ADJ-00028513

Complainant

Respondent

Parties

Pawel  Solecki

J&D Lithuanian Building Services Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00036503-001

03/06/2020

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

CA-00036503-002

03/06/2020

The Complainant commenced his employment with the Respondent on 9th September 2019. His employment was terminated on 13th March 2020. He referred his complaints to the Director General of the WRC on 3rd June 2020 .

Both parties attended the hearing on 13th May 2021. The parties represented themselves. The Respondent joined the hearing from his car and informed the Adjudication Officer that he had another appointment and would need to leave the hearing shortly. At the outset of the hearing, it became evident that the Complainant was unable to meaningfully participate in the proceedings without assistance of an interpreter. The hearing was adjourned in order to secure an interpreter for the Complainant. Both parties attended the reconvened hearing on 28th September 2021. The Complainant was assisted by an interpreter sourced by the WRC. At the hearing the Respondent attempted to rely on records that were not made available either to the Complainant or to the Adjudication Officer. He claimed that he would be able to defend the claims if he had more time to obtain relevant records from his accountant.  The hearing was adjourned and the parties were requested to submit any evidence they wish to rely on during the adjudication hearing to the WRC in advance of the next hearing.

On 29th September 2021, the parties were notified of the next adjudication hearing to be held on 3rd November 2021. The letter outlined in detail the WRC postponements procedure:

“Postponements

It should be noted that a postponement of the Hearing will only be granted in exceptional circumstances and for substantial reasons. 

Requests for postponements should be made using the Application Form by email at the earliest possible opportunity to postponements@workplacerelations.ie setting out the full reasons for the request. Requests must be accompanied by the relevant supporting documentation. Please use this email address for postponement requests only.

A copy of the Guidelines for Postponements and Application Form is attached for your information. These are also available on the https://www.workplacerelations.ie/en/news-media/workplace_relations_notices/wrc-postponement-process-guidelines-february-2020.html WRC website at  wrc-postponement-guidelines.pdf (workplacerelations.ie) “

On 11th October 2021, the Respondent emailed the WRC as follows:

“Hello Remind me please. When we have another meeting. I hope not today. I don't feel very well .. I think it's just a flue..” (sic).

In response, the WRC informed the Respondent that the adjudication hearing was scheduled on 3rd November 2021. On 29th October 2021, the WRC emailed the Respondent requesting him to provide a list of attendees for the remote hearing in order to issue a WebEx invitation. On 2nd November 2021, the Respondent replied as follows:

“I cannot attend the meeting. I feel very bad. I have been diagnosed with Covid 19. I would like to ask you to give me time to recover.”

The WRC replied informing the Respondent that should he wish to seek a postponement, he should email the dedicated postponements email address regarding the matter and it would be considered. The Respondent was informed that otherwise the hearing will be going ahead as scheduled. The postponement guidelines were attached. No further communication was received from the Respondent.

At the time the adjudication hearing was scheduled to commence on 3rd November 2021, it became apparent that there was no appearance by, or on behalf of, the Respondent. The WRC telephoned the Respondent at the number provided and at which the Respondent was previously contacted by the WRC. The telephone call was answered but after the WRC official introduced himself, he was told that he has a wrong number, and the call was terminated. I waited some time to accommodate a late arrival.

Adequate time has been provided for the Respondent to furnish an explanation for his non-attendance. There has been no further communication from the Respondent.

Having considered the circumstances, I am satisfied that the Respondent was properly notified of the adjudication hearing and no satisfactory explanation was provided for the Respondent’s non-attendance.

The Complainant applied for an extension of time limit to cover the whole period of employment. He submitted that he believed that the Respondent would pay what was owed. They have spoken about the matter and the Respondent undertook to resolve the outstanding issues. However, since the beginning of Covid-19 pandemic the Respondent was not contactable.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Having carefully considered the basis for the Complainant’s request as presented by the Complainant, I find that he has not shown reasonable cause to empower me to extend the applicable time limits.

The Complainant referred a claim in relation to annual leave and public holidays under the Payment of Wages Act. At the adjudication hearing, he acknowledged that these claims should have been properly brought under the Organisation of Working Time Act, 1997. The Complainant is a lay litigant with very limited knowledge of English. When referring his claims to the WRC he relied on his friend, who is also a non-Irish national.

In considering the matter I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370. In that case McGovern J. held that

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this decision that this can only be done so long as "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated: - “It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

I also note the dicta of MacMenimin J. in the Supreme Court in Louth/Meath ETB v Equality Tribunal[2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the claims it faces. In the present case, the matter of annual leave and public holidays had been clearly referred to in the WRC referral form which was copied to the Respondent. I am thus satisfied that the Respondent was on notice of the claims. At the adjudication hearings on 13th May and 28th September 2021, the Respondent was prepared to deal with both matters regardless of the act under which they were referred. I, therefore, find that I do have jurisdiction to investigate this complaint under the Organisation of Working Time Act.

The Complainant submits as follows:

The Complainant submits that he commenced his employment with the Respondent on 9th September 2019. Initially, he was paid €15 per hour but this was subsequently increased to €17.50 in January 2020.

The Complainant alleges as follows:

1.       That the Respondent did not pay him the amounts showed on the payslips. As a result, he is owed €659.06 net for the period from 13th September 2019 to 20th March 2020.

2.       That the Respondent did not pay him the amount owed to him as a result of applying a lower rate of pay than the Complainant was entitled to. The Complainant’s calculations show that he was owed €1,682.57 gross in that regard.

In advance of the adjudication hearing, the Complainant provided detailed calculations of the alleged underpayments and supporting evidence such as copies of payslips, copies of timesheets, and records obtained from the Revenue Commissioners.

At the hearings on 13th May 2021 and 28th September 2021 the Respondent argued that he would be able to refute the Complainant’s allegations, but he would have to obtain records from his accountant. The Respondent was given the opportunity to do so. However, there was no attendance by, or on behalf of, the Respondent at the adjudication hearing on 3rd November 2021 to defend the claims. 

For a breach of the Payment of Wages Act to occur the wages referenced in the claim must be properly payable within the cognisable period set down in the Workplace Relations Act, 2015. As this claim was referred to the Director General of the WRC on 3rd June 2020, the cognisable period for consideration is 4th December 2019 to 3rd June 2020. The Complainant’s employment was terminated on 13th March 2020.

In relation to the Complainant’s claim that he was not paid the amounts as showed on the payslips, I find that the evidence before me shows that there was no underpayment in the cognisable period in respect of hours worked. The matter of public holidays entitlements will be addressed separately.  

In his second claim raised under the Act, the Complainant alleged that the Respondent did not pay him the amount owed to him as a result of applying a lower rate of pay than the Complainant was entitled to.  The evidence before me shows that the Complainant was paid the hourly rate of €15 until January 2020. In the cognisable period from 4th December 2019 to 1st January 2020 he worked 89 hours. He is, therefore, owed €222.50.

I declare this complaint partially well founded. I require the Respondent to pay the Complainant €222.50.

The Complainant submits as follows:

1.       That the Respondent did not pay him his public holidays entitlements.

The Complainant submitted copies of relevant timesheets and pay records. He alleged that he is owed €140 for each of public holidays falling on 28th October 2019, 25th December 2019, 26th December 2019 and 1st January 2020. The Complainant confirmed that he did not work on these dates.

1.       That the Respondent did not pay him his annual leave entitlements. The Complainant submits that he was owed 76 hours of outstanding annual leave that was not paid to him on cessation of employment, totalling €1,330 gross.

At the hearings on 13th May 2021 and 28th September 2021 the Respondent argued that he would be able to refute the Complainant’s allegations, but he would have to obtain records from his accountant. The Respondent was given the opportunity to do so. However, there was no attendance by, or on behalf of, the Respondent at the adjudication hearing on 3rd November 2021 to defend the claims. 

In relation to the Complainant’s claim that he was not paid the amount he was due in respect of public holidays, I find that, pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 3rd June 2020 and therefore the cognisable period that may be investigated is 4th December 2019 to the date of termination. I find that there were three public holidays in the cognisable period, namely 25th and 26th December 2019, and 1st January 2020. The evidence proffered by the Complainant shows that he did not receive an appropriate payment for these days. I find that the Complainant is owed €420 in respect of the three public holidays.

In relation to the Complainant’s claim that he was not paid his annual leave entitlements on cessation of employment, I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2019 to the termination date.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

The evidence proffered by the Complainant shows that he worked 962 hours in the cognisable period. He has, therefore, accrued an entitlement to 76.96 hours in respect of annual leave at the rate of pay of €17.50 per hour.

I declare this complaint to be well founded.

I direct the Respondent to pay the Complainant €420 in respect of the public holiday entitlements and €1,346.80 in respect of the annual leave entitlement. In addition, I direct the Respondent to pay the Complainant €2,000 in compensation for breaches of the Act. For the avoidance of doubt, the Respondent is required to pay €3,766.80 to the Complainant in total.

Annual leave – public holidays- incorrect rate-