FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : PAVEMENTSIDE LIMITED - AND - CATHAL O' TOOLE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00011979.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 12 September 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-
DETERMINATION:
Preliminary Issue
An application has been made by Mr Cathal O’Toole (“hereinafter referred to as the Applicant”) to correct the name of the Respondent in Adjudication Officer’s Decision ADJ-00011979 as it incorrectly stated the name of his former employer. The Decision stated that his employer was Br� House Fairview, which is a public house licensed premises. The Applicant sought to correct the employer's name to Pavementside Limited.
In support of his application, the Applicant stated that he had not received a statement or a contract of employment setting out the name of his employer when he commenced employment on 9thDecember 2016, nor any at any time thereafter. He stated that he did not receive payslips until 19thFebruary 2017. He said that the branding on the work clothing provided to him and on other merchandise simply said “Br�” and that within the workplace the employer was only ever referred to as Br� or Br� House Fairview. The Applicant produced a copy of his P45 furnished to him on the termination of his employment, this document failed to give the name and address of his employer. The Applicant said that when submitting his claim to the Workplace Relations Commission (WRC), he telephoned the WRC and sought advice from it on completing the form, due to difficulties he encountered in entering the correct details of his employer, including the employer registered number on the WRC online application system. However, in his attempt to provide the correct information, and on foot of advice he received from WRC staff, he included his payslips, which identified the employer as Pavementside Limited, along with the complaint form.
In his appeal form to the Court, under the heading ‘Respondent’s Details’ the Applicant cited the name ‘Mr Daire Harlin’ as the name of his former employer and gave the Company name as ‘Karpview Limited, Pavementside Limited’. The Applicant also included both the trading address of the public house in Fairview, Dublin 3 and the registered legal address of Pavementside Limited, Oaktree Business Park, Unit 5 Site 6, Trim, Co. Meath.
Mr Daire Harlin (“hereinafter referred to as the Respondent”) in his written submission to the Court stated that he represented a company by the name of Karpview Limited, he said that Karpview was not the Applicant’s employer.
At the hearing before the Court Mr Harlin stated that, as the sole Company Director of Pavementside Limited, he was the Applicant’s employer during the relevant period i.e. between 9thDecember 2016 and 21stMay 2017 when his employment was terminated. However, he maintained that incorrect details were submitted by the Applicant on the WRC claim forms therefore he was not legally responsible for the claims before the Court.
Determination on the Preliminary Issue
Having considered the submissions of both parties, the Court in exercise of its powers under Section 39(2) of the Organisation of Working Time Act, 1997 determines that the name of the employer in Adjudication Officer’s Decision ADJ-00011979 shall be changed from Br� House Fairview, 12 Fairview, Dublin 3, D03C998 to Pavementside Limited, c/o Br� Brewery, Unit 5, Site 6, Oaktree Business Park. Trim, Co. Meath.
Claim under the Payment of Wages Act 1991
This is an appeal by Mr Cathal O’Toole (“hereinafter referred to as the Complainant”) against Adjudication Officer’s Decisions ADJ-00011979 which held that she had no jurisdiction to hear the complaint in circumstances where the Complainant had cited an incorrect employer name.
The Complainant referred his claim to the Workplace Relations Commission on 20th November 2017 under the Payment of Wages Act 1991 (hereinafter referred to as “the Act”) alleging that he suffered an unlawful deduction from his wages when he was not paid for all the hours worked for his former employer, Pavementside Limited (“hereinafter referred to as the Respondent”).
The Dispute
It is the Complainant’s case that he was not paid for all hours worked and was not paid for outstanding annual leave on the cesser of his employment. He was initially employed on €10.50 per hour and was subsequently promoted to Manager when his hourly rate of pay increased to €13.00 per hour. He submitted specific details of the dates and times for which he was not paid. The Complainant said that he was trying to save as much money as he could therefore he was happy to have the monies owed to him accumulate. He said that the employer was aware of this, however, these monies were still owing to him when his employment terminated on 21stMay 2017.
The details provided by the Complainant for hours worked but not paid amounted to a total of €4,122.81 and for outstanding annual leave amounted to €463.97, giving an overall total of €4,586.78.
The Respondent informed the Court that as he had no day to day dealings with the Complainant he was not in a position to dispute his claims and therefore, did not contest the details supplied by the Complainant.
The Applicable Law
Section 5 of the Act deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states:-
- “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,
- (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
DETERMINATION
Based on the uncontested evidence presented at the hearing, the Court finds that the complaint is well-founded and orders the Respondent to pay the Complainant the sum of €4,586.78 for breaches of the Act, to be paid within six weeks of the date of this Determination. For the avoidance of any doubt, this award is made against Pavementside Limited, c/o Br� Brewery, Unit 5, Site 6, Oaktree Business Park. Trim, Co. Meath.
The Court overturns the Adjudication Officer’s Decision and the Complainant’s appeal succeeds.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
17 September, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.