ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012134
| Complainant | Respondent |
Anonymised Parties | A Concrete Technician | A Quarry |
Complaints:
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-00016012-001 | 27/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016012-002 | 27/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016012-003 | 27/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016012-004 | 27/11/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016012-005 | 27/11/2017 |
Date of Adjudication Hearing: 11/06/2018 and 09/08/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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 was available to inquire into the complaints and give the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The adjudication hearing of this complaint was due to take place on 11th June 2018. The respondent did not attend. The hearing was rescheduled to be heard on 9th August 2018 and notification of the date, time and location of the hearing was sent to the respondent at its registered address. The respondent also failed to attend the rescheduled adjudication hearing.
Background:
The complainant was employed by the respondent as a Concrete Technician from October 2016 until his resignation on 5th June 2017. The complainant was paid €30k gross per annum. |
CA – 00016012-001 – Payment of Wages Act, 1991
Summary of Complainant’s Case:
The complainant stated that he did not receive any payment from the respondent from 18th May 2017 until his resignation on 5th June 2017. The complainant stated that he was owed two weeks and one day of unpaid salary payments. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is unfortunate that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. Based on the complainant’s uncontested submission that he was paid a gross annual salary of €30k for a 39-hour working week, I calculate his gross rate of pay to be €14.79 per hour. I note from the records submitted by the complainant, that an EFT salary payment was paid to his bank account on 26th May 2018 which, in line with the payslip submitted, reflects payment of salary from 18th May to 24th May 2017. The complainant’s bank account statements show that no further payments were made to him from 25th May 2017 until Friday 2nd June 2017 prior to his resignation on Monday 5th June 2017. There were seven working days within that period. Accordingly, I find that the respondent has breached Section 5(6)(b) of the Payment of Wages Act, 1991 by withholding the salary payment for the period in question. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the complainant I find that the complaint is well founded. The respondent is directed to pay the complainant 7 days gross pay for the period 25th May 2017 to 2nd June 2017. The respondent is also directed to pay the complainant €250 in compensation for withholding his salary payment from him in contravention of the legislation. Payment should be discharged to the complainant within 42 days of the date of this decision. |
CA – 00016012-002 – Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complainant stated he did not receive the appropriate annual leave entitlements when his employment with the respondent ended. The complainant stated that he had an entitlement to approximately 8.33 days of annual leave from 1st January 2017 until 2nd June 2017. The complainant stated that he availed of two days of annual leave leaving a balance of 6.33 days which equates to approximately €891.00. The complainant is also seeking compensation in relation to his complaint. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is unfortunate that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. Timing of the complaint The complaint was submitted to the Workplace Relations Commission (WRC) on 27th November 2017. The cognisable period of the complaint is therefore 28th May 2017 to 27th November 2017. The complainant sought an extension of time to extend the cognisable period by a further six months to 29th November 2016. The complainant stated that issues relating to his employment were being dealt with by the Inspection Services of the WRC at that time and when that process concluded he referred unresolved issues to the Adjudications Services of the WRC. Extension of Time I accept that the complainant has shown reasonable cause in relation to the timing of his complaint and I am satisfied to extend the time by a further six months. The cognisable period of the complaint is 28th November 2016 to 27th November 2017. In the period from 27th November 2016 to 2nd June 2017 the complainant would accrue an entitlement to 10.4 days of annual leave. However, the complainant did not provide any evidence of untaken annual leave for the period 28th November 2016 to 31st December 2016. The complaint relates only to untaken annual leave between 1st January 2017 and 2nd June 2017 which the complainant has estimated as 6.33 days valued at €891.00. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the complainant, I find that the complaint is well founded. The respondent is directed to pay the complainant his outstanding annual leave entitlement of €891.00 in line with the provisions of Section 23 of the Organisation of Working Time Act, 1997. In addition, the respondent is directed to pay the complainant compensation in the amount of €500 for the infringement of his employment rights with regard to annual leave entitlements. Payment should be discharged to the complainant within 42 days of the date of this decision. |
CA – 00016012-003 – Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complaint relates outstanding annual leave entitlements. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
This complaint has been adjudicated upon under CA-00016012-002 above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As this is a duplicate complaint and a decision has already been made in relation to the substantive issue under CA-00016012-002, I declare that this complaint is not well founded. |
CA – 00016012-004 – Terms of Employment (Information) Act, 1994
Summary of Complainant’s Case:
The complainant stated that despite repeated requests from the respondent, he did not receive a contract of employment when he commenced in employment. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is unfortunate that the respondent did not attend the adjudication hearing to put forward its position in relation to the complaint. I note that in previous correspondence between the parties, the respondent refers to the complainant’s contract of employment. However, the complainant’s direct evidence is that there is no signed copy of his contract as he never received one. In the absence of any evidence to the contrary, I accept the complainant’s evidence that he did not receive a written statement of his terms and conditions of employment in line with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the complainant, I find that the complaint is well founded. The respondent is directed to pay the complainant €500 in compensation within 42 days of the date of this decision. |
CA – 00016012-005 – Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complainant stated that he regularly worked in excess of the weekly maximum number of hours permitted under the legislation. The complainant supplied payslips from Week 11 of 2017 to Week 21 of 2017 which was the last week he was paid for. The complainant stated that he was paid a salary of €30k gross per annum, yet each of the payslips exceed the weekly amount payable based on that salary which shows that he worked excessive hours each week. The complainant is seeking compensation in relation to the complaint. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication hearing and was not represented. |
Findings and Conclusions:
It is unfortunate that the respondent did not attend to put forward its position in relation to the complaint. I note that the payslips submitted by the complainant differ in the amounts that were paid each week. Based on an annual salary of €30k for a 39-hour week as submitted by the complainant, I have calculated the rate of pay as €14.79 gross per hour. Based on that hourly rate of pay, five of the 10 payslips submitted indicate that the complainant worked in excess of 48 hours per week although none of the payslips identify the number of hours worked. Accordingly, I accept the complainant’s position that he was regularly working in excess of 48 hours per week in contravention of Section 15 of the Organisation of Working Time Act, 1997. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the uncontested evidence of the complainant, I declare that the complaint is well founded. The respondent is directed to pay the complainant compensation in the amount of €1,000. Payment should be discharged to the complainant within 42 days of the date of this decision. |
Dated: 26/09/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Annual Leave entitlements, Contract of Employment, Excessive weekly working hours. |