ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020056
Parties:
| Complainant | Respondent |
Anonymised Parties | Quantity Surveyor | Surveying Firm |
Representatives | The claimant represented himself | Connellan Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00026591-001 | 26/02/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00026591-002 | 26/02/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00026591-003 | 26/02/2019 |
Date of Adjudication Hearing: 19/08/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 6 of the Payment of Wages Act 1991 and/or Section 27 of the Organisation of Working Time Act 1997] following 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).
Summary of Complainant’s Case:
The claimant was employed as a Quantity Surveyor with the respondent from the 16.06.2014 to the 21.12.2018.The claimant submitted the respondent was in breach of the Payment of Wages Act 1991 for failing to pay him outstanding wages of half a month’s pay and for failing to pay him for 5 days he worked at weekends in the course of his employment .The claimant asserted that 2 weeks wages were held back – the claimant contended that he was told by the office manager that he would get the 2 weeks lie in on termination of his employment.The claimant was adamant that Mr.CK the Administrator had assured him the lie in time would be paid on termination The claimant submitted the respondent was in breach of the Payment of Wages Act for failing to pay him a pay increase of €1,500 due from March 2018. The claimant asserted that he got a pay increase in March of every year – in 2018 the respondent offered him an increase of €1,500 with effect from June 2018 but the claimant contended it was never paid.The claimant submitted the respondent was also in breach of the Payment of Wages Act for failing to pay him for the following identified weekend days he worked - the 12.03.2016 , 2.06.2018,3.06.2018 1.07.2018 15.07.2018. The claimant submitted the respondent was in breach of the Organisation of Working Time Act 1997 for failing to pay him for outstanding annual leave on termination of his employment.The claimant submitted that there was never any clarity regarding overtime and time off in lieu and stated he was never furnished with a contract of employment.He stated that in August 2018 , the office manager had calculated his holidays since the commencement of his employment .The claimant stated that he had taken very few of his holiday entitlements during the course of his employment.The claimant submitted that he was due €4,572.36 for unpaid annual leave .The claimant stated that he was of the opinion that when he worked a Saturday or Sunday , he would be paid a day off in lieu.He asserted that this had already happened in the past when he had worked at weekends and got paid.The claimant stated that over his 4 years in employment he received a total of 52 holidays and that he was owed 19 days for 2018 – he asserted that in total he was owed 39 days when all outstanding leave was taken into account. .The claimant insisted he did not get an opportunity to take leave owing to the pressure of finishing deadlines.He saw no issue about carrying forward leave and assumed there would be no problem with availing of the leave and taking the time off eventually.It was not his intention to store it up – he said the opportunity to take the holidays did not arise simply because of work pressures. |
Summary of Respondent’s Case:
The respondent submitted that no pay increase was due and that the claimant received 20 days holidays per year and that no holidays were outstanding .The respondent contended that pay increases were paid in May and the claimant was offered an increase in May 2018 but this was declined by the claimant.It was submitted that the claimant was looking for more and the matter was left to the Co-Director but negotiations were never completed. It was submitted that the claimant took his holidays as and when it suited him and that there was never a payment in lieu arrangement in place.Leave was a very loose arrangement , the respondent did not have access to the files and did not know what holidays had been taken by the claimant.If overtime was worked it was paid for via time sheets.The respondent did not know anything about the lie in fortnight or payment for same .Initially it was submitted that the company was sold , that the respondent had no access to files in the office and that TUPE did not apply.At a later point in the first hearing , the respondent asserted that the business was no longer trading and that the sale of the practise did not take place.It was submitted that the claim for a payment in excess of €4,000 for annual leave was unsustainable.The respondent had no recollection of the 2 weeks lie in agreement.At the second hearing the respondent stated that the respondent was still trading in Ireland as a solo operator covering individual projects.It was submitted that when the claimant was first engaged he was advised of his holidays and annual leave entitlements.It was submitted that the claimant never asked if he could store up his annual leave. |
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.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and noted the respective position of the parties.The claimant’s complaint was received on the 26th.Feb. 2019 – accordingly , the time frame for consideration of this complaint was the 27th.August 2018 – 26th.Feb. 2019.The complaint with respect to weekend working days is consequently out of time.
Having considered the evidence of the parties and the absence of a contract of employment , I found the evidence of the claimant to be more credible than that of the respondent with respect to the matter of the lie in fortnight. Accordingly , I am upholding this element of the complaint and require the respondent to pay the claimant €1,100 compensation.
Having considered the evidence of the parties with respect to an outstanding pay increase , and in light of the fact that it was not disputed that the claimant received an annual increase , I am upholding this element of the complaint and require the respondent to pay the claimant €450 compensation for non payment of the increase from the 27th.Augusst to the date of termination on the 21.12.2018.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and note the respondent’s failure to provide any working time records in support of their assertion that the claimant had been paid his holidays in full.I accept the respondent’s contention that a claim with respect to outstanding holidays going back 4 years is unsustainable.Having considered the entirety of the submissions presented , I found the claimant’s evidence that he availed of very little leave during 2018 to be credible and accordingly I am upholding the complaint.I require the respondent to pay the claimant €2,177 for monetary value of leave lost and €500 compensation for this breach of the Act.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea