Complainant

Respondent

Anonymised Parties

A Plasterer

A Plastering and Insulation Company

Representatives

Blazej Nowak

In person

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00006985-001

05/09/2016

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

CA-00006985-002

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-003

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-004

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-005

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-006

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-007

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-008

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-009

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00006985-010

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-011

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-012

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-013

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-014

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-015

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-016

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-017

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-018

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-019

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-020

05/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00006985-021

05/09/2016

1.       The 21 complaints were instituted on 5 September 2016

2.       For clarification purposes;

3.       Under the Payment of Wages Act 1991 there are 2 complaints

4.       Under the Organisation of Working Time Act 1997 there are 8 complaints

5.       Under the Terms and Conditions of Employment Act 1994 there are 11 complaints

6.       The following facts are common case:

7.       The Complainant commenced work as a plasterer/ insulation fitter, for the Respondent, in 2012

8.       He left his position voluntarily on 8 July 2016 following a disagreement with the Respondent owner (AB)

Terms of Employment Act 1994

1.       The Complainant never received a statement of his terms and conditions in writing

2.       In respect of breaches under the Terms of Employment Act 1994, no defence has been raised by the Respondent.

3.       Separate complaints are raised in respect of all the sub-sections of 3 of the T&C 1994 Act. There is a complaint for failure to provide the following terms; the names of employer/employee, the address, the place of work, the title of the job, the date of commencement, whether the contract is temporary, the rate of pay, the minimum wage, length of intervals between pay, hours of work and then an overall breach under section

4.       Hence there are 11 separate complaints.

Payment of Wages Act 1991

5.       The Complainant said that when he started work in 2012 until June 2016 he was paid on a piece meal basis, i.e. per metre.

6.       His official pay was €100 per week, which might indicate that he was only working one day per week, however he was paid cash (which he understood was “off the books” and not declared to Revenue) for the remaining days four and a half days

7.       In total he worked 5 and a half days per week. His hours of work on week-days were 8am until 6 pm and 8m until 1pm on Saturdays. His average working week was 56 hours.

8.       In October 2015 he was approached by the owner of the Respondent, AB, and given social welfare application form. As he was officially not working 4 out of 5 days, he was told by the Respondent that he could claim social welfare on top of working a full working week, which he proceeded to do.

9.       He accepts that this claim for social welfare was fraudulent and that he was paid “on the double” as it from October 2015 until his employment ended in July 2016. He bears no responsibility for this however as it was done on the Respondent’s suggestion.

10.   He accepts that his overall income “took a hike” in October 2015, when he was in receipt of the social welfare on top of his official (declared) salary and his unofficial salary in cash.

11.   In June 2015 the Respondent decided that the Complainant would be paid per hour rather than on a piece meal basis. This gave rise to a disagreement between them and the Complainant left the job.

12.   The Complainant’s claim under the Payment of Wages Act 1991 is for unpaid wages for the time spent travelling from his home to work.

13.   In the last 6 months of his employment (17 weeks that he worked) the Complainant seeks a remedy of €75 per week; a total of €1275.00 for breach under s. 6 of the Payment of Wages Act.

Organisation of Working Time Act 1997

14.   In respect of all breaches under the Organisation of Working Time Act 1997 the claim is for 12 months preceding the end of the employment (i.e. an extension of the reckonable period of 6 months). The Complainant submits that this is permitted under 27 (5) of the OWTA 1997.

Public Holidays (s. 21 and s 22 of OWTA 1997)

15.   If the complaint is limited to six months, the   Complainant is entitled to the following bank holidays in 2016; St. Patrick Day, Easter Monday, May Day and June Bank Holiday.

16.   If the complaint is extended to 12 months the claim is for 8 public holidays.

17.   The remedy sought is 2 years wages in compensation for a breach under s. 21 of the OWTA 1997 and

18.   A further 2 years compensation for a breach under s. 22 of the OWTA 1997

Rest periods in the afternoon (s. 12 of OWTA 1997)

19.   There was only a morning break permitted, no afternoon break

20.   Remedy sought is 2 years wages in compensation for a breach under s. 12

Excessive Hours (s. 15 of OWTA 1997)

21.   The Complainant worked on average 56 hours per week in excess of the maximum amount of hours permitted by OWTA, of 48 hours per week

22.   Remedy sought is 2 years wages in compensation for a breach under s. 15 of OWTA 1997

Annual Leave (s. 19 of OWTA 1997)

23.   No holidays were paid, which is accepted by the Respondent

24.   The Complainant worked a full working week and should have been entitled to 2 weeks for the 6 month leave period of October 2015 until April 2016

25.   Or 4 weeks if the calculation of the leave period is 12 months (April 2015 to April 2016)

26.   Holidays are a social right

27.   No defence has been raised by the Respondent .

28.   Remedy sought is 2 years wages in compensation for breach under s. 19 of OWTA 1997

Annual Leave (s. 20 of OWTA Act 1997)

29.   Remedy sought (for a separate s. 20 breach) is 2 years wages in compensation for breach under s. 20 of the OWTA 1997

Holidays on Termination of Employment (s. 23 of OWTA 1997)

30.   From April to July 2016 the Complainant seeks holidays

31.   The economic loss to the Complainant is calculated at €770 based on him working full time but the remedy sought is not restricted to loss but rather is 2 years wages in compensation for breach under s. 23 of OWTA 1997.

Information re working time (s. 17 of OWTA 1997)

32.   The Complainant had a right to know his finish time each day but did not

33.   The Complainant accepted in evidence that he was expected to work each day until 6pm but that sometimes they finished earlier, at 5pm

34.   Remedy sought: 2 years wages in compensation for breach under s. 17 of OWTA 1997

Section 25 of OWTA 1997

35.   The Complainant asserts that the Respondent cannot rely on the records that were presented at the Tribunal as these are inadequate and do not meet the statutory format.

36.   Furthermore the Complainant submits that the burden of proof that a section of the OWTA 1997 has been complied with falls to the Respondent where the records do not meet the statutory format.

Terms of Employment Act 1994

1.       The Respondent owner (AB) accepts that he did not furnish the Complainant with terms and conditions of employment in writing

Payment of Wages Act 1991

2.       AB accepts that the Complainant worked for him since 2012

3.       AB says that the Complainant usually worked one day per week but sometimes did 2 days or three days.

4.       Any day that the Complainant worked, he worked for 8 hours and he was paid an hourly rate of €12.50 per hour; hence the daily rate of €100.

5.       AB denied that he was involved in any fraud against the social welfare department. AB knew that the Complainant was being paid social welfare but this was because he was only doing a short week (mostly only one day a week) and he was entitled to social welfare based on the remaining days in the week that he did not work

6.       It is completely denied that he, the Respondent, was party to any attempt to defraud the Department of Social Protection

7.       The Complainant worked one day a week, sometimes 2 or 3 but rarely.

8.       AB’s business records disclose that these were the actual hours worked by the Complainant and they correspond with the amounts that he was paid.

9.       AB says that the Complainant was not entitled to be paid for the time that it took him to get to the sites. He did not pay him for this.

Organisation of Working Time Act 1997

10.   The employment ended on 8 July 2017 and the claims under the Organisation of Working Time Act 1997 are limited to six months. No evidence has been put forward by the Complainant to justify extending the claim to 12 months.

Public Holidays (s. 21 and s 22 of OWTA 1997)

11.   The Respondent accepts that he did not pay the Complainant for bank holidays and this was because he was paid bank holidays by the Dept. of Social Welfare.

12.   He did not believe that he owed him money for bank holidays when he only worked 1 day per week.

13.   Certainly during the relevant period, i.e the last 6 months of employment (of the 27 weeks worked) for 12 weeks he worked one day per week, for 4 weeks he worked 1.5 days per week; for 1 week he worked 2 days per week; for 1 week he worked 2.5 days and for 1 week he worked 3 day per week.

14.   In the relevant period he would have been entitled to 4 bank holidays if he had worked on those bank holidays, however, the Respondent denies that he worked any bank holiday

15.   Based on the records held by the Respondent the Complainant did not work on St. Patricks Day, on the May bank holiday or the June Bank holiday. He did however work on Easter Monday (Monday March 28th) for which he was not paid public holiday pay.

Rest periods in the afternoon (s. 12 of OWTA 1997)

16.   The Complainant got a break mid-morning and mid-afternoon. The Claimant was a smoker and took a cigarette break every hour. He took all the rest breaks that he wanted and was entitled to.

Excessive Hours (s. 15 of OWTA 1997)

17.   It is denied that the Complainant worked 56 hours per week.

18.   He worked approximately one day per week and the records of the business records this

Annual Leave (s. 19 of OWTA 1997)

19.   As he only worked one day per week, I did not believe that I was obliged to pay him for holidays. I did not know that he may have been entitled to a pro rata amount of the statutory amount, based on him working one day per week.

Annual Leave (s. 20 of OWTA Act 1997)

20.   This overlaps with the complaint immediately preceding this complaint, at particular 19 above

Holidays on Termination of Employment (s. 23 of OWTA 1997)

21.   As he only worked one day per week, I did not believe that I was obliged to pay him for holidays. I did not know that he may have been entitled to a pro rata amount of the statutory amount, based on him working one day per week.

Information re working time (s. 17 of OWTA 1997)

22.   The Complainant was fully aware of his working hours which was 8am until 5pm. When it was dark, during the winter months, we finished at 4pm. These were the hours that were worked. There was no change in this. The only variable was that sometimes the Complainant did one day per week, sometimes 2 days per week. Occasionally he did 3 days per week, but this was not very often. As we worked alongside one another, it was very clear what work needed to be done and whether or not he was needed.

Section 25 of OWTA 1997

23.   The Respondent provided written records in relation to the employment of the complainant. He records the days worked and the days not worked. He accepts that these may not be complete for the purpose of the Organisation of Working Time Act 1997

Payment of Wages Act 1991

CA-00006985 -001

CA-00006985 -002

The Complainant has accepted that he defrauded the Department of Social Protection by claiming social welfare over 2015-16. He accepts that during the time that he claimed social welfare , he was at the same time, in full time work with the Respondent. In the face of this admitted fraud and in light of his inconsistent evidence at the Adjudication hearing, I do not find the evidence of the Complainant to be credible.

I neither accept the salary figure that he claims nor his claim that he worked a 6.5 day week for the Respondent. I do not accept that the Complainant travelled to work 6 days a week as claimed. I furthermore do not accept that the legal basis of his claim, that he be paid for travel time to and from work, has been made out by the Complainant. I am guided by the jurisprudence of the Labour Court in the case of Lilita Abzinova v. Noonan Services Group Ltd in this regard.

I do not find that a deduction from the Complainant’s salary has been made out and I do not accept that the two complaints made under the 1991 Act to be well founded.

Award: Nil award

Organisation of Working Time Act 1997

CA-00006985 -003 Public Holidays (s. 21 and s 22 of OWTA 1997)

Given the admitted fraud by the Complainant I accept the version of events set out by the Respondent. Based on the records of the Respondent the Complainant did not work St. Patricks Day, the May bank holiday or the June Bank holiday. As it is conceded that he worked on Easter Monday (March 28 2016) and was not paid for this I find this complaint to be well founded on the point that he should have been paid one extra day work in respect of Easter Monday. Consequently I award one day’s loss (€100.)

Award: €100.00

CA-00006985 -004 Rest periods in the afternoon (s. 12 of OWTA 1997)

Given the admitted fraud by the Complainant I find the version of evidence provided by the Respondent in respect of rest periods to be preferable to that of the Complainant. I accept that rest periods were allowed in mid-morning and mid-afternoon as well as a break for lunch.

I do not find this complaint to be well founded.

Award: nil award

CA-00006985 -005 Excessive Hours (s. 15 of OWTA 1997)

Given the admitted fraud by the Complainant I find the version of evidence provided by the Respondent in respect of work hours to be preferable to that of the Complainant. The hours worked by the Complainant match those found in the records of the Respondent and reflected in the pay slips. These amount to, on average, a 1.5 day week working 8am to 5pm

Consequently, I do not find this complaint to be well founded.

Award: nil award

CA-00006985 -006 Annual Leave (s. 19 of OWTA 1997)

This complaint is conceded by the Respondent. Based on a leave period of 6 months between October 2015 and April 2016 I award 2 weeks remuneration based on a 1.5 day working week, with pay at 150 per week.

Award: €300.00

CA-00006985 -007 Annual Leave (s. 20 of OWTA Act 1997)

This is a duplication of the claim immediately preceding this complaint and consequently I do not find it to be well-founded.

Award: nil award

CA-00006985 -008 Holidays on Termination of Employment (s. 23 of OWTA 1997)

Again this complaint is conceded. This is from April 2016 until termination in July 2016, the entitlement to which is a quarter of the annual statutory holiday entitlement of 4 weeks, therefore the award is €150.00

Award: €150.00

CA-00006985 -009 Information re working time (s. 17 of OWTA 1997)

I am satisfied, based on the evidence of the Respondent that the Complainant was fully aware of his start and finish times each day. This did not change and the only alteration to this occurred during the winter months when the day ended at 4pm instead of 5pm. I am satisfied also that given that there was only the Complainant working alongside the Respondent and that this was most of the time, that the Complainant was fully aware of what work hours would be required of him at least 24 hours before the first day of any working week. Indeed, no evidence to the contrary was given at the hearing. Consequently, I do not find this complaint to be well founded.

Award: nil award

CA-00006985 -0010 Section 25 of OWTA 1997

There is no right to compensation arising out of section 25 of the OWTA 1997 and an Adjudicator has no jurisdiction to make an award for a breach under this under section 27 of that Act. Consequently this complaint is not well founded.

Award: Nil award

Terms of Employment (Information) Act 1994

CA-00006985 -011

As the Respondent concedes that no terms of employment were issued to the Complainant I find that this complaint is well founded and I award to the Complainant 4 weeks remuneration.

In relation to complaints CA-00006985 – 012   to CA – 00006985 – 021, I find that these are duplicate complaints to CA-00006985 -011 and as this complaint has been compensated for I do not find that these other complaints to be well- founded and no award is made in respect of these complaints.

The award is based on an average working week of 1.5 days, the payment for which was €150.

Award: €600.00