Complainant

Respondent

Anonymised Parties

Apprentice electrician

Electrical company

Representatives

  Self

Emma E. Brennan

Emma E. Brennan Solicitors

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-00035448-001

26/03/2020

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

CA-00035448-002

26/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00035448-003

26/03/2020

The Complainant was an apprentice electrician with the Respondent. 

He went on Phase 2 off-the job training between the 2 September 2019 and 7 February 2020.

The Complainant gave notice to the Respondent that he was leaving employment on the 31 January 2020.

CA-00035448-001  This complaint is in relation to accrued holiday pay.  He sought his holiday entitlement while on Phase 2 off-the job training between the 2 September 2019 and the termination of his employment.

CA-00035448-002.  This complaint is in relation to the failure to receive a written statement of terms and conditions of employment.

CA-00035448-003.  This complaint in relation to failure to receive the national minimum rate of pay.

CA-00035448-001

The Respondents case was that the Complainant did accrue holiday leave while on his off – the – job training and he received these holidays in the form of a training allowance from Solas. He received two weeks holiday pay at Christmas.

CA-00035448-002

The Respondents case was that the Complainant was provided with his terms and conditions of employment, however they were not able to substantiate same with evidence.

CA-00035448-003

 The Respondent submitted that the Complainant had not complied with the terms of the Act.

CA-00035448-001

While on off- the -job training, the Complainant was registered as a being in employment with the Department of Education for Revenue purposes and he received a weekly payment through a payroll system managed by the Department of Education on behalf of the Education and Training Boards (ETBs).

The duties and responsibilities relating to the Apprenticeship programme are set out in the Solas Apprenticeship Code of Practice.  On page 2 of the Code of Practice under the heading Employment Entitlements, it sets out that Apprentice’ statutory holiday entitlements continue to accrue during the off -the -job training but must be taken during the on- the- job phases at times agreed with the employer.

The Respondent acknowledged in correspondence via their Solicitor that the Complainant received one days’ holidays less than he should. This amounted to a payment of €54.82 being 8.5 hours at €6.45 per hour.

The Complainant received two weeks annual leave at Christmas 2019 which covered his annual leave entitlement accrued during his period of off -the -job training.

CA-00035448-002

On the balance of probability, I accept that the Complainant's did not receive his written terms of employment.

The lack of written terms of employment led to substantial difficulties between the parties. In these circumstances I find this complaint is well founded and award redress of four week’s pay; which is €1,0007.76.  This is calculated on an average weekly wage of €251.94.

The failure of the Respondent to provide regular payslips to the complainant also led to unnecessary disputes between the parties.

CA-00035448-003

A Complainant can only process complaints to the WRC seeking arrears of wages by reference to the minimum wage if he/she obtains a statement of earnings in respect of the reference period to which the complaint relates.  Section 24 of the National Minimum Wage Act 2000 sets out

24.— F26 [ (1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee ’ s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. ]

(2) F26 [ The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’ s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015 ]—

( a) unless the employee—

(i) has obtained under section 23a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

( b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33or 34, or

(ii) prosecuted for an offence under section 35.

The first issue for consideration is whether or not the Complainant made his request under section 24 of the Act.

The Complainant did not comply with the requirements of section 24, therefore his claim must fail.

CA-00035448-001

This complaint is well founded.  I award the Complainant annual leave of €54.82.

CA-00035448-002

This complaint is well founded.  I award the Complainant compensation of €1,0007.76.

CA-00035448-003

This complaint is not well founded.

Apprentice, Apprenticeship, Annual leave, Contract, Minimum wage