Complainant

Respondent

Parties

Brendan  Toland

Mayfair Civils Ltd.

Complainant

Respondent

Representatives

  N/A

 Neil Manley Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046247-001

14/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00046247-002

14/09/2021

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

CA-00046247-004

14/09/2021

The Complainant commenced his employment as an Excavator Operator with the Respondent on 17 May 2021 and earned an average weekly wage of approximately €950. He stated that the Respondent did not pay him his overtime in accordance with the Sectoral Employment Order (SEO) for the construction industry and that he did not receive his holiday entitlements when he left the company’s employment.

The Complainant stated that he was paid €23 per hour and that he did not receive his full overtime payments in accordance with the SEO in respect of the hours he worked. Specifically, he stated that he did not receive his full overtime payments in respect of his wages paid on 11/06/2021, 25/06/2021, 02/07/2021, 09/07/2020, 16/07/2021, 23/07/2021 and 30/07/2021 and alleged that:

·        he worked 39.5 overtime hours over the course of these weeks

·        he should have been paid €34.50 (time +50%) for each overtime hour worked and

·        the pay shortfall in respect of his overtime was €1,362.65

He also claimed that he did not receive his annual holiday entitlements in the amount of €890 as well as payment for a public holiday which fell on 2 August 2021 for which he is owed €184.

The Respondent’s representative stated that a payment for tax free subsistence in the amount of €181 per week was included in the €23 hourly figure agreed with the Complainant.

The Respondent’s representative also stated that the Complainant had not properly highlighted that he was owed holiday pay in the complaint form that he submitted to the WRC because there was no reference either to the annual leave owed or the public holiday in the applicable boxes on the form.

CA-00046247-001:

This complaint relates to a breach of an ERO. As the Complainant was employed in the construction industry, his employment was covered by the SEO for the construction industry and not by an ERO, which only applies to workers in the Security Industry or Contract Cleaning. Accordingly, this complaint is misconceived and is therefore not well founded.

CA-00046247-002:

I find that the Complainant was employed by the Respondent as an Excavator Operator and that the SEO (S.I. No. 234 of 2019) for the construction industry applies to his employment. The SEO states that “The normal Working week shall consist of 39 hours worked between Monday and Friday each week” and that overtime must be paid at “time plus a half for any hours worked Monday to Friday from normal finishing time to midnight”.

Given that the Complainant was not paid the applicable overtime rate, namely time plus 50%, I find that this complaint is well founded.

CA-00046247-004:

The Law

Section 1 of the Payment of Wages Act 1991 states:

“ 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,

The Act at Section 5, in relevant part, provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an 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 a term 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.

And

5(6) Where—

(a) the total amount of any 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.

FINDINGS

I note the Complainant’s evidence that he did not receive the payment of his holiday entitlements.

While the Respondent highlighted that the Complainant had failed to particularise his holiday pay complaint on the form, I have regard to the case of Clare Co. Council –v- Director of Equality of Equality Investigations 2011 IEHC303 where Hedigan J stated

 “It is clear from the forgoing that because the EE1 form is only designed to set out the generality of the complaint, the complainants should be allowed to expand on matters not specified in the form, so long as the respondents are not taken by surprise or alternatively given adequate time to answer then there can be no injustice therein”.

It is clear from the complaint form in the instant case that the Complainant set out the holiday pay he says that he is due in biro. I also note that he attached a page to the complaint form setting out what holiday pay he is owed and that the Respondent received a copy of this. Accordingly, I am satisfied that the Respondent was not taken by surprise regarding the holiday pay complaint. 

Given that the Respondent was on notice of the complaint and in the absence of any evidence to suggest that the Complainant received his holiday pay, I find that this complaint is well founded.

CA-00046247-001:

This complaint is misconceived and is therefore not well founded for the reasons set out above.

CA-00046247-002:

For the reasons set out above, I find that the complaint is well founded and require that the Respondent pays to the Complainant compensation of €1,500, which I consider to be just, equitable and proportionate in circumstances where the Respondent failed to apply the statutory terms and conditions set down in Construction Industry Sectoral Employment Order S.I. No. 234 of 2019.

CA-00046247-004:

This complaint relates to the non-payment of holiday pay. As no evidence was presented to me to suggest that the Complainant received his holiday pay following the termination of his employment and I am satisfied that the calculations presented to me by the Complainant were accurate, I find that this complaint is well founded and that the Respondent should pay the Complainant €890.56 for the unpaid holiday pay as well as a further €184 for the unpaid public holiday pay he was entitled to, subject to the normal statutory deductions.