Complainant

Respondent

Parties

Veaceslav  Gafton

Mc Flanagan Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044101-001

15/05/2021

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.

The Complainant, his interpreter, Mr Mark Flanagan and Mrs Catherine Flanagan, all swore an Affirmation

The Complainant commenced employment on 9 March 2021 with 9 April 2021 as the stated date of termination. He stated he worked an additional date for the purposes of training on 23 February 2021.  

The complaint related to payment for the training day, annual leave and public holidays.

The Complainant gave evidence that he was due payment for his annual leave accrued during his period of employment, the two public holidays, St Patrick’s Day and Easter Monday and the day he spent training with the Respondent on 23 February 2021.

There was an issue as regards the daily gross rate of pay as there was no contract of employment of employment. The Complainant stated he was paid a daily rate of €120 net which included subsidiaries but did not know how much his gross pay was. He stated he worked 7 days for the majority of time he was employed.

The Respondent was unable to advise of the gross wage paid to the Complainant. Mr Flanagan gave evidence that the Complainant was paid €120 net a day which included subsidiaries of €34 per day. He stated he paid the relevant income tax and PRSI contributions, as required by law. Payslips were provided by the Respondent. The Respondent did not deny that the Complainant worked 7 days a week for the period of his employment.

In terms of the Complainant’s claim, Mr Flanagan did not dispute that the Complainant was not paid for annual leave, public holidays or for the training day on 23 February 2021. He said the Complainant was only paid for the days he worked. The Respondent submitted that the Complainant requested to go on a truck with another driver and accepted in cross examination that he agreed to allow him go as a training day. Mr Flanagan gave evidence that the Complainant was entitled to 29 annual leave days per annum and public holidays would be paid at the end of the year. It was Mr Flanagan’s evidence that he told the Complainant in response to his request for public holiday and annual leave that; “ I said you are not entitled to holiday pay , you were training for 8-9 days of that period” . In relation to the Complainant public holidays, he accepted in evidence that he “didn’t pay for public holiday”.

Having reviewed the payslips and based on a daily rate wherein gross wage of €157.50 per day with a daily subsidy of €36.97 based on the payslips of 30 March 2021 and 6 April 2021. Regardless of whether an employee is training or not , he is entitled to paid by the employer. There was nothing in writing provided in evidence to demonstrate that there was an agreed lesser rate paid to the Complainant for any training day.

In the circumstances, where there was no dispute from the Respondent as to the claim made by the Complainant, I find it is well founded.

Where the complaint has been well founded, and in terms of redress, Section 27 (3) of the Organisation of Working Time Act 1997 provides:

“(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

I order the Complainant to be paid the compensatory sum of €1,361.32 which equates to one week’s renumeration based on the fact the Complainant was only employed for a period of four weeks with the Respondent and therefore, is just and equitable in the circumstances.

Organisation of Working Time – Annual Leave- Training Day -