Complainant

Respondent

Anonymised Parties

A Plumber

A Heating and Plumbing Contractor

Representatives

The Complainant attended the Hearing in person and was not represented

The Respondent did not attend the Hearing and was not represented

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-00019557-001

01/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00019557-002

01/06/2018

The Complainant was employed by the Respondent as a plumber from 12 February, 2018 until 21 May, 2018 when he was summarily dismissed from his employment. The Complainant worked an average of 39 hours per week and was paid a net weekly wage of €680.57 (€920.40 gross).

The Complainant claims that the Respondent failed to pay his outstanding holiday entitlements, payment in lieu of notice, payment in respect of holiday entitlements and payment in respect of hours worked on the termination of his employment. The Complainant contends that this constitutes unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Complainant also claims that he was subjected to penalisation for having made a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act, 2014.

CA-00019557-001 - Complaint under the Payment of Wages Act, 1991

The Complainant submits that he was employed by the Respondent as a plumber for a period of 15 weeks. The Complainant was informed by the Respondent on 21 May, 2018 that his employment was being terminated with immediate effect. The Complainant sent a message to the Respondent via WhatsApp explaining that he was owed outstanding pay in respect of hours worked, holiday pay, pubic holiday entitlements and payment in lieu of notice. The Complainant subsequently received his P45 and final payslip from the Respondent on 24 May, 2018 but noticed that he had not been paid in respect of the following entitlements, namely;

·         Payment in lieu of notice of one week,

·         Payment in respect of the upcoming June Bank Holiday,

·         6.8 hours holiday pay which he had accrued,

·         1.5 hours pay in respect of hours worked.

The Complainant sent an e-mail to the Respondent on 24 May, 2018 outlining the shortfall in his entitlements and requesting that the matter be rectified. However, the Respondent failed to make payment to him in respect of his outstanding entitlements. The Complainant contends that the Respondent’s failure to pay these entitlements constitutes unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00019557-002 – Complaint under the Protected Disclosures Act, 2014

The Complainant claims that he was subjected to penalisation for having made a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act, 2014.

The Complainant submits that he informed the Respondent via WhatsApp on the Thursday prior to his dismissal that he was entitled to certain terms and conditions such as sick pay, death in service benefit and pension entitlements under the new SEO for the Mechanical Engineering Building Services Contracting Sector. The Complainant submits that he was subsequently informed by the Respondent on 21 May, 2018 that his employment was being terminated with immediate effect.

The Complainant contacted the Respondent by WhatsApp message on this date and subsequently by e-mail on 24 May, 2018 to request payment of his outstanding pay and holiday entitlements. The Respondent replied by e-mail dated 29 May, 2018 and stated that his employment had been terminated by reason of gross misconduct for allegedly stealing a towel rail from a house on the site where he had been working. The Complainant stated that he was aware that a towel rail had been reported missing from one of the houses they had been working in on 16 May, 2018. However, the Complainant contends that he was working on a different job that day and had confirmed to the Respondent that he hadn’t taken the towel rail when questioned in relation to the matter.

The Complainant contends that he was summarily dismissed without having recourse to any proper investigation or procedures. The Complainant emphatically denies that he had stolen the towel rail and contends that the reason for his dismissal was because of the fact that he had been highlighting to the Respondent its legal obligations in relation to rates of pay as set out in the SEO for the sector.

CA-00019557-001 - Complaint under the Payment of Wages Act, 1991

The Respondent did not engage with the WRC in relation to the instant complaint.

CA-00019557-002 - Complaint under the Protected Disclosures Act, 2014

The Respondent did not engage with the WRC in relation to the instant complaint.

CA-00019557-001 - Complaint under the Payment of Wages Act, 1991

The Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

                “wages”, in relation to an employee, means any sums payable to the employee by the                 employer in connection with his employment, including—

                                (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other                                 emolument, referable to his employment, whether payable under his contract of                                 employment or otherwise, and

                                (b) any sum payable to the employee upon the termination by the employer of his                                 contract of employment without his having given to the employee the appropriate                                 prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(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,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant was employed by the Respondent from 12 February, 2018 until the termination of his employment on 21 May, 2018. The Complainant referred this complaint to the Director General of the WRC on 1 June, 2018. Therefore, the entire period of the Complainant’s employment falls within the cognisable period for the purpose of the within complaint.

The issue for decision in relation to the Complainant’s claim is whether the Respondent made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to outstanding holiday pay, hours worked, payment in lieu of notice and public holiday entitlements on the termination of his employment. In considering this issue, I must first decide whether the claimed unlawful deductions were in fact “properly payable” to the Complainant within the meaning of Section 5 of the Act.

The Complainant has claimed that the Respondent failed to pay him in respect of the following entitlements which he had accrued on the termination of his employment, namely;

·         6.8 hours holiday pay which he had accrued,

·         Payment in respect of the June Public Holiday,

·         Payment in lieu of notice of one week,

·         1.5 hours pay in respect of hours worked.

In relation to the claim in respect of outstanding holiday pay, I note that the Complainant adduced evidence that he did not take any paid annual leave during his period of employment and he presented payslips in evidence to confirm that he was paid for a total of 39.96 hours holidays following the termination of his employment. The Complainant was employed by the Respondent from 12 February, 2018 until 21 May, 2018 which is a total of fourteen weeks and one day. The Complainant worked an average of 39 hours per week which amounts to a total of 553.8 hours worked during his period of employment. Accordingly, I find that the Complainant had accrued an entitlement to annual leave during the period of his employment which equated to 44.30 hours (i.e. 8% of 553.8 hours worked) in accordance with the provisions of Section 19(1)(c) of the Act. Therefore, I find that the Complainant had an outstanding balance of 4.34 hours annual leave entitlement which were properly payable to him following the termination of his employment.

In relation to the claim in respect of his outstanding public holiday entitlements, I note that Section 23(2) of the Organisation of Working Time Act, 1997 provides that:

“(2) Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day’s pay calculated at the appropriate daily rate.”

The Complainant’s employment terminated on 21 May, 2108 and the June Public Holiday fell on 4 June, 2018. Having regard to the provisions of Section 23(2) it is clear that the Complainant’s employment did not cease during the week ending on the day before the June public holiday. Accordingly, I find that the Complainant was not entitled to pay in respect of the public holiday in June, 2018 on the termination of his employment.

In relation to the claim in respect of statutory notice, I find that the Complainant was summarily dismissed from his employment without notice on 21 May, 2018. Accordingly, I find that the Complainant is entitled to one-week statutory notice on the termination of his employment.

In relation to the claim in respect of hours worked, I find that the Complainant was entitled to payment in respect of 1.5 hours which were unpaid on the termination of his employment.

Having regard to the foregoing and based on the uncontested evidence of the Complainant, I find that the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Act. Accordingly, I find that the complaint is well founded.

CA-00019557-002 - Complaint under the Protected Disclosures Act, 2014

The instant complaint has been presented to the Director General of the WRC in accordance with the provisions of Section 41 of the Workplace Relations Act 2015 (as amended) and the Complainant has sought redress under the provisions of Schedule 2 of the Protected Disclosures Acct 2014 in respect of alleged penalisation contrary to Section 12(1) of that Act for having made a protected disclosure.

It was not clear from the information contained on the Complaint Referral Form as to the precise nature of the penalisation within the meaning of Protected Disclosures Act 2014 which the Complainant contends occurred as a result of having made a protected disclosure. I sought clarification from the Complainant in relation to this matter at the oral hearing and he confirmed that the actual act of penalisation in respect of which he is seeking redress in the instant complaint was the alleged unfair dismissal for having made a protected disclosure.

Section 12(2) of the Protected Disclosures Act 2014 provides that:

“(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.”

Section 6 of the Unfair Dismissals Acts provides that:

“6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure”.

Section 8 of the Unfair Dismissals Acts provides that:

“8.— (1)(a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.”

Having regard to the aforementioned legislative provisions, it is clear that an employee seeking redress relating to an alleged unfair dismissal arising wholly of mainly from having made a protected disclosure is obliged to refer his/her complaint to the DG of the WRC under the provisions of Section 8 of the Unfair Dismissals Acts and that such a claim does not fall within the scope of Section 12(1) of the Protected Disclosures Act, 2014.

I am satisfied that the only complaint which the Complainant has presented to the DG of the WRC and which has been referred to me for adjudication is the complaint of penalisation contrary to Section 12(1) of the Protected Disclosures Act, 2014. However, having regard to the fact that this complaint relates exclusively to a claim in respect of unfair dismissal for having made a protected, it has clearly been referred to the DG of the WRC under the wrong statute. Accordingly, I find that I do not have jurisdiction to inquire into the Complainant’s claim relating to unfair dismissal for having made a protected disclosure under the provisions of Section 12 of the Protected Disclosures Act, 2014.

CA-00019557-001 - Complaint under the Payment of Wages Act, 1991

I find that the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the following amounts in compensation for the unlawful deductions:

·         €26.17 net in respect of wages due and not paid on termination of the employment,

·         €680.57 net in respect of one week’s statutory payment in lieu of notice due on the termination of his employment, and

·         €102.42 gross, subject to any lawful deductions in respect of annual leave due and not paid on termination of the employment.

CA-00019557-002 - Complaint under the Protected Disclosures Act, 2014

I find that I do not have jurisdiction to inquire into the Complainant’s claim of penalisation relating to unfair dismissal for having made a protected disclosure under the provisions of Section 12 of the Protected Disclosures Act, 2014.

Payment of Wages Act 1991 – Section 5 – Unlawful Deductions – Protected Disclosures Act 2014 – Section 12 – Penalisation – No Jurisdiction