Complainant

Respondent

Parties

Dylan  Keogh

Jonathan Smullen

Representatives

Breda Stanley Pickford                 Citizens Information Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043222-001

24/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043222-002

24/03/2021

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

CA-00043222-003

24/03/2021

The complainant was employed by the respondent as a labourer on the 3rd of December 2018 and his employment ended on the 23rd of June 2020. He worked 40 hours per week and he was paid €500. He is claiming that under the Organisation of Working Time Ac, 1977, the respondent failed to pay him for his holidays, public holidays and that under the Payment of Wages, 1991, the respondent failed to pay him in respect of statutory notice.

It was submitted on behalf of the complainant that the respondent with his partner operated a subcontracting company in the construction industry.  The complainant never received a payslip, or a contract of employment and he was unaware of the terms and conditions of his employment. He was put on temporary lay-off on 13th March 2020 due to the Covid-19 pandemic. After the reopening of the construction industry on the 18th May 2020, the respondent or his partner failed to contact the complainant regarding his return to work.  The complainant was eventually told by the respondent’s partner that he was let go because they could not contact him.

The complainant said that in March 2020 the respondent called all the employees to a meeting and told them that due to covid-19 that the building site was closing but, in a few weeks, he expected that they would be back working again. The complainant said the site reopened in June 2020, but he was not called back to work. The complainant said that his father worked on the same site and he asked the foreman why the complainant was not back on site and he was told to tell the complainant to bring in his paperwork. The complainant said that he rang the foreman and he was informed that he was sacked and that he had another labourer starting on the site. He said he then asked for his outstanding pay.  He said he was owed for Easter holidays, for public holidays occurring between March and June and payment in lieu of notice.

The respondent said that he works as a subcontractor and he employed the complainant on the 4th of December 2018 as a labourer and his employment ceased on the 17th of January 2020. He said he was working on a job in Cabra and that job finished, and he gave the complainant two weeks’ notice because he had no further work for him at that stage. He said he had another labourer employed and he had no need for two labourers. He said that he paid all the outstanding monies due to the complainant on the 24th of January 2020. The respondent said that he was not the complainant’s employer in June 2020 and that he was employed by a different subcontractor on a different site.

Mr Seamus Redmond gave evidence that he is a subcontracting bricklayer and he is a sole trader. He employed the complainant as a labourer on the 10th of February 2020 and he was working on a building site in Ballyogen. He said that he was the complainant’s employer up until June 2020 when he let him go. He said that he is not in partnership with the respondent Mr Smullen.

An accountant gave evidence that he is the accountant for both the respondent and Mr Redmond and he pays the wages.  He said that Mr Redmond is a subcontractor for 6 to 7 years and he is not employed by the respondent. He said that Mr Redmond employed the complainant on the 10th of February 2020.

The first matter I must decide is whether the complaint has been referred by the complainant against the correct respondent. 

The respondent states that the complainant’s employment with him ceased on the 17th of January 2020 and he was not the employer of the complainant in June 2020 when the complainant claims he was dismissed. The complainant was not given payslips during his employment. I note from the complainant’s bank statements that he was paid by the respondent up until the 24th of January 2020 and he was paid by “Mossy” who I was told in evidence referred to Mr Redmond on the 6th and 20th March.  I also note that the series of text messages about the end of the complainant’s were between the complainant and Mr. Redmond. I am satisfied from the evidence of the respondent’s Accountant that the complainant was employed by Mr Redmond on the 4th of February 2020 and that the respondent was not the employer of the complainant on the 23rd June 2020, the date this complaint refers to. I find therefore that the complainant has referred his complaints against the incorrect employer. In the circumstances I have no jurisdiction to hear of the complaints referred against the named respondent. 

I have no jurisdiction to hear of the complaints against the named respondent. 

Organisation of Working Time Act, 1997- holidays and public holidays, Payment of Wages Act, 1991-payment of notice, Complaint referred against the wrong employer.