ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030603
Parties:
| Complainant | Respondent |
Parties | Jakub Koszewski | Gz Professional Security Limited |
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Representatives |
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Complaint(s):
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-00040755-001 | 03/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00041091-001 | 17/11/2020 |
Date of Adjudication Hearing: 09/06/2021 and 03/11/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer does pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 3rd of November 2020 allows me take account of a reference period starting on the 4th of May 2020.
“Wages”, in relation to an employee, means any sum payable to the employee by the employer in connection with the employment, including –
- (a) Any Fee, bonus or commission, or any holiday, sick or maternity pay or any other emolument referable to his employment whether payable under his contact of employment or otherwise, and
- (b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice:
In addition to the claim under the Payment of Wages legislation, and in accordance with Section 41(4) of the Workplace Relations Act, 2015 the Complainant has presented a complaint of a contravention by the employer of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Background:
The Complainant herein initiated the within Complaint against his Employer of four years. The Complaints were lodged with the WRC on the 3rd of November 2020. To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. In line with the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) it is confirmed that this case may be attended by any member of the Public who may wish to attend (including where such attendance is at a remote hearing). In accordance with the Workplace Relations (miscellaneous Provisions) Act 2021 any person giving evidence in the course of this hearing was invited to make an affirmation solemnly declaring to tell the truth on the understanding that not to do so is a criminal offence punishable by operation of the Law. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with additional documentary evidence (including a year’s worth of payslips) in support of the Complainant’s case. The Complainant was arguing that his Employer had failed to pay his complete wages for the period from in and around May of 2020 to November of 2020. The Complainant was additionally seeking payment in lieu of his Annual leave entitlements which accrued on the cessation of the employment in October of 2020. |
Summary of Respondent’s Case:
The Respondent initially resisted these claims and sought an adjournment to instruct a Solicitor. The Respondent did not instruct a Solicitor and when this matter came on for hearing on a second date (November 3rd 2021), the Respondent did not attend despite being on notice of the intended time and date of the resumed hearing. |
Findings and Conclusions:
I have carefully listened to the evidence adduced by the parties herein. I note that the Respondent did try and seek (by way of email) an adjournment of this matter in the 24-hour period prior to the matter coming on for a second day of hearing. I was not minded to grant the said adjournment in circumstances where the Complainant had already (in June 2021) sought and been granted an adjournment which was intended to allow him an opportunity to brief a Solicitor (as was his request). I am satisfied the Complainant never consulted a Solicitor regarding this matter. I was, however, informed on the 3rd of November 2021 that the Respondent had in fact discharged the monies deducted under the Payment of Wages Act and in the circumstances the Complainant was happy to withdraw this complaint. The only outstanding issue concerned the Annual Leave entitlements due and owing. Having heard the Complainant’s evidence I am satisfied that the Complainant was entitled to three weeks Annual Leave at the termination of his employment. Having considered the wageslips provided, I am satisfied that the average weekly payment was in the amount of €200.00 per week. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00040755-001 - This complaint was withdrawn. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00041091-001 - This complaint is well founded and I require that the Respondent pay to the Complainant the sum of €600.00. |
Dated: 19th November 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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