Complainant

Respondent

Anonymised Parties

Roofer

Roofing Contractor

Representatives

Marius Marosan

 Self

Act

Complaint/DisputeReference No.

Date of Receipt

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

CA-00043098-001

16/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00043098-002

16/03/2021

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

CA-00043098-003

16/03/2021

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

CA-00043098-004

16/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts.

CA-00043098-005

16/03/2021

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  Withdrawn at Hearing.

CA-00043098-006

16/03/2021

The complainant commenced employment as a roofer with the respondent on 10/02/2020.  He agreed a wage of €550.00 nett per week and worked a 39-hour week. When the complainant checked his Revenue record in September 2020 he discovered that he was being returned for a greater amount than he was actually paid.  He requested pay slips from the respondent and these confirmed the Revenue record.  He then requested payment of wages consistent with his Revenue record and pay slips.  The respondent then discovered that this discrepancy arose due to an issue with the accountant who was contracted to manage his payroll. 

When he queried the discrepancies his rate of pay was then reduced without any discussion or consultation.

The complainant did not receive any contract of employment or any statement in relation to his terms and conditions of employment.  He also did not receive a copy of the Sectoral Employment Order relevant to his employment.  He did not feel that he could resume duty due to the behaviour of the respondent and did not return to work after 28/10/2020.

The complainant commenced employment with the respondent on 10/02/2020.  He worked as a roofer.  His rate of pay was agreed as €550.00 nett per week and paid directly into his bank account.  He worked for 39 hours per week.  He never received a contract of employment and he was not provided with any written details in relation to the terms and conditions of employment.  He also became aware that his employment was governed by a Sectoral Employment Order (SEO) but he was not provided with a copy of this or given any details in relation to this order.

At some stage in September 2020 he checked his Revenue record and noticed that he was returned as being paid €632.43 nett while only €550.00 was transferred to his bank account each week.  As he never received a pay slip he decided to ask the respondent for copies of all his pay slips.  When these were provided he noticed that these confirmed the amount of €632.43 nett.  He then calculated that his loss was €82.43 per week and this had occurred for a period of 13 weeks and was therefore owed the sum of €1,071.59.  When he requested payment of this amount the respondent then reduced his payment to €550.00 nett without any discussion or consultation.  The complainant is claiming that he is due the sum of €1,363.72 as a result of this deduction.

Arising from these matters the complainant engaged with the respondent who informed him that there was an issue with the accountant who was contracted to manage the payroll and make the returns to Revenue. 

The complainant’s representative told the hearing that the complainant was not given any more hours when he asked that the rate of pay be restored.  As the respondent refused to rectify the discrepancies the complainant in evidence said: “that he did not want to work for someone who did this to me.”   He was out sick at the end of October and did not return to work since then.  He secured other employment from 14/12/2020.  He submitted his complaints to the Workplace Relations Commission on 16/03/2021.

The respondent is a roofing contractor and employs less that 10 people.  He is the managing director.  The complainant commenced employment on 10/02/2020.  He agreed to pay the complainant the sum of €550 nett per week which was based on a daily rate of €110.  This was a nett amount as the complaint was concerned about what the nett amount would be.  He submitted a spreadsheet with details of payments to be made to an accountant that was contracted to manage his payroll and Revenue returns. 

When the complainant requested copies of his payslips these were issued.  He did not check these and when the complainant raised a query about the amount on the payslip and the amount actually paid to the complainant he investigated the matter and discovered that the accountant was providing wrong information on the payslips and also submitted wrong information to the Revenue website.  The issues with this accountant are now the subject of imminent legal proceedings.  He has another accountant dealing with these matters and it is proving difficult to correct the Revenue records for the employees affected by these actions.  He has advised his employees, including the complainant, about these matters.

Until these errors were discovered the complainant did not raise any issue in relation to the wages received because he was paid what was agreed when he commenced his employment.  No pay slips were issued, and this was a further issue with the accountant who was contracted to manage the payroll.  He provided e mail addresses for all employees and he understood that pay slips would automatically be issued.  No employee raised any issue in relation to not receiving pay slips until the complainant requested copies of his.  When he looked into the matter he discovered that this was a further issue with the accountant.

The respondent submits that the complainant was paid what was agreed and he is not owed anything further.  The respondent denies that he did not provide any more work for the complainant at the end of October 2020.  The complainant reported sick and he asked him to submit a medical certificate, but he did not do so.  The reason the complainant did not get any work from the end of October 2020 was due to the fact that the complainant did not report for work. 

The respondent also confirms that the date the complainant’s employment ended was the 28/10/2020 and not 04/12/2020 as per the Revenue record.  This is a further error that is waiting to be amended.

CA-00043098-01:  The start date of the complainant’s employment was agreed as 10/02/2020.

Since 04/03/2019 the Employment (Miscellaneous Provisions) Act 2018 Act obligates an employer to provide employees with certain essential information within 5 days after the commencement of employment. This includes, the full name of both employer and employee; the address of the employer; If a temporary contract the expected duration or if fixed term the date of expiry; the rate and method of calculation of remuneration and pay reference period for the purpose of the National Minimum Wage Act and the number of hours that he will be expected to work per normal working day.

Information on certain other aspects of the employee’s terms and conditions are outlined in the Terms of Employment (Information) Act 1994, Section 3, as outlined below, must be provided within two months of the commencement of the employment.  These include:

3.” (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

(a)   the full names of the employer and the employee,

(b)   the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c)    the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d)   the title of the job or nature of the work for which the employee is employed,

(e)    the date of commencement of the employee’s contract of employment,

(f)     in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

(g)   the rate or method of calculation of the employee’s remuneration,

(h)   the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)     any terms or conditions relating to hours of work (including overtime),

(j)     any terms or conditions relating to paid leave (other than paid sick leave),

(k)    any terms or conditions relating to –

(i)incapacity for work due to sickness or injury and paid sick leave, and

(ii pensions and pension schemes.,

(l)     the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m)  a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also required this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

It is the complainant’s position that he never signed or received a contact of employment of any documentation in relation to the terms of her employment.  At the hearing the respondent outlined that he did not comply with the provisions of this legislation.

I find that this complaint is well founded, and I award the complainant compensation of four weeks remuneration.

CA-00043098-02: Section 23 of the Industrial Relations (Amendment) Act, 2015 provides for the hearing of complaints regarding the contravention of a sectoral employment order.  S.I. 234/2019 – Sectoral Employment Order (Construction Sector), 2019 is one such agreement.  This sets out the statutory minimum rates of pay and other conditions for persons employed in the construction sector.  The respondent accepts that he did not provide a copy of this SEO to the complainant.  The complainant submits that he did not receive the terms and conditions as laid down by the Sectoral Employment Orders (SEO).  The SEO relevant to this employment is the Sectoral Employment Order (Construction Sector) 2019.  It was not disputed that the complainant’s employment fell within the remit of the SEO.  The only issue raised in relation to this complaint was the complainant’s hourly rate of pay.  Based on the evidence adduced the complainant was paid €13.75 nett per hour.  It was submitted that under the provisions of the SEO he should have been paid €17.50 gross per hour.  It is clear that the respondent was in contravention of its obligations under the SEO in respect of the complainant’s rate of pay.  The complainant did not provide any evidence in relation to the money he was owed by way of underpayment of the applicable hourly rate.  The respondent did not provide any evidence or payroll records to dispute the complainant’s contention in this matter.  I find that the complainant has an entitlement in respect of arrears of pay arising from the underpayment of the applicable hourly rate of pay under the SEO during his period of employment. 

Section 23 of the Industrial Relations (Amendment) Act, 2015 provides that:

(2)” A decision of an adjudication officer to which this section applies shall do one or more of the following, namely –

(a)   declare that the complaint was or, as the case may be, was not well founded,

(b)   require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c)    require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with the regulations under section 17 of the Unfair Dismissals Act, 1977.”

In accordance with the provisions of section 23 (2) (c) of the Act I require the respondent to pay the complainant the sum of €1,200 as being a just and equitable sum in compensation for the breach of his rights under the Act.

There were no other complaints in relation to the application of the SEO to the complainant’s employment.

CA-00043098-03:  In his claim the complainant submitted that the respondent made an unlawful deduction from his wages.  Section 1 of the Payment of Wages Act, 1991 defines wages as:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a)    Any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise,”

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act 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.”

Having carefully considered the circumstances involved in the within case I am satisfied that the complainant was paid the nett amount agreed with the respondent.  The amount claimed is based on an incorrect revenue return and an incorrect pay slip.  The respondent is in the process of rectifying these matters.

Taking into account the application of Section 5 (1) (a) as outlined above, I am satisfied that the no deduction was made to the amount agreed.  The absence of documentation in this regard is regrettable.  I am also satisfied that the complainant did not raise any issue with the amount of wages paid into his account from the date of commencement up to the date he noticed the Revenue returns. 

Section 4 (3) of the Act states:  “where a statement under this section contains an error or omission the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of clerical mistake or was otherwise made accidentally and in good faith.”

I am satisfied that the issues which occurred resulting in these errors in relation to the issuing of pay slips and inaccurate records were being made without the knowledge of the respondent and I accept his assurances that efforts are ongoing to correct these records.  In find that this complaint is not well founded.

CA-00043098-04:  The complainant is seeking payment of an amount of €82.43 for a period of 14 weeks.  This complaint relates to the fact that his nett pay showed an amount of €550 and not €632.43.  In view of the finding in the previous complaint I am satisfied that the complainant has not provided any evidence that he was entitled to this amount.  This complaint is based on the inaccurate Revenue and inaccurate pay slips.  I am satisfied that the complainant was paid the sum agreed with the respondent and therefore this complaint is not well founded.

CA-00043098-05: This is a complaint of unfair dismissal seeking adjudication under the provisions of the Industrial Relations Act as the complainant does not have the required service to bring a claim under the Unfair Dismissals Act.  The complainant is alleging constructive dismissal on the grounds that he could no longer work for an employer who had not paid in in line with his pay slips and the returns made by the respondent to Revenue.  The complainant submitted that he did not raise any grievance with the respondent as he was never given a copy of the grievance procedure. As English was not his native language he did not understand the concept of a grievance.  It was submitted on behalf of the complainant that he had sought payment of all monies due to him, but this resulted in him being paid less and he had no confidence in the respondent.

The respondent submitted that he had no formal grievance procedure in place as he had a small company and all matters could be discussed and raised informally.  It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve his/her grievance prior to resigning and initiating a claim for unfair dismissal. 

In Berber v Dunnes Stores 2009 ELR 61 Finnegan J stated: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is as such that the employee cannot be expected to put up with it”.

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.”

Based on the evidence provided I am not satisfied that the complainant made any reasonable effort to raise his grievance.  I therefore recommend that this complaint is not well founded.

CA-00043098-06: This complaint was withdrawn at the hearing.

CA-00043098-01: I find that this complaint is well founded, and I award the complainant compensation of four weeks remuneration.  I order that this sum to be paid to the complainant within 42 days of the date of this decision.

CA-00043098-02: I require the respondent to pay the complainant the sum of €1,200 as being a just and equitable sum in compensation for the breach of his rights under the Act.  I order that this sum to be paid to the complainant within 42 days of the date of this decision.

CA-00043098-03: In find that this complaint is not well founded.

CA-00043098-04: I am satisfied that the complainant was paid the sum agreed with the respondent and therefore this complaint is not well founded.

CA-00043098-05: Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I recommend that this complaint is not well founded.

CA-00043098-06: This complaint was withdrawn at the hearing on 22/07/2020.

Rate of pay. Unfair dismissal, SEO