Complainant

Respondent

Anonymised Parties

A Driver

A Haulage Company

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00023508-001

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023508-002

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023508-003

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023508-004

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023508-005

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023508-006

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023508-007

24/11/2018

The Complainant was employed by the Respondent from 17th January 2018 to 19th September 2018.

He referred his complaint to the WRC on 24th November 2018.

Some two hours prior to the commencement of the hearing, the Respondent informed the WRC that due to unforeseen circumstances beyond his control he could not attend the hearing. The Respondent was requested by return email to forward evidence and supporting documents if he wished the case to be reheard on another date. The Respondent was informed of the requirements in respect of postponement application by way of the letter dated 26th March 2019 outlining the details of the adjudication hearing. The letter states as follows:

“It should be noted that a postponement of the hearing will only be granted in exceptional circumstances and for substantial reasons. Applications for postponement should be made in writing to the Commission’s Adjudication Services at the earliest possible date (by email to pru@workplacerelations.ie will suffice) setting out the full reasons for the application and must be accompanied by the relevant supporting documentation.”

The Respondent advised during the telephone conversation and in the email exchange that his wife, who normally looks after their children, is accompanying his father in law who was receiving cancer treatment in hospital on the day. The Respondent, therefore, was required to look after his children on that particular day. The Respondent was informed that it is up to a party requesting a postponement to submit any evidence in support of their request. He declined to do so and suggested the WRC contact the hospital to seek relevant information.

The Respondent did not engage with the WRC at any stage prior to the hearing day, he did not apply for a postponement and did not indicate any difficulties attending the hearing. He was given an opportunity to provide relevant evidence in support of his request to have the case reheard. He did not do so.

In his WRC Complaint Form the Complainant submitted that he did not receive the minimum rate of pay set out in a Sectoral Employment Order.

At the hearing the Complainant confirmed that this claim was submitted in error.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

I declare this complaint not well founded.

I declare this complaint not well founded.

The Complainant submits that he did not receive his public holiday entitlements for public holidays falling in March, April, May, June and August 2018. The Complainant submits that he worked on each of these public holidays and his daily rate of pay was €130 net a day.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act, 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 24th November 2018. Therefore, the cognisable period that may be investigated is from 25th May 2018.

Section 21 of the Organisation of Working Time Act, 1997 provides that: (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely

Based on the uncontested evidence of the Complainant I find this complaint to be well-founded. I direct the Respondent to pay the Complainant €260 net in respect of Public Holiday entitlements for the public holidays falling in June and August 2018.

In addition, I direct the Respondent to pay the Complainant an additional €300 in compensation for breach of his rights under this Act.

The Complainant submits that during his employment he did not receive any of his annual leave entitlements and no compensation in respect of same was paid to him on cessation of employment.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23. “Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year, or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.”

The Complainant submitted evidence that he worked for the Respondent for 35 weeks in total and was paid €650 net a week. Having regard to section 23 of the Act, I find that the Complainant is owed €1,820 net in respect of the accrued annual leave.

Based on the uncontested evidence of the Complainant I find this complaint to be well-founded. I direct the Respondent to pay the Complainant €1,820 net in respect of annual leave entitlements accrued.

In addition, I direct the Respondent to pay the Complainant an additional €1,500 in compensation for breach of his rights under this Act.

The Complainant submits that he worked an additional day on 4th September 2018 and was not paid for it on the pay day 13th September 2018. He claims that he is owed €130 net in that regard.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Based on the uncontested evidence of the Complainant I find that he is due €130 net in respect of work performed on 4th September 2018.

I declare this complaint well founded and order the Respondent to pay the Complainant €130 net.

The Complainant submits that he worked an additional day on 12th September 2018 and was not paid for it on the pay day 20th September 2018. He claims that he is owed €130 net in that regard.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Based on the uncontested evidence of the Complainant I find that he is due €130 net in respect of work performed on 12th September 2018.

I declare this complaint well founded and order the Respondent to pay the Complainant €130 net.

The Complainant submits that the Respondent made unlawful deductions from his wages. The Complainant submits that between 13th June and 21st July 2018 he worked from Dublin. He was requested by the Respondent to commute and the Respondent undertook to refund the commute cost at €90 per week. The Complainant submits that he forwarded all bills and receipts to the Respondent but did not receive the refund.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Section 1 of the Payment of Wages Act 1991 provides 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

I find that the Payment of Wages Act, 1991 does not cover the payment of expenses. The money that formed the basis on which this claim was founded amounted to a refund of expenses incurred in carrying out employment rather than remuneration that was properly payable to the Complainant.

Accordingly, I find that I do not have the jurisdiction to hear this complaint.

I find that I do not have the jurisdiction to hear this complaint.

The Complainant submits that the Respondent made unlawful deductions from his wages. He claims that during his employment he had to cover various payments in the UK using his own funds such as toll, petrol etc. He submitted all the relevant records to the Respondent, totalling €1,953,48. He claims that €1,330 was refunded to him. However, he is still owed €622.98.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

The definition of “wages” as per Section 1(1) of the Payment of Wages Act is outlined above.

The Act affords protections to workers against unlawful deductions of money ‘properly payable’ to them. From evidence presented, it appears that the expense in question related to the purchase of fuel for a company vehicle and payment of tolls. Having carefully considered all the evidence adduced in relation to this element of the Complainant’s claim, I am satisfied that the claim is related to the issue of expenses. Consequently, based on the provisions of the Act, as set out at Section 1 (1)(i) above, I find that I have no jurisdiction to hear the Complainant’s claim in this regard.

I find that I have no jurisdiction to hear this complaint.

Annual leave-public holidays- non-payment of wages- expenses