Complainant

Respondent

Anonymised Parties

A Senior Engineer

An Employer

Representatives

Connect Trade Union

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-00028574-001

21/05/2019

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

CA-00028574-002

21/05/2019

The complainant submits that he has not received correct payment for travel.

Within the complaint form ,the complainant also detailed a second complaint that the commencement date on his contract of employment is incorrect.

Preliminary Issue:

The complainant requested a change to the name of the respondent.

Substantive Issue:

The complainant commenced employment on 2nd October 2006 with Company A. He was out of work from September 2017 until December 2018. During this time, the respondent (Company B) took over Company A. The complainant was issued with terms and conditions by company B and the complainant raised a number of errors which he identified in the contract.   These included the spelling of his name and the date of commencement of employment.

The complainant signed the contract with the errors still contained within, as he was out of work on sick leave and had concerns about the security of his job. When he returned to work, the complainant submitted that the company have calculated travel differently to the detriment of the complainant. The contract issued to him detailed that his base was Castlebar but the respondent have calculated his base from Galway.

Despite numerous requests by the complainant to have it corrected, the respondent has refused to correct the error.

Preliminary Issue:

The respondent did not object to the request for the change in the name of the respondent.

Substantive Issue:

The respondent detailed that terms and conditions were issued to the complainant. Some errors were identified and a second contract was issued and the complainant signed the first terms and conditions that had been issued to him.

It came to the respondent’s attention that there was also another error regarding the complainant’s base for the purpose of calculating mileage.   The terms and conditions issued by the respondent detailed Castlebar when this should have read Galway. The respondent advised the complainant of the error on 12th December 2018 and advised that they would be issuing him a 3rd contract.

Correspondence was exchanged to resolve the matter but the respondent are unable to accede to the complainant’s request for the base to be Castlebar as it has always been Galway.

Preliminary Issue:

The complainant requested a change in the name of the respondent and the respondent agreed to same. For completeness I note that the respondent was not prejudiced by this change in name and have amended the respondent’s name accordingly.

Substantive Issue:

The complainant’s base during his time with Company A for the purpose of calculation of travel was Galway. When Company B took over they issued two contracts to the complainant which detailed the base as Castlebar. The respondent advised the complainant that this was an error. Section 5 provides that an employer must pay wages that are properly payable to an employee.

Having reviewed the evidence I find that the complainant’s base was always Galway and not Castlebar, I find therefore a payment based on a base of Castlebar was not properly payable to the complainant.  

I find the complaint unfounded.

Preliminary Issue:#1

The complainant requested a change to the name of the respondent.

Preliminary Issue:#2

The complainant submitted that he had two complaints submitted for hearing and that on his complaint form he had submitted that “my service time is not noted correctly” and I would be obliged if same can be considered”.

At the hearing the complainant outlined that under the Terms of Employment (Information) Acts 1994, he wished his start date to be amended.

The complainant commenced employment on 2nd October 2006 with Company A and detailed he never left.

It was submitted that the complainant raised this with the respondent numerous occasions but the respondent never corrected it.

Preliminary Issue:# 1

The respondent did not object to the request for the change in the name of the respondent.

Preliminary Issue #2:

The respondent confirmed that they had been on notice of the second complaint and had a submission prepared.

Substantive Issue:

The respondent detailed that it was their understanding, from the limited records they had, that the complainant commenced employment with Company A on 2nd October 2006 and left his employment on 21st February 2010 and was reemployed on 5th September 2010.

It was their understanding that the complainant had a received a P45 when he left in February and if the complainant had issues with this he should have raised it at the time.

Preliminary Issue: #1

The complainant requested a change in the name of the respondent and the respondent agreed to same. For completeness I note that the respondent was not prejudiced by this change in name and have amended the respondent’s name accordingly.

Preliminary Issue #2

The complainant had submitted on his claim form that “my service time is not noted correctly” and I would be obliged if same can be considered”. At the hearing the complainant’s representative detailed that this complaint should be included under the Terms of Employment (Information) Act 1994. In considering whether this complaint should be included, I note that the complaint form is not a statutory form and that the respondent was on notice of this complaint and I am satisfied that the respondent is not prejudiced by inclusion of this complaint to this decision and have allocated the reference number CA-00028574-002 to this complaint.

Substantive issue

The respondent took over from Company A and had been advised that the complainant had left for a period of time and returned in 2011. The respondent provided a P45 which detailed that date of cessation was 21st February 2010. The complainant detailed he never left Company A and although he worked at other locations for Company A, he always remained an employee of Company A.

I am satisfied that a P45 does not of itself prove termination of employment as has been established previously including in RPD197 Glenbeigh Fire & Floord Ltd v Anita Olejniczak . Having heard the evidence of the complainant and the respondent and taking into consideration that this issue was raised early on by the complainant, I prefer the evidence of the complainant.

Pursuant to Section 7(2)(a) I declare that the complaint is well founded.   Pursuant to Section 7(2)(b)(ii) I hereby alter the statement of the complainant’s start date, for the purpose of correcting an inaccuracy in the statement, such that the start date should be   2nd October 2006.

CA-00028574-001

I declare the complaint was not well unfounded.

CA-00028574-002

I declare that the complaint is well founded.   Pursuant to Section 7(2)(b)(ii) I hereby alter the statement of the complainant’s start date, for the purpose of correcting an inaccuracy in the statement, such that the statement of the complainant’s start date should be 2nd October 2006.

Payment of wages, terms of employment