FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : EDMUND LAVIN SERVICES LTD (REPRESENTED BY GILVARRY & ASSOCIATES) - AND - MR MALACHY MCDONNELL (REPRESENTED BY MR JOHN CURRAN) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No(S). ADJ-00019667 CA-00026091-002.
BACKGROUND:
2. The Employee appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on the 10 December 2019. The Court heard the appeal on the 27 February 2020.
DETERMINATION:
This is an appeal on behalf of Mr Malachy McDonnell from a decision of an Adjudication Officer ADJ-00019667, CA-00026091-002 under the Payment of Wages Act 1991 (‘the Act’) against his former employer Edmund Lavin Services Limited. The claim was referred to the Workplace Relations Commission on 6 February 2018. A hearing was held on 2nd September 2019 and the Decision was issued on 19th November 2019. The Notice of Appeal was received by the Court on 10th December 2019.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Malachy McDonnell will be referred to as “the Complainant” and Edmund Lavin Services Limited will be referred to as “the Respondent”.
The Adjudication Officer found in favour of part of his claim and awarded him the sum of €700.00 in respect of a claim that he was not given his appropriate notice entitlement. This aspect of the Complainant’s claim was not contested by the Respondent. The Adjudication Officer did not uphold his claim in respect of a claim that he was not paid the correct rate of pay nor paid for overtime worked.
Background
The Complainant was employed as a General Operatives by the Respondent from March 2018 until 19thDecember 2018, working on a major construction site in Longford. The Complainant claimed that he is owed monies due to a failure by the Respondent to pay him an agreed rate of €18.36 per hour and secondly due to the number of overtime hours he worked.
The Respondent disputed the Complainant’s contentions stating that there was no agreement to pay him €18.36 per hour. He was paid the appropriate General Operative rate of pay, €17.04 per hour. On the second issue, the Respondent said that it correctly applied the terms of the Sectoral Employment Order (SEO) for the Construction Sector, S.I. 455/2017, which stated that an unsocial hours’ payment should be paid after “normal finishing times”, and the Complainant did not work in excess of his normal finishing times in the cognisable period covered by the claim.
Summary of the Complainant’s Case
The Complainant was unrepresented at the hearing. He gave evidence under oath to the Court. He told the Court that his normal working hours were 7.00am to 7.00pm Monday to Friday and 7.00am to 3.00pm on Fridays, earning €17.04 per hour. He said that the Respondent, Mr Edmund Lavin had asked him to come and work for him, so he had left another job to join the company. He said after a few weeks he spoke to Mr Lavin and asked for a higher rate of pay and it was agreed to pay him a Category 2 rate, €18.36 which applies to skilled workers in the construction sector. He said that his rate of pay increased at that point, however, as he was not receiving payslips, he did not know how his hourly rate was calculated. In June 2018 he said that he sought payslips and received four payslips, however, it was not until after he had left the company in December 2019 that he reckoned that he was owed monies.
In cross examination he accepted that his normal working hours were 51 ½ hours per week, excluding breaks.
Summary of the Respondent’s Position
Mr Gary Mulchrone, Solicitor, Gilvarry & Associates Solicitors on behalf of the Respondent denied the claims and submitted that there was never an agreement to increase his rate to €18.36 as this was not an appropriate rate for the work he was employed to do. Furthermore, he submitted that in accordance with the Construction Sector SEO, the Respondent was paying the correct rate of pay and the correct payment in terms of hours worked.
Witness Testimony of Mr Edmund Lavin, Owner of the Respondent
Mr Lavin said that he employed 60 employees in six different construction sites. He denied the allegation that he had a conversation about paying the Category 2 rate to the Complainant, he said that he did agree to increase his weekly rate of pay if he changed his normal hours on a Friday. Originally the Complainant’s hours were 7.00am to 2.00pm on a Friday and they were changed to 7.00am to 3.00pm. This resulted in an increase in his weekly pay for the Complainant. The witness said that the Complainant’s hours of work were not recorded so therefore he was given the benefit of the doubt that he consistently worked the normal hours of work and his accountant’s office organised the payroll. He said that employees were entitled to payslips on request either to be sent to their email addresses or in the post.
The witness said that at no point in the Complainant’s employment had he raised a grievance concerning his rate of pay. He said that when the work was completed on the site in Longford, he offered the Complainant work elsewhere in other sites, but it did not suit him.
Mr Lavin said that he was satisfied that he complied with the terms of the SEO in respect of the appropriate rate of pay to pay the Complainant and the payment to apply in respect of normal working hours. He said that the normal working hours were 7.00am to 7.00pm Monday to Friday and 7.00am to 2.00pm on Fridays. He accepts that since the new SEO in the Construction Sector he now pays unsocial hours payments after 39 hours per week.
The Applicable Law
The Act at section 5 provides in relevant part as follows
- 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.
- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
“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,
- (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
Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. Consequently, the Court must turn to a consideration of the amount that was properly payable to the Complainant in the six-month period covered by the claim, i.e. from 7th August 2018 until 19th December 2018, when his employment terminated.
Findings and Conclusions of the Court
The Complainant contended that an underpayment had occurred in the cognisable period as he was not paid the appropriate rate of pay and was entitled to an unsocial hour’s payment after 39 hours. The Court notes that it is not disputed that the Complainant consistently worked 51½ hours per week, excluding breaks, in that period. This may have given the Complainant a cause of action against the Respondent under section 15 of the Organisation of Working Time Act 1997, but no such claim was brought and there is no such claim before the Court.
The Court was presented with a conflict of evidence in relation to a conversation which took place between the Complainant and the Respondent, a few weeks into his employment, concerning his request for more earnings. From the details supplied to the Court, it is clear that his net weekly pay increased from week four of his employment. In examining the weekly pay from the commencement of the cognisable period, it is evident that he was consistently paid a rate of €17.04 for 51½ hours each week, until his final week when he only worked three days that week. On that basis and as he did not raise this matter as a grievance with the Respondent until after his employment terminated, even though he received four payslips in June 2018, the Court must conclude that there was no agreement to pay him an hourly rate of €18.36. Furthermore, the increase in his net pay appears to comply with the Respondent’s assertion that his weekly hours of work were increased from week four onwards, by the requirement to work an extra hour on Fridays for which he was paid an increase in his weekly pay. On that basis, the Court finds that the Complainant was required to work one hour per week in excess of his normal working time.
Having examined the provisions of the SEO for the Construction Sector, S.I. 455/2017, which came into effect on 1st October 2017, the Court notes that there is no provision contained therein for “normal working hours” and no provision for “overtime”. The statutory instrument has a clause on“Unsocial Hours Payments”, which provides as follows:-
- Monday to Friday Normal finishing time to midnight time plus a half
Saturday First four hours’ time plus a half; all subsequent hours till midnight double time
Sunday All hours worked double time
Public Holidays All hours worked double time plus an additional day’s pay
The Court notes that the current SEO for the Construction Sector, S.I. 234/2019, operative from 31st May 2019 contains a clause on“Normal Working Hours"and
"Overtime Payments”.
When considering this claim the Court must have regard to the relevant statutory provision applicable at the material time. As S.I. 455/2017 simply provided that an unsocial hour’s payment was applicable after normal finishing time, then the Court finds that the Complainant exceeded the normal working time by one hour per week during the cognisable period. Therefore, the Court finds that the total amount of wages properly payable to the Complainant was €885.56 per week, consequently there was a deficiency or non-payment of €8.52 per week which the Court is satisfied was a deduction under the Act by the Respondent.
On that basis, the Court directs the Respondent to pay the Complainant the sum of €161.88 by way of compensation for unpaid wages in the period from 6th August to 19th December 2018.
Determination
The Complainant’s appeal is allowed in part and the decision of the Adjudication Officer is set aside and substituted with this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
6 March 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.