Complainant

Respondent

Parties

David  O Grady

MCR Group MCR Group

Representatives

  Self-Represented

Seamus Magennis, Director of Soft Services

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-00042257-002

24/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

An affirmation was administrated to the parties who gave evidence at the hearing in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021.

The Complainant worked in security with the Respondent. He earned €12.50 per hour together with a daily expenses allowance €21.80. This was agreed by the parties.

His complaint related to payment of wages which was submitted to the Workplace Relations Commission on 24 February 2021.

CA-00042257-002 – Payment of Wages

A contract of employment dated 22 November 2013 was produced wherein the remuneration was stated as €12.50 per hour together with daily expenses of €21.80 per day worked.

The Complainant stated in August 2016 a request from the client of the Respondent was made to increase his salary. The Complainant stated that the increase would give him a salary of €39,000 per annum. He gave evidence that this request was made in writing in an email, but no email was produced in evidence.

The Complainant gave evidence of his unsuccessful attempts to resolve the issue with the Respondent and produced correspondence to this effect from March, April, June and July 2020.  

CA-00042257-002 – Payment of Wages

The Respondent gave a positive account of the working relationship with the Complainant.

The relationship between the Respondent and its client was outlined that the Respondent submits a proposal to its clients for costs which accounts for employee’s salary. If the proposal is not accepted, there is no increase in salary. The Respondent stated that regardless of what the client may said to the Complainant directly, unless it approves the increase in the contracted payment, there is no increase.

The Respondent gave evidence that a new proposal was put to the client in March 2020 to account for an increase in the Complainant’s salary, but it was rejected by the client on the basis the business was restricted due to the Covd19 pandemic. The Respondent stated that it had no issue with a pay increase for him, but the client did not approve the increased contracted amount.

CA-00042257-002 – Payment of Wages 1991

Preliminary Issue

This claim goes back as far as 2016 up to the date of the hearing. By way of a preliminary matter, it is first necessary to consider Section 6 (4) of the Payment of Wages Act 1991: -

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

Applying Section 6 (4) to this case I am limited to the period within 6 months beginning on the date of the contravention. The Complaint Form was submitted to the Workplace Relations Commission on 24 February 2021. Consequently, I am limited in my jurisdiction in reviewing this claim for the 6-month period from 23 August 2020 to 24 February 2021. Therefore, any evidence before 23 August 2020 cannot be considered for the purpose of this hearing including any reference to a request made in 2016.  

Substantive Issue

Section 1 of the Payment of Wages Act 1991 defines an employer as:

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;”

With a contract of employment being defined as:

“Contract of employment” means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;”

Consequently, it is the employer who is responsible for paying an employee’s wages and not any third party to the employment contract.

In this case it is clear that this case is only relates to an employee, the Complainant, and his employer, the Respondent.

The question put to the Complainant by the Respondent in cross examination wherein he was asked if the Respondent ever offered him a pay rise was answered in the negative. This question summaries the entire case. Consequently, where no pay rise was offered by the Respondent, employer, in the first instance the claim does not fall within the jurisdiction of the Payment of Wages Act 1991 and is not well founded.

CA-00042257-002 – Payment of Wages

This complaint is not well founded. 

Payment of Wages - Employee – Employer –