ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00019375
Parties:
| Complainant | Respondent |
Anonymised Parties | A construction worker | A construction firm |
Complaints:
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-00025289-002 | 25/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00025289-003 | 25/01/2019 |
Date of Adjudication Hearing: 15/03/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 25th January 2019, the complainant referred complaints pursuant to the Payment of Wages Act and the Organisation of Working Time Act. The complaints were scheduled for adjudication on the 15th March 2019.
At the time the adjudication hearing was scheduled to begin, it was apparent that there was no attendance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication. Having taken this step, I proceeded with the hearing in the absence of the respondent. I have taken account below of the respondent’s submission of the 6th February 2019.
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Summary of Complainant’s Case:
The complainant said that he worked for the respondent between the 9th May and the 25th October 2018. The role related to construction groundwork. He did not receive a contract of employment or wage slips. He said that he was entitled overtime for hours worked beyond 39 hours. He worked 12.5 hours per week over-time, accruing a loss of €2,044.80.
In respect of annual leave, the complainant said that he did not take any paid annual leave during his employment. The respondent paid him €650 but the complainant was owed more.
By letter of the 15th February 2019, the complainant replied to the respondent’s submission. He says that staff filled in time sheets every day, which were submitted by the site manager to the respondent. The complainant acknowledges payment of his basic pay but asserts that he is owed overtime. He submits that the respondent would not have paid him at all, had there not been any time sheets. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication. By letter of the 6th February 2019, the respondent stated that the complainant had been paid in full during his time working for the respondent. It denied that the complainant worked excessive hours and asked for the time sheets. It states that the complainant refused to submit completed time sheets. It says that the complainant left without giving notice. |
Findings and Conclusions:
The Construction Sector SEO 2017 (SI 455/2017) was in force at the time of this employment.
CA-00025289-002 This is a complaint pursuant to the Payment of Wages Act. The complaint addresses the issue of overtime and this is the issue addressed by the respondent in the correspondence of the 6th February 2019.
At the hearing, the complainant raised a new issue: his entitlement to the Category 2 level of pay per the SEO. He was paid the Category 1 rate of €17.04 per hour, instead of the €18.36 payable to a Category 2 worker. This issue is entirely new. Even if the respondent had attended the hearing, it would have been problematic to address the issue, given that it is one of evidence relating to the skills required for a Category 2 construction worker. This is also a significant matter, as it relates to a shortfall of €1.32 for every hour worked. I, therefore, do not make findings in respect of the Category 2 issue.
In respect of the overtime claim, I find that the complaint is well-founded. The complainant gave a cogent account of regularly working the overtime. It is entirely plausible that the site manager submitted the time sheets, as he outlined, as how else would the complainant and his colleagues have been paid. I award the complainant the amount sought in overtime: €2,044.80.
CA-00025289-003 This is a complaint pursuant to the Organisation of Working Time Act. The complainant worked for the respondent for 24 weeks. He has a pro-rata entitlement to annual leave of 9.2 days’ annual leave. The complainant did not take annual leave while working for the respondent. He acknowledges receipt of €650. He is therefore entitled to €701.30 in outstanding annual leave. Given that annual leave is a health and safety measure derived from EU law, I award the complainant an additional €300 in damages. The total to be paid by the respondent to the complainant in respect of this complaint is, therefore, €1,001.30. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00025289-002 I find that the complaint pursuant to the Payment of Wages Act is well founded and the respondent shall pay to the complainant redress of €2,044.80.
CA-00025289-003 I find that the complaint pursuant to the Organisation of Working Time Act is well founded and I award damages of €1,001.30, which is damages for a contravention of the statute and not arrears in wages.
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Dated: 26th June 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Construction Sector SEO Overtime / Payment of Wages Organisation of Working Time Act / annual leave |