PWD2026

1.Appeal of Adjudication Officer Decision No.ADJ-00012560,CA-00016396-001

BACKGROUND:

2.The employeee 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 27^thSeptember 2019.The Court heard the appeal on the 1st September 2020.

DETERMINATION:

This is an appeal by Mr Cristian Balasa against Decision ADJ-00012560,CA-00016396-001 of an Adjudication Officer in a complaint against his former employer Hydraulic Hose Services Limited t/a Pirtek. The complaint relates to alleged contravention of the Payment of Wages Act 1991 (the Act) as he claimed that he was not paid for the period from February 2016 until 31^stAugust 2017 or was only paid occasionally during this period. The Adjudication Officer, at three separate sittings of the case, made a Decision on 5th September 2019 and found the complaint not well founded. The Complainant was legally represented at two of the sittings before the Adjudication Officer, both of which were adjourned for various reasons. He was unrepresented at the third hearing.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Cristian Balasa is referred to as “the Complainant” and Hydraulic Hose Services Limited t/a Pirtek is referred to as “the Respondent”.

The Complainant referred his complaint under the Act to the Workplace Relations Commission on 19^thDecember 2017, along with claims under the Organisation of Working Time 1997 and the Terms of Employment (Information) Act 1994 - 2014.

The Complainant appealed the Adjudication Officer’s Decision on 27^thSeptember 2019.

Background

The Complainant’s employment commenced with the Respondent in October 2007 as a Mobile Service Sales Technician, he ceased his employment on 31^stAugust 2017.He was paid €30,000 per annum plus a commission payment in the event that his sales exceeded €10,000 in a calendar month. Commission was paid at a rate of 8% on sales above €10,000.

Preliminary Issue – Personal Injury Claim before the High Court

It was pointed out to the Court that the Complainant has a personal injury claim before the High Court concerning an accident in January 2016 involving the Complainant driving a company van on duty. As the claim before the Court relates to a claim for loss of earnings, at the outset of the hearing, the Court clarified the status of the High Court claim and whether or not both parties were willing to pursue the claims before the Court pursuant to the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997. The Court made it clear to both parties that the outcome of the instant case could potentially be prejudicial to either or both sides in the case before the High Court. The Court provided a period of reflection for the parties to consider this point. The Court was conscious of the fact that the Complainant appeared as an unrepresented party and accordingly, explained the implications of the cases proceeding before it. It offered both parties the option of adjourning the hearing until after the High Court proceedings. Following a recess, both parties made it clear to the Court that they were willing to proceed with the hearing before the Court.

Preliminary Issue – Time Limit and Application for an Extension of Time

Ms Lisa Weatherstone, B.L, Peninsula Business Services Limited, on behalf of the Respondent raised a preliminary issue contending that the Complainant’s complaint under the Act referred to the Workplace Relations Commission, was out of time. The Complainant sought an extension of time in accordance with the provisions of section 41(8) of the Workplace Relations Act, 2015.

In reference to the Complainant’s application to extend time, Ms Weatherstone stated that no application for an extension of time had been made by the Complainant (or his representative) prior to or at the hearing before the Adjudication Officer. This point was not disputed by the Complainant.

The cognisable period covered by the claim is the six-month period from 20^thJune 2017 until 19^thDecember 2017.

The Workplace Relations Act 2015 (the 2015 Act) provides at section 41(6) as follows:

• (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

• (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

For these reasons the Court cannot identify any justifiable basis upon which an extension of time could be granted in this case, therefore, the Complainant’s application is denied.

Cognisable Period Encompassed by the Claim

Based on its findings above, the cognisable period encompassed by the claim under the Act is confined to the period from 20^thJune until 31^stAugust 2017.

Position of the Parties and Evidence Tendered

The Complainant gave evidence to the Court. He claimed that he was not paid or only paid occassionally by the Respondent for work done between 1^stFebruary 2016 and 31^stAugust 2017. He said that he was available for work and actively sought work from the Respondent. He told the Court that from 1st January 2017 until 31st August 2017 he was medically certified as being unable to drive following an accident incurred in January 2016. As his normal job required him to drive, he said that he either worked from home or was given lifts by a named colleague (Mr M) when he worked on a site in Cavan. He also said that he worked on the Tara Mines site and on the Kilsaran site in Kilmessan. He produced references from the latter two sites.

Ms Weatherstone denied these allegations and stated that the Complainant was on unauthorised leave during this period, he did not submit any medical certificates and was uncontactable. She said that the references referred to by the Complainant were checked and found to be fraudulent.

Mr Ken Robertson, Managing Director, gave evidence on behalf of the Respondent. In his evidence he said that the accident incurred by the Complainant in the course of his work in January 2016 was a minor accident. He said the Complainant went out sick in November 2016. He tried to make contact with him. When he called to his house and spoke to him about his illness, the Complainant sought to put his GP on the phone to talk to him, however, his GP (naturally) would not discuss her patient with Mr Robertson. He said that the Complainant then sought to fund raise for medical expenses to be incurred abroad for an aneurism, by contacting the Respondent’s customers. The witness said that the Complainant failed to produce any medical certificates in 2017 and all efforts to contact him failed, until he came to resign on 31^stAugust 2017.

Mr Robertson said that at the end of December 2016, he sought the return of the company’s mobile phone which had been supplied to the Complainant, as he continued to be unavailable for work. Therefore, the only means of assigning work to him had been removed. He denied that the Complainant had contacted him seeking employment and said that the work in Cavan referred to when the Complainant was given a lift to the site by Mr M. was carried out in April/May 2016 and not in 2017. Mr Robertson said that when he retrieved the company phone, he transferred all calls to his own phone and discovered that the Complainant was carrying out ‘nixers’ which is now part of a separate investigation. He said that the last time he had any contact with the Complainant (prior to the hearing before the Adjudication Officer) was the day the Complainant arrived at the company premises to resign, on 31^stAugust 2017.

At the Court's request, the Respondent produced copies of the T-Card System showing details of work carried out in the period from September 2016 until March 2017. This system records time arrived on site, products used and the time the work finished. In his evidence to the Court, Mr Robertson said that this information had been completed on a hand-held device, until it was transferred to the company supplied phone and completed on an App on that phone. The changeover occurred about three years ago. In his evidence, the Complainant said that in 2017 he recorded his work on a hand-held device.

The reports supplied to the Court show that the Complainant carried out work for the Respondent in 2016, however, there are no entries in the Complainant’s name for any work in 2017. Further reports were supplied showing work for 2017 in the companies mentioned by the Complainant for work he alleged he completed in 2017, however, the Complainant is absent from all reports generated in 2017. The Respondent also submitted copies of letter written at the end of February 2017 to its customers by the Complainant seeking financial support for an operation he intended to have for a serious medical condition. The letter stated“I am making an appeal for help so I can return to work”. These documents support the Respondent’s position that the Complainant did not work for the Respondent in 2017.


The Law Applicable

Section 5 (6) of the Payment of Wage Act 1991 states;

• “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,

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
H.M.	______________________
18/09/2020	Deputy Chairman