ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009830

Complaints:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00012500-001 14/07/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00012500-002 14/07/2017   Date of Adjudication Hearing: 10/11/2017 Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.  

Background:

The complainant is claiming that he was not paid the correct rate of pay for the job that he was doing and that he also did not receive a copy of his terms of employment.   He commenced employment on 12 December 2016 and his employment ceased on May 15 2017.

Summary of Complainant’s Case: - CA-00012500-001

The complainant’s representative advised that he received an email from the respondent detailing that the respondent would not be able to attend the hearing   The complainant advised that he commenced employment on 12 December 2016 and his employment ceased on May 15 2017. He advised that when he commenced employment he requested the rate for the job of heavy machine operator which is a rate of €16.69 as per the 2011 Registered Agreement. While it was accepted that the Supreme Court declared that the provision of Part III of the Industrial Relations Act 1946 was repugnant to the Constitution of Ireland, the contractual rights of workers in sectors covered by such agreement were not affected and thus remained the contractual effect on the complainant’s contract. He detailed that he was advised by the respondent that he would not be getting that rate and if he was not happy then he could leave.   The job finished on 15th May 2017 for all employees owing to the cessation of the project that they were working on.  

Summary of Respondent’s Case: CA-00012500-001

The respondent did not attend the hearing. An email had been sent to the WRC on 8th November detailing that “In relation to the above-named case due to circumstances beyond my control I will not be able to attend the hearing on Friday 10th November.”    

Findings and Conclusions: CA-00012500-001

It was regrettable that the respondent did not attend the hearing to put forward a defence to the above and therefore, the only evidence I have is that of the complainant. It is also noted that the respondent did not seek an adjournment.   Section 5(6)(a) of the Payment of Wages Act sets out: 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.   Having heard the uncontested evidence, it would appear that the complainant worked as an construction operative in the construction firm within the meaning of the First Schedule of the Registered Employment Agreement and that the terms apply to employees employed in the  construction sector by Building or Civil Engineering Firms whose principal business or  activities is work connected with or directly arising from the building or construction.   I, therefore, find that the complainant was a person to whom the Agreement applied. I am also satisfied based, on the complainant’s evidence of the work that he was actually engaged in; that he should have received the higher rate of €16.69 per hour.   His complaint was received on 14th June 2017, thus the applicable period commenced from 15 January 2017 and from the pay slips presented a total of 748 hours were worked with an underpayment of €1,159.40.   In respect of complaint CA-000012500-001 and based on the uncontested evidence of the complainant, I find and declare that the complaint under Section 6 of the Payment of Wages Act 1991 is well founded and it is upheld and the complainant is entitled to be paid €1,159.40 gross.      

Summary of Complainant’s Case: - CA-00012500-002

The complainant’s representative advised that he received an email from the respondent detailing that he would be able to attend the hearing   The complainant advised that he never received any contract or terms and conditions of employment. He advised that if he had received same, the confusion around his rate of pay could have been dealt with. It was detailed that the failure to provide terms and conditions of employment was a deliberate act in order to keep employees in the dark around their rights.    

Summary of Respondent’s Case: CA-00012500-002

The respondent did not attend the hearing. An email had been sent to the WRC on 8th November 2017 detailing that “In relation to the above named case due to circumstances beyond my control I will not be able to attend the hearing on Friday 10th November.”  

Findings and Conclusions: CA-00012500-002

It was regrettable that the respondent did not attend the hearing to put forward a defence to the above and therefore, the only evidence I have is that of the complainant. It is also noted that the respondent did not seek an adjournment.     The complainant details that he never received terms of employment.   Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that an “employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the … terms of the employee's employment.”   Sec 7 (2) (d) of the Act orders “…the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977”   In the absence of any evidence from the respondent and having heard the impact of the respondent’s failure to provide same, I must prefer the evidence of the complainant and declare that the complaint is well founded and succeeds.     In respect of complaint CA-000012500-002 I uphold the complaint under section 7 of the Terms of Employment (Information) Act, 1994 and award the complainant €655.00 gross.  

Decision:

Section 41 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 of that Act.   CA-000012500-001 In respect of complaint CA-000012500-001 and based on the uncontested evidence of the complainant, I find and declare that the complaint under Section 6 of the Payment of Wages Act 1991 is well founded and it is upheld and the complainant is entitled to be paid €1,159.40 gross. CA-000012500-002 In respect of complaint CA-000012500-002 I uphold the complaint under section 7 of the Terms of Employment (Information) Act, 1994 and award the complainant €655.00 gross.  

Dated:   09/02/2018

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words: Payment of wages, registered agreement, terms and conditions of employment