Complainant

Respondent

Parties

Joey  Maguire

Alan Duffy AD Fencing and Plant

Representatives

  Self

 Self

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-00043805-001

28/04/2021

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

CA-00043805-002

28/04/2021

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

CA-00043805-003

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043805-004

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043805-005

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043805-006

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043805-007

28/04/2021

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

CA-00043805-008

28/04/2021

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

CA-00043805-009

28/04/2021

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

CA-00043805-010

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043805-014

28/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule  2 of the Criminal Justice Act 2011

CA-00043805-015

28/04/2021

The complainant commenced employment with the respondent on 30/11/2020.  This employment came about as a result of a messenger app offering following the posting by the complainant on his Facebook page that he was seeking employment as digger driver.  The complainant believes that it was agreed that he would be paid €17.00 per hour once he had completed the CIF induction.  The complainant submits that he was only given 30 minutes of digger work during his three and a half weeks on site.  He also noticed some discrepancies in his wages.

The respondent submits that the complainant did not have the required pass or “ticket” to undertake digger work and therefore he was paid on the unskilled labourer rate of €12.00 per hour.  The respondent also submits that the complainant was not dismissed.  He did not return to work and would only return on his own terms and conditions.

After the hearing both parties provided copies of pay slips and text messages which were exchanged between the parties during the course of this employment.  These text message clearly indicate that a difficulty arose between the parties which ultimately resulted in a complete breakdown of the employment relationship.

The complainant was offered work by the respondent as a digger driver.  He commenced employment on 31/11/2020.  He completed the mandatory CIF induction programme.  He also provided copies of the various certificated that he was asked for.   The complainant did not get any digger work apart from about 30 minutes.  He was also not provided with a contract of employment or any written details of his terms and conditions of employment. 

After receiving his payments, he noted that he wages were reduced without his consent. 

The complainant also submitted that he was not told about his hours of work or where exactly he would be based.  During his employment he frequently did not get breaks and when he did, he was only permitted to take one break per day.

The complainant also contends that he was promised a bonus payment at Christmas 2020, and he did not receive this and submits that he was told by the respondent that he did not deserve this.

When the complainant contacted the respondent in January 2021 about a return to work and asked him to sign a social welfare form, he was told he would have to take a random drugs and alcohol test.  The complainant sought the basis for this but was not given one.

The complainant denies that he refused to work for the respondent.  The complainant submits that he worked hard and was often left on a site without any tools. He frequently did not know what hours he was expected to work.  He did not know anything about fencing and was frequently left to work alone.  He was not told at any stage that he would be paid as an unskilled labourer

The respondent is a sole trader and provides fencing solutions to various sites.  He engaged the complainant as a digger driver and when he commenced employment the complainant did not the required pass or “ticket” to enable him to do so.  The respondent then took him on as an unskilled labourer and paid him the correct rate.  He was also entitled to “Country Money” payment with is a travel and subsistence payment which is paid when the employee is allocated to a site which is more than 32km from their base.  This payment is paid tax-free.

When he commenced working for the respondent the complainant was required to undertake the mandatory induction training.  This was provided by Blu-3 Limited.   As part of this he was required to submit the necessary paperwork and certificates.  The complainant did not provide any certification to enable him to work as a digger driver and therefore he could not have him undertake that work as he was not qualified to do so.  The only documentation provided by the complainant at that time were the manual handling and safe pass.  The respondent submits that he asked the complainant about his digger driver pass and the complainant said that he was in the process of obtaining it.

The respondent also submits that he explained the “Country Money” payment to the complainant and there was nothing untoward about this payment. 

The complainant did not return to work after he was not paid the Christmas Bonus.  The respondent submits that he was not entitled to this bonus as he worked for just over three weeks, and he did not work a complete week at any stage.

The respondent also submits that the requirement to have a random drug and alcohol test was not a requirement of his.  This was a site requirement and was mandatory.  The respondent said that this requirement was stipulated in Section C of the induction training, and it was the same for all staff. 

The respondent is clear that the complainant did not return to work.  He was due to work a total of 18 days during his employment and actually only worked on 15 of those.  The respondent submits that he was told by the complainant on 02/01/2021 that he was not coming back.

In relation to the digger ticket submitted by the complainant post hearing the respondent notes that this is a “New Entrant” ticket and that in those circumstances the holder had to be supervised on site for a minimum of six months and then the holder is required to do a full day course and complete a test.  If the complainant had such a ticket when he commenced employment, then he would not have to complete a “New entrant” process.

There were a number of complaints submitted by the complainant in this case.    It is not disputed that the complainant worked for a total of three and a half weeks for the respondent.

The complainant’s start date of 30/11/2020 is not disputed.  What is disputed is what the rate of pay was and when this employment ceased. It is not disputed that the complainant did not return to work after Christmas 2020.  The complainant submits that he was not contacted by the respondent and the respondent submits that the complainant contacted him in order to complete a social welfare form which is clear evidence that he had no intention to resuming duty.  It was the complainant’s evidence that he would not return to work until the money he felt he was owed, including a Christmas bonus, was paid.  I was provided with four pay slips which covered the period of employment.  These cover weeks 50, 51 and 52 of 2020 and week 1 of 2021.  

CA-00043801-001:  this is a complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.  The issue in dispute is the payment of the travel and subsistence allowance which is known as “Country Money”.  The complainant believes that this was used inappropriately by the respondent as a tax avoidance measure.    I find that this payment is part of the travel and subsistence payment which used in the construction industry and is payable when an employee is working on a site that is more than 32km from the employer’s base.  The employee in this case was well outside that 32km criteria and was an appropriate payment.  Having reviewed the pay slips submitted by the parties I note that this payment is clearly noted on each pay slip and there is no evidence on the pay slip of this having been subsequently deducted from the complainant’s net pay.  I find that this complaint is not well founded.

CA-00043801-002: this is a complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.  The issue in dispute is whether the complainant was entitled to be paid €17.00 per hour.   Given that there is no confirmation that the complainant had the necessary certification at the beginning of his employment to work as a driver digger and in the absence of any contractual arrangement I find that this complaint is not well founded.

CA-00043801-003: this is a complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.  The complainant submits that he was entitled to a payment in lieu of the termination of his employment.  It is the respondent’s position that the complainant did not return to work and therefore no payment is due.  As the complainant did not provide any evidence that his employment was terminated, I find that this complaint is not well founded.

CA-00043801-004:  The complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  Specifically, he states that he did not receive his public holiday entitlement under the act.

The Organisation of Working Time Act, 1997 outlines an employee’s entitlement in respect of public holidays.

“21. (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(a)    An additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom”.

 Having reviewed the pay slips provided by the parties I find no evidence of any public holiday payments. During the course of this employment the complainant would be entitled to three public holidays:  25 and 26 December 2020 and 1st January 2021.  I find that this complaint is well founded, and the complainant is entitled to be paid for three public holidays.

CA-00043801-005:  The complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  The complainant submits that he was not notified of his starting and finishing times in advance.  The complainant submits that he was often told late the night before what time he would be collected for work the following day or where exactly he was going to be based.  This was disruptive as his partner and young child had to get up at 5.00am and drop him off at a location which was 40 minutes away in order to be collected by the respondent.  The respondent submits that he only times that the complainant did not know when he was starting work were the days following an absence and, in those circumstances, he would be contacted, and the time confirmed.  This employment relationship was characterised by the lack of documentation and records.  I find that this complaint is not well founded.

CA-00043801-006:  The complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  The complainant submits that he was notified in advance of any additional hours that he was required to work.  The complainant also believed that he was left waiting on the site to be collected for the journey home and this also incurred additional hours.  I find that the absence of any evidence is not helpful in relation to this complaint I find that this complaint is not well founded.

CA-00043801-007: The complainant is seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.  Specifically, he states that he did not receive his public holiday entitlement under the Act.  This is a duplicate complaint of CA-00043801-004.

CA-00043801-008:  This is a complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.  The complainant submits that he did not receive any statement in relation to his terms of employment.   The respondent does not dispute that he failed to provide this document.  I am satisfied that in this case the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043801-009:  This is a complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.  The complainant submits that he was not notified in writing of a change to his terms of employment.  I am satisfied that in this case the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043801-010:  This is a complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.  The complainant submits that he did not receive any statement in relation to his core terms of employment.   The respondent does not dispute that he failed to provide this document.  The Act provided that an employee must receive five core terms of employment in writing within five days of starting a job.  These include the full names of the employer and employee, the address of the employer, the expected duration of the contract, the rate or method of calculating pay and the pay reference period and what the employer reasonably expects the normal length of the working day.

Notwithstanding this, Section 7 of the 1994 Act, as amended by Section 12 of the Employment (Miscellaneous) Provisions Act 2018 provides:

“An employee shall not be entitled to present a complaint under Park 4 of the Workplace Relations Act 2015 in respect of a contravention of Section 3(1a) [Failure to provide 5 Day Statement of Core Terms] unless the employee has been in the continuous service of the employer for more than one month”.

Section 2 of the 1994 Act, as amended by Section 6 of the 2018 Act provides:

“This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than one month”.

I am satisfied that in this case the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043801-014:  The complainant is seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.  On his complaint form the complainant alleges that he was discriminated against on the grounds of civil status and family status.  The complainant did not pursue this complaint any further at the hearing.  I find that this complaint is not well founded.

CA-00043801-015:  The complainant is seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011.  Specifically, he submitted that he was penalised for making a disclosure of wrongdoing by the respondent.   The complainant confirmed that he wrote to the respondent on 01/03/2021 and put him on notice that he intended to make a complaint under the provisions of the Criminal Justice (Theft and Fraud Offences) Act, 2011.  At the hearing the complainant confirmed on affirmation that he did not, at any stage, make any disclosure.  In these circumstances the complainant was not penalised for having made a disclosure and I find that this complaint is not well founded.

CA-00043805-001:  I find that this complaint is not well founded.

CA-00043805-002: I find that this complaint is not well founded.

CA-00043805-003:  I find that this complaint is not well founded.

CA-00043805-004: I find that this complaint is well founded, and the complainant is entitled to be paid for three public holidays.

CA-00043805-005: I find that this complaint is not well founded.

CA-00043805-006: I find that this complaint is not well founded.

CA-00043805-007: This is a duplicate complaint of CA-00043801-004.

CA-00043805-008: I find that the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043805-009: I find that the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043805-010: I find that the complainant does not have the required service to pursue a complaint under the Act and, in accordance with section 7 of the Act, I find that this complaint is not well founded.

CA-00043801-014: I find that this complaint is not well founded.

CA-00043801-015: I find that the complainant was not penalised for having made a disclosure and I find that this complaint is not well founded.

Terms of employment.