FULL RECOMMENDATION
PARTIES :FIRST UP SLU T/A MASTER STONEMASONS
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00029658 CA-00039424-003 Position of Complainant Claim for Overtime - The Complainant gave evidence to the Court that he was issued with a company van and instructed by management to collect other workers and drop them home again. He submits that these duties added an average of an extra 3 hours work to his basic working day. The complainant submits he is owed a total of €51,714 in unpaid overtime arising from the time he spends picking up and dropping off colleagues. Rate of Pay - In October 2019, the respondent unilaterally discontinued a €50 payment that he was paid for carrying out Team Leader duties. After a couple of weeks the complainant questioned if he would be getting this money restored soon and he was told no, but he must remain doing the role as Team Leader. Position of Respondent Claim for Overtime - Mr Bernard McEnroe, General Manager, gave evidence on behalf of the Respondent. Mr McEnroe told the Court that the Complainant is a Category B General Operative under the Sectoral Employment Order (Construction Sector) 2021 (SEO). He was provided with a company van. Workers are not obliged to take a company van and the complainant was not instructed to collect or drop any workers to or from work sites. The onus is on construction workers themselves to be at their place of work for the starting time each day. The Complainant is not working for the company while travelling to and from work. The complainant has no entitlement to be paid while commuting to work and/or carpooling with colleagues. Rate of Pay - This complaint relates to October 2019. The complaint was submitted to the Workplace Relations Commission on 28 August 2020. As s41(6) of the Workplace Relations Act 2015, specifies that the last date of alleged contravention applicable to this claim is 29 February 2020, the complaint is out of time. Notwithstanding the above, the complainant was not employed as a Team Leader and was not in charge of any employees. A manager entered into a local arrangement with the Complainant to pay him €50 a week for carrying out extra duties in relation to measuring work. The Complainant did not carry the work as requested and the arrangement was discontinued. The Applicable Law “(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.” Section 5 of the Payment of Wages Act 1991 provides in part as follows:(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. (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. Determination To ground a claim under the Payment of Wages Act 1991 the Court needs in the first instance to ascertain what wages are properly payable. Section 5(6)(a) of the 1991 Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.Claim for Travelling Time/ OvertimeThe Complainant submits that he is entitled to overtime payments for driving colleagues to and from work. The Court heard evidence from the Complainant that he was asked and agreed to collect and drop colleagues to and from work sites. Mr McEnroe on behalf of the Respondent gave evidence that workers are not obliged to take a company van and are not instructed to collect or drop any workers to or from work sites. The onus is on construction workers themselves to be at their place of work for starting time each day.On balance based on the evidence submitted the Court is satisfied that the use of a company van to drop colleagues to and from work was an informal arrangement between the parties. The Court finds that the Complainant was not working for the Respondent while travelling to and from work and so is not entitled to claim overtime for these hours. As a result, the Court finds that this element of the complaint is not well founded. Rate of Pay The Complainant submits that in October 2019 his employer discontinued a €50 weekly allowance that was paid to him for carrying out additional duties. The Respondent gave evidence that the Complainant was not a Team Leader and was not entitled to be paid an allowance for work that was not undertaken. The Complainant provided no documentary evidence to the Court that a €50 weekly allowance was properly payable to him for carrying out additional duties, or that he was ever in receipt of such a €50 weekly allowance. It is clear that the complaint was lodged outside the six-month time limit set out in section 41(6) of the Workplace Relations Act, 2015. No application was submitted to extend the time limits. As a result the Court finds that this element of the complaint is out of time and so is not well founded. For the reasons set out above, the Court determines that the within complaint is not well founded. The Decision of the Adjudication Officer is upheld. The Court so determines.
Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
