Complainant

Respondent

Anonymised Parties

Construction worker

Construction company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026091-002

06/02/2019

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

CA-00028275-001

08/03/2019

The Complainant was engaged by the Respondent to work on a specific building project. The Respondent was one of many sub-contractors working on this site. The site was managed by an overall building contractor that was not party to the complaint. The Respondent’s work related to 480 roofs.

CA -00026091-002 which is a claim under the Payment of Wages Act. This was lodged on the 6th of February 2019. The Complainant ticked two boxes one which was for inspection and one which was for adjudication. That related to “I did not receive appropriate payment in lieu of notice of termination of my employment”.

In the specifics of the complaint the Complainant elaborated that when he did receive his payslips they didn’t set out the hours worked or the rate of pay or overtime hours. He stated that some of the payslips had subsistence and travel, others did not.   The Complainant set out he did not know what was going on. On the 10th of June 2019 the Complainant submitted a further written statement for the case which was circulated to the Respondent on the 11th of June 2019.

At the hearing the Complainant raised a complaint regarding the underpayment of his wages. This arose because the Complainant was on the incorrect hourly rate of pay.

CA-00028275-001 which is a claim under the Terms and Conditions of Employment Information Act was lodged on the 8th of March 2019. It stated that the Complainant did not receive a written contract.

CA -00026091-002

The Respondent’s case is that when a fixed contract comes to its natural end there is no entitlement to notice. The Respondent was prepared to pay one week’s wages in lieu of notice giving credit for three days of Christmas holidays which were paid to the Complainant even though he was not owed these dates. The Respondent stated that the Complainant was paid in respect of Christmas Day, St. Stephens Day and New Year’s Day. The Complainant’s employment had ended on the 19th of December 2018.

The Respondent set out that the Complainant was paid the correct rate of €17.04 per hour which is the rate applicable to Category 1 construction workers.

CA-00028275-001

The Respondent’s case is that the contract was created at the start of the Complainant’s employment. It identified one of its office staff whose role it was to prepare the contracts and send them to new recruits.

The Respondent disputed my jurisdiction over matters outside of the notice and terms of employment claims.

I have reviewed the payslips furnished and note that for weeks 13, 14, 15 the Complainant was paid a net pay of €650.00. For weeks 16 to 20 he was paid a net pay of €700.00 per week.   Week 21 he was paid €560.00 net.   Weeks 22 to 23 he was paid €700.00 per week net. Week 24, 25, 28 he was paid €800.00 per week net. Weeks 27 to week 49 he was paid a net payment of €700.00 per week.   I raised with the parties as to how based on an hourly rate the Complainant could end up with a net figure that was rounded to the same amount each week. Looking at the evidence, I can only conclude that the Complainant and the Respondent agreed a weekly nett rate of pay. This is evidenced from the round figures being paid to the Complainant every week.  

The gross weekly pay of €877.04 on the Complainants pay slip to equated to a nett rate of pay of €700.00.

The Respondent stated that he was on the Category 1 worker (general operative with more than one years’ experience) rate which is €17.04.   The Complainant argued that he should be on a higher rate of pay. The next rate of pay is the Category 2 worker (skilled general operatives) of €18.36.

CA -00026091-001

A contract of employment was presented to me at the hearing. The contract was unsigned and undated. The Respondent could not furnish evidence that the contract was given to the Complainant. The contract provided was in itself defective with regard to clauses (fa), (ga) (k)(ii)(m) of the Act.

CA -00026091-002

The Complainant brought his complaint under Section 5 of the Payment of Wages Act 1991.

Section 5. of the Act sets out:

5(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.

The purpose of Notice is to provide the Complaint with time to find alternative employment. The Complainant did not receive this. He received a telephone call from the Respondent that he had no more work for him.   Notice must be certain. There must be precision of date and time.

The Complainant sought to rely on Section 5(6) of the Act in relation to his rate of pay and overtime.

Section 5(6) sets out

5(6) Where—

(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.

I note that the Complainant had representation from his union during his employment. The handwritten complaint form does not appear to have been completed by the Complainant with the benefit of advice. The complaint form is not a statutory form. It is purely administrative in nature. The Complainant in part R of the manual form lodged on the 6th February 2019 sets out some details of the complaint and makes reference to the rate of pay and overtime hours. It contained a general statement of “So I do not no [sic] what is going on”. While the Complainant did not tick the box to indicate a specific complaint in relation to unlawful deduction from his wages, I accept that by allowing the evidence on the rate of pay and shortfall of wages and overtime payment, the general nature of his complaint remains the same.

The question I must then address is whether this claim made by the Complainant relate to wages properly payable. I have considered the evidence presented to me by the parties and find that the Complainant was paid an agreed net rate of pay. I accept that the Complainant clocked in and out of the site. I do not find that the rate of €18.36 claimed by the Complainant was properly payable to him. He confirmed that he only had a ‘ticket’ to drive a dumper truck and this was not part of his role with the Respondent.

The net wage paid to the Complainant covered his requirement to be paid €17.04 for the hours that he worked. This rate of pay equated to a working week of 51.46 hours for the €877.04 gross pay.   I note that some weeks the rate of pay was higher to cover overtime.

CA -00026091-001

I find that this case is well founded. I accept the Complainants evidence that he did not receive the written statement set out in Section 3 of the Terms of Employment (information) Act 1994. I award the Complainant three weeks’ pay which amounts to €2,877.04. This is a compensation payment which is not taxable.  

CA -00026091-002

I find that this case is well founded regarding the minimum notice the Complainant should have received. I award the Complainant €700.00 being a net payment of wages deducted.

I find that the case is not well founded as the Complainants claim regarding the correct rate of pay or for overtime worked.

I have no jurisdiction as regards failure to provide payslips.

Terms of Employment. Notice payment. Wages properly payable. Section 5(6) Payment of Wages Act 1991.