Complainant

Respondent

Parties

Kieran  Gallagher

McMenamin Steel Nw limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00034514-001

07/02/2020

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

CA-00034514-004

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034514-006

07/02/2020

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

CA-00034514-007

07/02/2020

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

CA-00034514-008

07/02/2020

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

CA-00034514-009

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00034514-010

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034514-012

07/02/2020

The Complainant was employed by the Respondent from 19/4/19 to 28/10/19. The Respondent is a limited company engaged in construction. The Respondent’s office is based in Strabane, Co Tyrone and its employees work in the North and the Republic. The Respondent stated that it is registered with Revenue in the Republic of Ireland and has a trading VAT number. The Complainant has brought a number of complaints against the Respondent. The Respondent denies the complaints and/or that money is owing to the Complainant.  The Complainant’s gross weekly pay was £400 or €450.

CA-00034514-001

The Complainant stated that he did not receive the minimum wage and was paid at the rate of €8.82/hour. The Complainant clarified at the hearing and on his Complaint Form that he had not requested the Respondent to provide him with a statement of his average hourly rate of pay for any pay reference period.

CA-00034514-004

The Complainant stated that money was deducted from his wages and that he was owed €4,951. He stated that he received different amounts of wages over many weeks. The Complainant stated on his Complaint Form that his cheque lodgements for his wages did not match up with his revenue statements and that he did not receive any payment on 1/11/19. The Complainant also stated that he was not paid any annual holidays.

CA-00034514-006

The Complainant stated that he was entitled to double pay for working on a bank holiday. In that regard, the Complainant stated that he was entitled to pay for at least two bank holidays – namely the 27th May 2019 and the 12th July 2019. The Complainant also cited the 26th August 2019.

CA-00034514-007

The Complainant stated that he worked forty five and a half hours on site and sometimes worked late and that he had no issue with this. However, he stated that there was often significant additional hours required for travelling to and from work for which he received no pay or acknowledgement. The Complainant stated on his Complaint Form that his hours/week were sixty.

CA-00034514-008 and CA-00034514-009

The Complainant confirmed at the adjudication hearing that complaints  CA-00034514-008 and CA-00034514-009 could be amalgamated as they both dealt with the same complaint. In this regard, the Complainant stated that he was not furnished with any contract of employment or written statement of his terms and conditions.  

CA-00034514-010

The Complainant withdrew this complaint at the adjudication hearing on the 9th November 2021.

CA-00034514-012

The Complainant stated that he did not receive any notice of termination of his employment and that he is entitled to one weeks notice.  

CA-00034514-001

The Respondent disputed that the Complainant was not paid the minimum wage and stated that his accountant deals with all the wages and finances of the company. The Respondent stated that the Complainant was paid €10.40/hour which in 2019 was in excess of the minimum wage. The Respondent stated that the Complainant was paid £400 or €450/week for a forty five and a half hour week. The Respondent also stated that he received no request for a pay reference period. Further the Respondent stated that the  Complainant was on emergency tax at the commencement of his employment which likely effected his net pay.  

CA-00034514-004

The Respondent stated that he did not make any unlawful deductions from the Complainant’s wages and that he did not owe the Complainant the sum of €4,951.  The Respondent stated that the Complainant was on emergency tax at the outset and that any deductions made were statutorily required – eg tax.

In relation to annual holidays, the Respondent accepted that the Complainant was entitled to 8% of the hours he worked. In this regard, the Respondent estimated that the Complainant was entitled to €1040 in lieu of annual holidays owed between weeks 16 and 44 of the working year.  

CA-00034514-006

The Respondent stated that there were no bank holidays in the Republic of Ireland on the days cited by the Complainant – ie the 27th May 2019, the 12th July 2019 or the 26th August 2019. The Respondent stated that the Complainant received his full pay on those weeks and that the days cited were bank holidays in the North of Ireland.

CA-00034514-007

The Respondent stated that the Complainant never raised an issue with him prior to his employment or during his employment in relation to his travelling to work hours. The Respondent maintained that travel to work time was part and parcel of the job.

CA-00034514-008 and CA-00034514-009

The Respondent accepted that the Complainant was not furnished with any contract of employment or any written statement of his terms and conditions.  In that regard the Respondent stated that all matters connected with the Complainant’s employment were conducted orally and that this was an oversight on his behalf.

CA-00034514-012

The Respondent maintained that the Complainant was told on 13th October to look for other work, that on the 25th October 2019 he informed the Complainant there was no work, there was a phone call on the 28th October and a text message sent on the 29th October. In the circumstances the Respondent considered the Complainant was adequately notified of the termination of his employment and the reasons therefor.   

CA-00034514-001

This is a complaint pursuant to the National Minimum Wage Act [2000-2020]. Section 8 of the National Minimum Wage Act [2000-2020] defines working hours “in relation to an employee in a pay reference period”. Section 10 of the National Minimum Wage Act [2000-2020] states that “An employer shall select as apay reference period for the purposes of this Act a period not exceeding one calendar month”.

Section 23 of the National Minimum Wage Act [2000-2020] provides that:

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

The Complainant’s case is that he was not paid the minimum wage during his employment and this is disputed by the Respondent.  At the adjudication hearing the Complainant’s evidence was that he had not requested the Respondent to provide him with a statement of his hourly rate for any pay reference period and the Respondent’s evidence was that he had not received any such request.  Further on the Complaint Form in answer to the question “Have you obtained a statement from your employer of your average hourly rate of pay for your pay reference period?” the Complainant ticked the “No” box. In light of the foregoing, I find that I have not been provided with a statement of the Complainant's average hourly rate of pay for any pay reference period, in accordance with the provisions of Section 23 of the National Minimum Wage Act [2000-2020].

Section 24 of the National Minimum Wage Act [2000-2020] deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates:

“(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a disputein relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

It is clear that Section 24 makes it mandatory for an employee to request from his/her employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As I have not been furnished with the statement provided for at Section 23 of the Act which by virtue of Section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint.

In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator:

“For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”.

CA-00034514-004

The Payment of Wages Act [1991-2019] defines wages as follows:

““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 his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: …..”

Section 5(1) of the Payment of Wages Act, [1991-2019] states:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from the 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 aterm 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”.

Section 5(6) of the Act states that where:

“(a) the total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”  

The effect of Section 5 is to render unlawful any deduction from wages unless it is required by statute or contract or unless the employee has consented to it in advance.  The effect of Section 5(6) is to allow a reduction in wages to be treated as a deduction. In considering the application of the above provisions together with the evidence at the adjudication hearing and the documentary evidence in relation to the Complainant’s wages, I am not satisfied that the Complainant has particularised any unlawful deduction from or reduction in his wages in accordance with the terms of the Act.  Accordingly, I find that this complaint relating to unlawful deductions in wages has not been made out.

In relation to the complaint about the non-payment of annual holidays, the Respondent accepted at the adjudication hearing that the Complainant was entitled to €1040 in lieu of annual holidays owed between weeks 16 and 44 of the working year. The Complainant did not dispute this amount or put forward a counter amount. Accordingly, I am satisfied that the Complainant is owed €1040 in respect of annual holidays due to him pursuant to  the  Payment of Wages Act [1991-2019].

CA-00034514-006

Section 45A of the Industrial Relations Act [1946 – 2016] states as follows:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker 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 employment regulation order, 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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

For the purpose of the complaint under Section 45A, the Complainant has not particularised any employment regulation order specifying double pay or extra pay on the days he has identified nor has he specified any other breach of a regulation order. The Complainant’s complaint relates to failure of the Respondent to pay him double pay for working on three specified public holidays – namely the 27th May 2019, the 12th July 2019 or the 26th August 2019. In the absence of specific information in relation to contravention of an employment regulation order and being satisfied that  there were no public holidays in the Republic of Ireland on any of those dates, I consider that this complaint has not been made out.

CA-00034514-007

The Organisation of Working Time Act [1997-2020] provides as follows at paragraph 15:

“(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period   (hereafter in this section referred to as a “ reference period”)……

The Complainant’s evidence was that he had no issue with working forty five and a half hours on site but that his complaint related to the additional hours spent travelling to and from work.  Taking all the evidence into account I am satisfied that the Complainant has not particularised a complaint to the effect that the Respondent breached the Organisation of Working Time Act [1997-2020] in respect of his average weekly hours.

CA-00034514-008 and CA-00034514-009

The Terms of Employment (Information) Act [1994-2020] at Section 3 sets out the basic terms of employment which an employer must provide to the employee in a written form within two months of starting the employment. In this regard the Act states as follows:

“(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 requires 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.

The 1994 Act was amended by virtue of the Employment (Miscellaneous Provisions) Act 2018 and its provisions were applicable from 04/03/2019 whereby some of the core terms must be given in writing to an employee within 5 days of starting employment.  These are:

(a)    “the full names of the employer and 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 2014);

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

(d)    the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e)    the number of hours which the employer reasonably expects the employee to work-

(i) per normal working day, and

(ii) per normal working week.”

A contravention of Section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement. Ordinarily, as outlined at Section 41 of the Workplace Relations Act [2015 – 2021], the complained of contravention must be presented to the WRC within “6 months beginning on the date of the contravention to which the complaint relates” or within twelve months if reasonable cause for the delay can be established. However, the decision in ADJ-00009820 set out an interpretation of the legal position in relation to the time limitation period for pursuing a contravention of Section 3 which decision has not been appealed to the Labour Court and has been followed by Adjudicators as a correct statement of the law. Accordingly, a contravention of Section 3 of the Terms of Employment (Information) Act [1994-2020] is regarded as a subsisting contravention that endures so long after the initial two-month period as the employee remains an employee and not in possession of such a statement. Further, if no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

I adopt and apply this rationale to the current complaint and find that the contravention complained of,  is a subsisting and continuing breach of the Act and therefore, that the complaint is within jurisdiction from the point of view of time limits.

Turning to the substantive matter, from the evidence adduced at the adjudication hearing, I am satisfied that the Complainant was not furnished with any contract of employment or any written statement of his terms and conditions. 

CA-00034514-010

The Complainant withdrew this complaint at the adjudication hearing on the 9th November 2021.

CA-00034514-012

Section 4 of the Minimum Notice and Terms of Employment Act [1973-2017] sets out the statutory notice periods an employer is required to give in order to terminate the contract of employment of an employee who has been in their continuous service for a period of 13 weeks or more. The Act prescribes one weeks notice for an employee who has been in the continuous service of his employer for less than two years.

Having regard to  the evidence, I am satisfied the Complainant was entitled to one weeks notice upon the termination of his employment.

CA-00034514-001

For the reasons outlined this complaint is not well founded.

CA-00034514-004

For the reasons outlined, the complaint in respect of unlawful deduction of wages is not well founded.

For the reasons outlined, the complaint in respect of non-payment of annual holidays is well founded. Accordingly, I decide that the Respondent shall pay the Complainant the sum of €1040 in lieu of annual holidays owed to him. This amount is subject to such statutory deductions as may apply.   

CA-00034514-006

For the reasons outlined, this complaint is not well founded.

CA-00034514-007

For the reasons outlined, this complaint is not well founded.

CA-00034514-008 and CA-00034514-009

For the reasons outlined, this complaint is well founded. Accordingly, I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to four weeks gross pay – ie the sum of €1800.  

CA-00034514-010

The Complainant withdrew this complaint at the adjudication hearing on the 9th November 2021.

CA-00034514-012

For the reasons outlined, this complaint is well founded. Accordingly, I decide that the Respondent should pay the Complainant one weeks gross pay in lieu of notice – ie the sum of €450 – subject to such statutory deductions as may apply. 

Lay off; unfair dismissal; annual holidays, minimum wage, minimum notice, payment of wages