ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017724( Conjoined with ADJ 17722)
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00022857-001 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022857-002 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022857-003 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022857-004 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022857-005 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022857-006 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00022857-007 | 25/10/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977( Withdrawn at hearing ) | CA-00022857-008 | 25/10/2018 |
Date of Adjudication Hearing: 01/03/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act , 1991, Section 27 of the Organisation of Woking Time Act , 1997, and Section 7 of the Terms of Employment ( Information ) Act, 1994, 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 a Polish National who presented his case with the benefit of Interpretation. He was represented by the IWU. The Respondent in the case, attended with his Partner as Company Directors and disputed that they had ever been the complainant’s employer. The Claim under the Unfair Dismissals Act 1977 was withdrawn at hearing. I declared that I required more detail from the complainant and wrote to the Union dated 6 March 2019, seeking The Complainants PRSI number and records. A redacted extract from a bank account into which €450 was allegedly paid. This case is conjoined with ADJ 17722 heard on the same day. I requested a response by March 15, 2019, no response followed then o in the three week intervening period .
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Summary of Complainant’s Case:
The Complainant is a Polish Construction Craftsman who worked for the Respondent from 1 December 2017 to 12 June 2018. The Union submitted that he worked across 7 days of the week, sometimes up to 125 hours. He submitted that his net pay was €2,300 but while agreed with the Respondent was never paid in full to him. The Complainant gave evidence that they knew each other from previous employment. He exhibited pictures from a mobile phone which confirmed that work sites he attended. CA-00022857-001 Payment of Wages The Complainant stated that he was owed €46, 264.92 in unpaid wages from his wok across various building sites roofing, plastering, painting, bricklaying, fitting windows, doors and tiling. He spent 5 hours on Sundays loading materials and tools onto the van and slept in the van. He confirmed that he received sporadic payments and stated that he had received a cash payment of €450 doing March 2018 directly to his bank account, but normally, he just received cash payments of €150 to €200. He stated that there was one other employee and while employed, he worked under the direction and control of the Respondent. He submitted that he was entitled to receive the Construction Industry Sectoral Employment rates. He confirmed that he discussed these rates, but they were not paid. The Union on behalf of the complainant claimed €46,264.92 constituted an illegal deduction to the complainant’s wages and sought compensation. CA-00022857-002 Daily Rest Period The Complainant stated that he had slept in Van in car parks without breaks. There no submitted on dates, times of instances of contravention. CA -00022857-003 Weekly Rest Periods The Complainant submitted that he never had a full day of rest in his employment. There no submitted on dates, times of instances of contravention. CA -00022857-004 In excess of maximum hours worked. The Complainant submitted that he spent over 30 hours each week travelling to and from work in the Van driven by his employer. He also worked more than 70 hrs pe week in active work between February 2018 and June 2018. There no particulars submitted on dates, times of instances of contravention. CA -00022857-005 Annual Leave The Complainant submitted that he had never received his annual leave entitlement. He confirmed that he took two weeks leave in July. He asked for annual leave as cessor pay, but was refused CA -00022857-006 Public Holiday The Complainant stated that he had not received his Public Holiday entitlement during his employment or on leaving. In taking account of the cognisable period allowed for the claim, he confirmed that he was off work on St Patricks Day. CA -00022857-007 The Complainant submitted that he had never received written terms and conditions of employment. He submitted that he had requested this document, but the Respondent had told him that he waiting to obtain it from the Accountant. |
Summary of Respondent’s Case:
The Respondent presented at hearing with his Partner and immediately submitted a typed note dated March 1,2019, which stated I and Ms X are Directors of the named Company in the present complaint and have never employed the complainant. Any workers we have are fully registered………The Complainant was never employed in our company. The Respondent went on to submit that he and his partner were shocked at the false case made by the complainant. He stated that the complainant had not asked him for a job. He had allowed him to stay at his lodgings as he was vulnerable and actively drinking. He borrowed money from the respondent at Christmas time. The Respondent had concerns at the complainants disturbed behaviour in the domestic setting, but he never employed him, paid him or trained him. The Respondent confirmed that he had a €4,500 turnover in his business July -December 2018. He contended that he had given the complainant a spare phone when he had damaged his own. This did not incorporate a SIM card. The photos relied on by the complainant wee the photos which the Respondent had taken of his own work locations, but these did not involve the complainant. He rejected all the complaints as opportunistic and asked that they be dismissed. The respondent submitted that he maintained records for his own employees, but he had none to submit here as the complainant had never been employed by him. CA -00022857-001 The Respondent denied that he had ever employed the complainant. CA -00022857-002 The Respondent denied that he had ever employed the complainant. CA -00022857-003 The Respondent denied that he had ever employed the complainant. CA -00022857-004 The Respondent denied that he had ever employed the complainant. CA -00022857-005 The Respondent denied that he had ever employed the complainant. CA -00022857-006 The Respondent denied that he had ever employed the complainant. CA -00022857-007 The Respondent denied that he had ever employed the complainant. |
Findings and Conclusions:
I have considered the facts as presented by both parties in this case. The claim came before the WRC dated 25 October 2018. The employment as submitted by the complainant had ceased on 12 June 2018. Considering the disputed employment status, I identified that a decision on the employment would have to be a Preliminary issue. I explained to the parties, that if I decided that an employment relationship was in being, I would press on with the substance of the 7 complainants associated with the cognisable period allowed to me. Conscious that the Complainant was being supported by both the Union and an Interpreter, I asked about his past working experience in Ireland. The Complainant told me that he had been a Farm Worker for 2 years. He had paid PRSI. He gave an elaborate account of his work with the respondent and complimented the quality of the respondent’s tools. I asked about Protective clothing and he responded that he worked mostly inside. This was at variance with the content of his complaint from where work was mentioned as virtually all outdoors. I found the complainant to have no concrete detail which might link him to an employment relationship of any kind. His recall of his experience there was vague and inconsistent. However, I was quite taken aback when I considered the evidence surrounding the i phone given to the Complainant by the respondent. I looked carefully at the photos shown and I found the complainant very vague on this detail, while the respondent was clear on the origin of the photos. This was clearly a record of the respondent work bases. I inferred from this that the complainant relied on the residual photos remaining in the iPhone history log and claimed them for his own. I confirmed that the phone given in plain form and the complainant entered his own” pay as you go SIM card “and paid the bill himself. At the end of the hearing, I had very little to go on. I did not have the benefit of Pay slips, P60, P45, Bank Statements or anything tangible linking the complainant with the respondent outside them sharing the same dwelling house for a time. I was conscious that workers can be present in a workplace and vulnerable, bereft of official details. Therefore, I took another look at the facts presented and sought supplementary detail which the complainant acknowledged was within his gift to produce. PRSI number, records, evidence of the €450-euro deposit from the respondent. I did not receive any answer to my request before March 15 or within three weeks thereafter.
I believe that taking account of the clarity of the Respondent submission and judged against the vagueness and false statements made by the Complainant, I believe I have no option but to exercise my powers under Section 42(1) of the Workplace Relations Act, 2015 Dismissal of claim by adjudication officer 42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41if she is of the opinion that it is frivolous or vexatious. (2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court. (b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal. (c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought. I have decided that all 7 claims must be dismissed as vexatious in accordance with Section 42 of the Act. I cannot find anything tangible to link the parties to an employment relationship.
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