ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033162
Parties:
| Complainant | Respondent |
Parties | Damien O'Brien | Kbk Construction Service Limited |
Representatives | Thomas Faulkner Connect Trade Union |
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Complaint(s):
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-00043830-001 | 30/04/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00043830-003 | 30/04/2021 |
Date of Adjudication Hearing: 22/02/2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace relations complaint form dated the 30th of April 2021 was submitted within the time allowed.
In addition to the foregoing, the Complainant herein has referred one complaint:
The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.
In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.
Background:
The Complainant issued a Workplace Complaints form on the 30th of April 2021 seeking money he says was due and owing at the end of a ten-week period of employment with the Respondent company. The employment relationship herein terminated on the 13th of November 2020. |
Summary of Complainant’s Case:
The Complainant says that the Employer failed to pay him the agreed rate of pay for every hour that he worked for this employer. In addition, he claims to be entitled to annual leave pay for accrued leave that he did not take before the end of the employment. The Complainant was represented at the hearing and I was provided with a full submission with appendices. The Complainant gave evidence on his own behalf and gave an affirmation. |
Summary of Respondent’s Case:
The Respondent did not attend this hearing. I am satisfied that the Respondent was aware of the time and date of the proposed hearing and I am satisfied that the Respondent Managing Director/owner communicated with a member of the WRC staff within the 24 hour period directly before the hearing. |
Findings and Conclusions:
I have carefully listened to the evidence adduced. I accept that the complainant herein was engaged by a Mr. F the Managing Director/owner of the Respondent company. The employment commenced on the 2nd of September 2020 when the Complainant was engaged as a skilled carpenter on a third party site. The said site was being run by KS and Co and I am satisfied that the third party had no obligation to remunerate the Complainant as this duty fell to the Respondent. All parties knew this to be the arrangement. For reasons that were never satisfactorily explained to the Complainant, the Respondent never paid the correct weekly remuneration to the Complainant. The Respondent did not keep records and it is not clear if the Respondent paid pension contributions. After about ten weeks of being paid significantly less than what he was owed, the Complainant considered terminating this employment and engaged a member of the Connect Union to recover lost and/or unpaid remuneration. I understand that the Employer agreed with the Union Representative that the Complainant was still owed the sum of €3,750.00 and advised that this sum would be paid into the Complainant’s account on or about the 6th of November. This money was never paid and the complainant resigned his employment. In his comprehensive submission, the Complainant representative detailed the monies due and owing based on a 42.5-hour week at the appropriate industry rates of pay. The Respondent had deducted the Complainant’s remuneration to the value of four weeks of wages. The Complainant was owed €3,532.92. The Complainant was also owed for unpaid leave which accrued to him based on every hour of work completed. The Complainant had also missed a Bank Holiday payment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00043830-001 - This complaint is well founded and I direct that the Respondent company pay to the Complainant the sum of €3,535.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00043830-003 - This complaint is well founded and I direct that the Respondent company pay to the Complainant the sum of €880.00 |
Dated: 14th June 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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