Complainant

Respondent

Anonymised Parties

An Apprentice Security Operative

A Security Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00026247-001

11/02/2019

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

CA-00026247-003

11/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00026247-005

11/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026247-007

11/02/2019

The Complainant worked with the Respondent for 13 weeks. The Complainant wanted to start an apprenticeship and he thought that that was the understanding between the parties. In fact, the Employer had never signed the Complainant up to commence his Apprenticeship. The Complainant resigned and moved on.

The Complainant was disappointed that his Apprenticeship programme never got underway and believes that he was entitled to be paid the Minimum wage in circumstances where the Respondent’s obligation not to pay the Minimum Wage ( i.e. the candidate being an Apprentice) was not applicable.

The Complainant provided me with a submission and was represented by a friend/family-member in the trade.

The Respondent attended with his Accountant and provided me with a written submission.

The Complainant applied for a job advertised by the Respondent for a position of Apprentice Electronic Security Engineer. The Complainant was successful at interview and commenced his employment on the 24th of September 2018. The Complainant worked for between 12 and 13 weeks with the Respondent company. I accept that the Complainant worked at the side of a Mr. KC a senior engineer and this would be appropriate if the Complainant was serving apprenticeship time which the Complainant believed he was doing. The Complainant worked across a number of sites and worked about 40 hours of each week.

The Respondent accepted that from the outset they had missed a number of key obligations which they, as employer, were bound to observe. I was told that an incident which happened concerning another employee just prior to the Complainant’s commencement date had a significant impact on Mr. KD the owner/manager of the Respondent Employer. In consequence of this incident Mr. KD accepted that he overlooked putting in place some routine matters for the commencement of the Complainant’s employment. The Complainant was not provided with a Contract of Employment nor a Statement of Terms and Conditions of Employment. The Complainant was not receiving payslips and work schedules and was being called into employment in an ad hoc way which was unsatisfactory for the Complainant.

Most importantly, the Respondent did not register the Complainant as an Apprentice to the trade and this meant that the Complainant was working at Apprentice rates without the benefit of serving Apprentice time. The Respondent was under an obligation to so register a new Apprentice within two weeks of the commencement of the employment. The Complainant was receiving a salary of €202.00 for a forty- hour week. The Respondent conceded this was an oversight and indicated a willingness to pay the Complainant the difference between what he was being paid and what he should be getting paid. The parties further agree that the Complainant (being in the second year from the first date of employment) is entitled to be paid at a rate of 90% of the National Minimum rate of pay. The parties have agreed that he should have been paid at a per hour rate of €8.60 per hour. I am satisfied that this is the appropriate approach in the circumstances outlined to me. In total the Complainant had worked about 488 hours.

The Complainant was not able to further his claim that he was not paid for overtime hours. This claim was strongly resisted by the Respondent who insisted that the Complainant was paid for his 40 -hour week and that there was no overtime done in the three months that the Complainant worked with the Respondent. In any event, the specifics of this claim were not set out in the Workplace Relations Complaint Form and appear to have fallen under the general claim made for unlawful deductions per the Payment of Wages Act.

I note that the Complainant no longer works with the Respondent.

In the original Workplace Relations Complaint Form a number of issues were raised and which are more appropriately dealt with by the WRC Inspectorate. For example, the fact of not receiving payslips and the fact of not keeping Statutory Employment Records. These matters cannot be dealt with by me under the Adjudication process.

Pay - CA-00026247-001

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000. This complaint is well founded and pursuant to Section 26, I direct that the Respondent pay to the Complainant the differential due and owing and calculated at €1,980.00.

Pay - CA-00026247-003

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991. The Complainant did not make out any entitlement to overtime.

Pay - CA-00026247-005

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946. The parties agreed, and I accepted, that the Complainant was not an Employee to whom the Employment Regulation Order was applicable, so this claim fails.

Terms and Conditions of Employment - CA-00026247-007

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

. This claim was well-founded and I direct that the Respondent pay to the Complainant the sum of €500.00.