ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005775
Parties:
| Complainant | Respondent |
Anonymised Parties | A Plasterer | A Plaster and Insulation Company |
Representatives | Blazej Nowak | In person |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00007964-002 | 31/10/2016 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This complaint was adjudicated upon by way of hearing on 2 August 2017 alongside 22 related complaints brought by this Complainant against this Respondent. The following facts are common case: The Complainant commenced work as a plasterer/insulation fitter for the Respondent in 2012. He left his position voluntarily on 8 July 2016 following a disagreement with the Respondent
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Summary of Complainant’s Case:
1. The Complainant was paid on average €133.00 per week for a working week of 56 hours. 2. He was paid officially for one day of work but was paid in cash “off the books” for the remainder of the week. 3. The Complainant accepts that for the duration of his work in 2015-16 he received payments from the Department of Social Protection on the false basis that he was only working one day a week. He accepts that he falsely represented himself as being available for work for 5.5 days per week when he claims he was in fact working with the Respondent. 4. The Complainant asserts that “off the books” payments in cash are illegal payments and cannot be taken into account for the purpose of establishing whether a breach under the National Minimum Wage Act 2000 has occurred. |
Summary of Respondent’s Case:
1. The Complainant worked on average 1 day per week. Sometimes it was 2, rarely it was 3.` 2. His pay was €12.50 per hour and he was paid for the hours that he worked, which was 8 hours per day 3. This meant that on average he received €100.00 per day. For the days that he worked 2 days, he was paid €200.00 per day; 3 days, €300.00 per day. 4. The business accounting records of the Company support this. 5. There was no breach under the National Minimum Wage Act 2000 as he was paid over the national minimum wage for the hours that he worked. |
Findings and Conclusions:
1. The Complainant admits to fraudulently claiming social welfare over a period in 2015-16 at a time that he was working for the Respondent. 2. He admits to receiving social welfare when he was at times working 2 or 3 days per week for the Respondent, and yet the Department of Social Protection were paying him social welfare based on a misrepresentation that he was only working one day per week. 3. As a result, of this admitted fraud, I do not find the evidence of the Complainant to be credible 4. Conversely, I find the evidence of the Respondent to be credible and that the business records of the Respondent accord with the Respondent’s version of events. |
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.
On the basis and reasoning of the above findings and conclusions, I do not find the evidence of the Complainant to be credible, I therefore do not accept that the Respondent acted in breach of the provisions of the National Minimum Wage Act 2000. I find that the salary that he received was based on the hours that the Complainant worked and that he was paid €12.50 per hour. Consequently, this complaint is not well founded. |
Dated: 6 March 2018
Workplace Relations Commission Adjudication Officer: Emile Daly