ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013288

Parties:

	Complainant	Respondent
Anonymised Parties	Plasterer	Plastering Providers

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00017474-001	16/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017474-002	16/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00017474-003	16/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00017474-004	16/02/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00017474-006	16/02/2018

Date of Adjudication Hearing: 30/05/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.

This matter comes before an Adjudicator of the Workplace Relations Commission on foot of certain complaints which are contained in a Workplace Relations Complaint Form dated the 16th of February 2016.

The Following Complaints have been made:

1.The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and the where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).

In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.

The Complainant has referred two complaints of contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. Also a contravention of Section 21 relating to the entitlements which accrue in respect of Public Holidays.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

The Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. Pursuant to Section 6 of the said 1991 Act, in circumstances where the complaint is deemed to be well founded, compensation in the amount so specified may be awarded.

Lastly a Complaint has been made for redress in accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977.

Background:

The Complainant is from Romania and is a highly skilled construction site Plasterer. The Complainant’s employment with the Respondent came to an abrupt end when the Complainant had a car accident which left him somewhat incapacitated. Thereafter the Complainant returned to Romania on an extended break to get married. On his return the Complainant looked for monies due and owing and determined that he was not inclined to return to this workplace as there was so little clarity around remuneration and entitlements.

Summary of Complainant’s Case:

The Complainant worked for the Respondent alongside many members of his own family. He was receiving a wage of €140.00 per day and up to €860.00 per week. The Complainant had never received a Contract of employment though there is an acceptance that the Complainant’s Tax and PRSI was all paid over and above the figures that he received each week. There was no sick pay scheme in operation when the Complainant was out of work arising out of a car accident.

Summary of Respondent’s Case:

The Respondent made the case that he paid his valued Employees over and above the normal rate as he was always concerned that they would stay on with him. Mr. M on behalf of the company said that the daily rate should be seen as encompassing all entitlements – Bank Holidays, Annual Leave etc. He said that he understood that the Employees (9 in total) all recognised this fact.

The Respondent is fully tax compliant.

Findings and Conclusions:

I have carefully considered the evidence tendered in the course of this hearing. I accept that the Complainant had no inkling that his daily rate of pay had Annual Leave etc in some way factored into it.

One of the difficulties with asserting this, is that the Complainant never received wage slips which would clearly identify this as being the case. The Complainant has no idea of breakdown and assumed his wages were for hours worked.

I accept that Mr. M was a good Employer who paid over the odds to his team of skilled workers.

However, there is an obligation on the Employer to demonstrate compliance with the Organisation of Working Time Act 1997 together with the Payment of Wages Act 1991.

The claim under the Unfair Dismissals legislation was not actively pursued, and it is common case that the Complainant left the workplace in the aftermath of a car accident in October 2017 and was out of contact with Mr. M for upwards of four months as he had returned to Romania. At no time after his departure did the Complainant seek to assert his employment and I understand he is now working elsewhere. There was no Constructive Dismissal herein.

I accept that the Complainant was owed wages for his last days of employment in October of 2017 and indeed thee Employer has recognised this and expressed a willingness to pay this figure of €580.00.

In assessing compensation that might be payable under the Organisation of Working Time Act I must have due consideration for the six month period immediately preceding the date of issue of the Workplace Relations Complaint Form

Decision:

Section 41 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.

Regarding the complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 I find this complaint to be well founded and award €580.00.

Regarding the Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and arising out of a contravention of Section 21, I find the complaint to be well founded and award the sum of €140.00.

Regarding the Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 and arising out of a contravention of Section 19, I find the complaint to be well founded and award the sum of €2,500.00

Pursuant to section 7 of the Terms of Employment (Information) Act, 1994 I find the complaint to be well founded and make a n award in the sum of €100.00

Pursuant to Section 8 of the Unfair Dismissals Acts, 1977 – 2015 I have decided that the Complainant herein was not constructively dismissed and his claim for redress under this legislation must therefore fail.

Dated: 14th August 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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