weeks pay in lieu of notice, in line with the Minimum Notice and Terms of Employment Act, 1973-2001.”

The evidence before me confirms that the Respondent dismissed the Complainant without adhering to its obligations under the Minimum Notice and Terms of Employment Act, 1973 which under Section 4(2)(a) requires one week notice if the employee has been in the continuous service of his employer for less than two years.

In accordance with Section 4(2) of the Minimum Notice and Terms of Employment Act, 1973 I find that the Complainant was entitled to one week notice as he had less than two years’ service at the time of his dismissal. I direct that the Respondent pay the Complainant compensation of €402 amounting to one week pay.

The Worker submits that his claims under the Industrial Relations Act and the Payment of Wages Act are inter-related and refer to the reduction in existing terms and conditions of employment as they relate to overtime payments. These reductions in overtime rates arise from the misapplication of the provision of the Contract Cleaning ERO by the Employer, which came into effect on 27th October 2016. On the commencement of his employment the Worker was covered by the provisions of overtime arrangements contained in the company Handbook. These arrangements were set out as follows:

“Overtime at the end of working day – Time and a half All overtime worked on a Saturday – Time and a half first 4 hours/ Thereafter at Double time All overtime worked on Sundays/Public Holidays – Double time”

On the enactment of the ERO the Employer imposed the lesser terms of overtime rates applicable under the statutory instrument. This decision was implemented without consultation or agreement and without taking due cognisance of the protections afforded to workers under the ERO which clearly identify in relation to overtime “Where existing site arrangements are in place, they will remain as is unless changed by agreement”. The Worker submits copies of payslips showing that the Worker only received overtime premiums after the completion of 44 hours on a weekly basis.

The Worker submits that “I have trade dispute with my employer in relation to their failure to observe my contractual entitlements to overtime payments”. The Employer disputes this claim on the grounds that the Worker received payment for overtime worked, in line with his contract of employment, Employment Regulation Order (ERO) (Contract Cleaning Joint Labour Committee) 2015, S.I. 418 of 2015, the subsequent ERO of 2016, S.I. 548 of 2016 and custom and practice of the Employer organisation regarding same.

The Worker’s contract of employment states on pg. 2 Overtime Clause that “payment for hours worked in excess of your normal hours of work will only be made where it has been approved in advance by your supervisor.” On pg.12 the contract states “any new conditions or changed conditions to the existing JLC for Contract Cleaning will apply to the terms and Conditions of this contract with immediate effect”. Part V of the ERO clearly sets out the obligations of employers with regard to overtime. It states: “Overtime rates shall be paid after 44 hours worked Monday to Sunday. Time and one half for the first four hours and double time thereafter. Sunday overtime to be paid at a rate of double time for all hours worked.” “Hours of overtime carried out after 40 hours and up to 44 hours per week will be paid at flat rate…Where existing site arrangements are in place, they will remain as is unless changed by agreement”. The Employer confirms that there were no existing site arrangements in place. The Worker commenced his employment on 18th April 2016 and was always paid overtime in line with ERO in place at the time. While it is stated in the Employer’s Handbook under Overtime Clause that “payment for hours worked in excess of 8 hours per day or 40 hours per week will only be made where it has been approved in advance by your supervisor” it is the Employer’s position that the Handbook is a policy document and is superseded by an employee’s employment contract. The Handbook was printed in 2014 and there are plans to have a new Handbook printed to accurately reflect the custom and practice of the Employer.

This very issue was addressed by employees on a number of occasions including toolbox talks held with all employees in May 2017. It was outlined on that occasion that the Employer pays overtime in line with the current ERO.

The Worker claims that the Employer failed to observe his contractual entitlements to overtime payments. The Worker argues that following the enactment of the ERO on 27th October 2016 the Employer misapplied the provisions of the ERO and imposed the lesser terms of overtime rates applicable under the ERO. In doing so the Employer changed the existing arrangements without consultation or agreement. The Employer argues that overtime has historically been paid in accordance with the ERO in force.

The relevant provisions Contract of employment stipulate as follows: “Overtime. Payment for hours worked in excess of your normal hours of work will only be made where it has been approved in advance by your supervisor.” (p.2) “Organisation Policies and Procedures On your commencement, a copy of the company’s Employee Handbook will be given to you. This document forms part of your terms and conditions of employment, and you are requested to read it and familiarise yourself with the policies and procedures therein. You will be required to sign an acknowledgement that you have read and accepted the terms therein.” (p.9)

“Any new conditions or changed conditions to the existing JLC for Contract Cleaning will apply to the Terms and Conditions of this contract with immediate effect.” (p.12)

Copy of the relevant page of the Handbook provided by the Worker at the hearing provides that: “Payment for hours worked in excess of your normal hours of work will only be made where it has been approved in advance by your supervisor. … Overtime will be paid at the following rates: Overtime at the end of working day – Time and a half All overtime worked on Saturday – Time and a half for the first 4 hours, thereafter at double time All overtime worked on Sunday & Public Holidays – Double time”

The Worker submitted also a copy of an undated and unsigned document entitled “Changes to the Company Policy Booklets. Paid Overtime”. The document refers to the S.I. 548/2016 and outlines the overtime rates therein.

Parties confirmed at the hearing that the Complainant was always paid overtime at the rate of time and a half for hours worked in excess of 44 hours and double time for hours worked in excess of 48 hours a week. Sunday overtime was paid at double time.

The Worker claims that he should have been paid overtime at the rate of time and a half for hours worked in excess of 40 hours a week and double time for hours worked in excess of 44 hours a week in line with the Handbook and Contract of employment.

I note the quote from the Handbook referred to by the Employer in relation to“payment for hours worked in excess of 8 hours per day or 40 hours per week will only be made where it has been approved in advance by your supervisor”.   This document, if exists, would be essential to support the Worker’s claim. However, neither Party made it available to me. The Handbook presented at the hearing by the Worker does not contain this description of overtime entitlements and does not support the Worker’s claim. The documents presented at the hearing refer to “payment for hours in excess of your normal hours of work” and “overtime at the end of working day”. It was not in dispute that the Worker, due to the nature of his employment arrangement, did not have “normal working hours” or normal working day specified in his contract of employment. The Worker did not provide any evidence to support his argument that the Employer obliged to pay him overtime rate in respect of hours in excess of 40 hours a week. The Worker did not provide any evidence either in support of his claim that the Employer imposed the lesser terms of overtime rates applicable under the ERO as of 27th October 2016. In fact, the Parties confirmed that the Worker was always paid overtime in line with the 2015 and 2016 EROs. Therefore, no change was introduced after the commencement of the ERO on 27th October 2016.

On the basis of the evidence and my findings above and in accordance with Section 13 of the Act, I do not recommend in favour of the Worker.

The Complainant submission in relation to the dispute under the Industrial Relations Act applies. The Complainant contends that the Respondent is in breach of the Payment of Wages Act as there is a deficiency of €1,400 in the wages properly payable to him.

The Respondent rejects the claim as no jurisdiction exists for the claim to be heard as no unlawful deductions were made under Section 5 of the Act. As no deductions of wages has taken place, Section 5 of the Act has not been contravened and no jurisdiction exists for this case to be heard by the Adjudicator. Notwithstanding the above, the Respondent further contends that the long-standing custom and practice in the Respondent organisation to pay overtime in line with the Contract Cleaning ERO. The Complainant is alleging that an amount of €1,400 is owed to him due to the Respondent’s “failure to pay me my contracted rate for overtime earnings”. The Complainant has not supplied any detail as to how this figure was arrived to.

The Complainant submits that the Respondent failed to pay him his contracted rate for overtime and seeks €1,400 in respect of that under the Payment of Wages Act. The Employer denies the claim.

The issue of whether the Respondent misapplied the provisions of the ERO and whether correct rates of overtime were paid to the Complainant has been subject of complaint CA-00013940-003   under the Industrial Relations Act and is addressed above. My findings in respect of the overtime rates of pay apply.

For the sake of completeness, I find that the Complainant did not provide any evidence to support his claim that the Respondent failed to pay him his contractual rate for overtime. He also did not provide any evidence in respect of the figure of €1,400 claimed.  

Having taken into account all of the written and verbal submissions of the parties and all of the evidence adduced, I find that the complaint is not well founded.

Overtime rates-unfair dismissal- minimum notice