ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012471
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Construction Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00016441-001 | 20/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00016448-001 | 20/12/2017 |
Date of Adjudication Hearing: 02/07/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 7 of the Terms of Employment (Information ) Act , 1994 and/or Section 6 of the payment of Wages Act 1991] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant was employed as a Stone Cladder by the respondent from the 25th.Oct. 2016 to the 9th.Sept. 2017 It was submitted that the respondent at no stage indicated that the claimant worked for anyone other than the respondent.It was submitted that in the respondents documentation to the WRC on the 24th.January 2018 , the respondent responded to the claim to the effect that” did not give Terms of Employment as they did not look for them at any stage or at time of employing them .”It was submitted that the respondent was in breach of Section 3 of the Terms of Employment (Information) Act 1994 and the complaint should be upheld. It was submitted that the respondent provided payslips infrequently and that the respondent reneged on payment for the claimant during the period from the 18th.August 2017 to the 9th.Sept. 2017.At this point the claimant submitted that in the absence of payment for this period he had no alternative but to terminate his employment. The claimant categorically denied any changeover to another employer and was never made aware of any material change to their employment status.It was submitted that the respondent was liable for all wages due from the 19th.August 2017 - 9th.September 2017 - €1755 as well as for holiday pay amounting to €2005.60. |
Summary of Respondent’s Case:
The respondent did not dispute that the claimant was not furnished with written terms and conditions of employment when he attended at the first hearing on the 7th.Feb. 2018. In response to the referral of the complaint to the WRC , the respondent asserted that the claimant and his colleagues ceased working for the respondent on the 18th.August 2017 and “ were then to be employed by X contractors directly and any wages due after this date are between them and X contractors”. At the first hearing the respondent indicated that he was amenable to settling the complaint and engaged in direct discussions with the claimant’s representative with a view to reaching a mutually acceptable agreement.In May 2018, the respondent wrote to the WRC seeking an extension of the adjournment to allow him additional time to implement the settlement terms.In July 2018 , the respondent wrote to the WRC , submitted copies of correspondence and invoices between Contractor X and Contractor Y and asserted that the claimants had been paid for the period at issue by Y contractors and that accordingly any dispute about the payment was outside of his control. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Terms of Employment (Information) Act 1994
The respondent did not dispute the claimant’s assertion that he was not furnished with written terms and conditions of employment “ as they did not look for them at any stage or at time of employing them”. Accordingly , I am upholding the complaint and I require the respondent to pay the claimant €1,800 compensation.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The first hearing was adjourned to allow for implementation of a settlement agreed directly between the parties. However , the settlement terms were not implemented and accordingly the hearing was reconvened to complete the investigation of the complaint. I am satisfied that the respondent was duly notifed of the arrangements for the reconvened hearing on the 2nd.July 2019.The respondent did not attend the hearing .
The claimant’s representative submitted documentary evidence to the WRC including documentation between Contractor X and Contractor Y referring to a payment having been made by Contractor X to Contractor Y for the claimant and his 2 colleagues for the disputed period .
In his direct evidence at the hearing the 2nd.July 2019 , the claimant categorically denied receiving any such payment and submitted details of bank statements in support of his assertion that he was never paid for the disputed period. I note that the document dated the 10th.Sept. 2018 between Contractor X and Contractor Y that was submitted by the claimant’s representative confirms that the workers in dispute were employees of the respondent. On the basis of the uncontested direct evidence of the claimant presented at the hearing on the 2nd.July 2019 I find on the balance of probabilities that the complaints of non payment of wages and non payment of holidays to be well founded. I require the respondent to pay the claimant €1,755 compensation for unpaid wages and €2005.60 for unpaid holidays.
Dated: 20/09/19
Workplace Relations Commission Adjudication Officer: Emer O'Shea