Complainant

Respondent

Parties

Jerzy  Ziomka

Kbk Contractors & Builders Ltd.

Representatives

Jacek Krawczyk Lay Representative

 No attendance

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-00044492-001

04/06/2021

The hearing of the complaint was held remotely which enabled Mr Ziomka to attend the hearing as he was not in Ireland at the time. The complainant was represented at the hearing and all present were informed that the hearing is a public one and the names of the parties would be published in the Decision. An interpreter was provided by the WRC to assist Mr Ziomka.

There was no attendance on behalf of the named respondent. I was informed by a staff member in the WRC that contact was made with the Respondent and the documents were issued to the email address provided. When there was no attendance at the hearing contact was attempted at the mobile phone number provided to the WRC, but the message was to the effect that the number is no longer in use. As I was satisfied that every reasonable effort was made by the WRC to advise and confirm the date and time of the proceedings to the Respondent, the hearing proceeded to hear the evidence on behalf of Mr Ziomka.

Mr Krawczyk set out the details of the complaint on behalf of Mr Ziomka while Mr Ziomka provided additional information in response to questions of clarification and Mr Adrian Kuklis also provided some additional information.

A submission made on the day before the hearing gave rise to some technical issues within the WRC-and in any event was not with the Adjudication Officer at the hearing. The practice of sending late submissions by formal representatives, or indeed any party, and expecting that they will be available to and considered by Adjudication Officers in advance of hearings is unhelpful to the process and indeed the parties represented. These views were made known to the representative at the hearing.

In the text of the complaint the generic terms of Complainant and Respondent are used.

The Complainant was employed as a carpenter. Initially he worked for a company named Highrise. Then he transferred to the named respondent after which he began to have trouble getting his full wages. The date of commencement of employment with the Respondent was given as on October 12th, 2020 finishing on December 17th, 2020-his last day worked. His average hours per week were given as 56 paid at €19.96 per hour-set out as ten hours per day Monday to Friday and six hours on Saturday. These terms were expressed in a contract of employment. He was assigned to work for the Respondent on different sites. The complaint is that he is owed payment of €3040 in unpaid weekly wages. The last payslip was for week ending November 27, 2020. The dates and amounts for non-payment of wages were set out as:

Week of 30.11.20 -05.12.20- calculated at €20 per hour- €1120 gross

Week of 07.12.2020-12.12.2020-calculated at €20 per hour-€1120 gross

Week of 14.12.2020 -17.12.2020-totoal of 40 hours calculated @€20 per hour-€800 gross 

Total claim for unpaid wages €3040 gross                             

There is a complaint regarding non-payment of holiday pay calculated at 3 x 1/3 of weekly pay based on having worked more that 117 hours per month amounting to €1120 calculated by reference to Section 19 of the Organisation of Working Time Act 1997

October 2020 168 hours worked

November 2020 234 hours worked

December 2020 142 hours worked

As the hours worked exceeded 117 hours each month, a claim is made for 3 x 1/3rd of a weeks pay for each month or one weeks paid-calculated as €1120.

Payslips were provided for three weeks of 13/20/27 November 2020.

The Respondent kept promising the wages owed and the holiday pay coming up to Christmas, but this was not paid.

Asked if he was the only employee not paid-the Complainant said that some were paid more or more frequently than he was -they had better English or they were able to argue their case better than he was.

Reference was made to an email sent to the Respondent on 12 April 2021 regarding the outstanding wages and holiday pay to which it was said the reply was ‘see you in court’. A copy of this email was not supplied with the submission.

No attendance-no evidence presented.

The complaint was submitted to the WRC on June 4th, 2021. I have decided to consider the full extent of the complaint-including the first date of payment when wages were due to the Complainant -December 4th, 2020.

Regarding the amounts claimed in terms of wages withheld the claims were for an even amount of gross pay each week without variation. Such a claim is not consistent with the payslips for the three weeks prior to the first week of the complaint which were supplied. Awards of compensation under the Payment of Wages Act 1991 are nett as provided for in the Act at section 6

Week of 13 November 2020: €1017.96

Week of 20 November 2020: €1207.58

Week of 27 November 2020: €918.16

Total nett: €3143.70

These figures include payment for overtime and together with the terms of employment which set out the hours of work as thirty-nine per week basic hours suggest that the hours of work did vary each week according with the contracts and the hours worked. The hourly rate at 19.96 was unchanged each week.

Taking the average nett pay for two weeks as €1047.90 and 39 by €20 or €780 for the third week, this gives a total of €2426.80 nett found to be due to the complainant on the basis that these payments were withheld from him when properly payable. The Complaint did say he worked a basic week in his final week, hence the lesser figure.

S.I.475/1997 sets out the regulations for the payment of holidays. Sections (2) and (3) give guidance as to how holiday pay is to be calculated and each sub section specifically refers to the wages (excluding any pay for overtime).

The extract from the contract of employment provided with the submission refers to a thirty-nine-hour week and the payslips provided include the payment of overtime which varied each week. The payslips also show hours worked less than 39 hours before payment of overtime. Based on the information provided on the behalf of the Complainant there are grounds for concern that the claim of weekly wages as a flat weekly wage is overstated for the purposes of the complaint and includes a calculation of wages paid as overtime, contrary to the regulations at S.I.475.

Based on the information available to me I have decided to allow three days nett wages for unpaid holiday pay calculated at €705 as the average basic pay for the weeks for which payslips leaving a total to be paid of €423 nett in holiday pay to be paid to the Complainant.

The difference between the calculations used by the Complainant can be explained by the fact that the calculations used by him are inconsistent with the documents provided to the hearing which were used to underpin and justify the decision. Any unintended underestimate in these calculations can be attributed directly to the fact of a late submission which was not available for consideration in good time prior to the hearing. And the fact remains that the figures provided in documents are not consistent with the complaint and an extrapolation was required to attempt to match one with the other. The amount set out in the decision is considered reasonable in the circumstances based on the available evidence.

CA—00044492 Payment of Wages Act 1991

The Complaint brought by Jerzy Ziomka against the Respondent KBK Contractors & Builders Limited is well founded and he is to be paid €2849.80 nett in compensation by the Respondent.

Wages withheld, Holiday pay on termination