Complainant

Respondent

Parties

Oghogho  Omoregie

One Complete Solutions Limited (OCS) OCS

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Lydia Dodd IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047578-001

09/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047578-002

09/12/2021

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

CA-00047578-003

09/12/2021

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

CA-00047578-004

09/12/2021

The complainant gave his evidence under affirmation.  The three witnesses for the respondent – the Contract manager, the Senior HR Advisor and the Payroll and HR specialist, each gave their evidence under affirmation. Each party was permitted to cross examine the witnesses for the other party. 

The complainant began working for the respondent on 23 July 2020 and resigned from his employment with effect from 12 December 2020.

CA-47578-001

The complainant submitted that he did not receive notification of a change in the terms of his employment.

CA-47578-002

The complainant submitted that he received a statement of his terms of employment which deliberately contained information that was false or misleading.

CA-47578-003

The complainant submitted that he was not paid a Sunday premium

CA-47578-004

The complainant submitted that he received payment that was less than he was due.

CA-47578-001

The respondent refutes the allegation and submits that the complainant was provided with a statement of his terms at the start of his employment.  It further submitted that all relevant information was and continued to be furnished to the claimant in a timely manner, up to his resignation.  The respondent submitted that complainant did suffer any detriment and according to caselaw, should not be entitled to succeed in any such claim.

CA-47578-002

The respondent refutes allegations that the claimant was issued with terms and conditions of employment which deliberately contain false or misleading information and submits that there was a clerical error in his contract of employment.

CA-47578-003

The respondent submitted that the complainant received a Sunday premium allowance of €3.44 per hour and that this was reflected in his payslips.

CA-47578-004

The respondent submitted that the difference in payment to the complainant is down to a clerical error and is therefore entitled to rely on the clear wording of the legislation (Section 5(6)) where there is an exception relating to the non-payment of the incorrect rate which is attributable to an error of computation.

CA-47578-001

The complainant submitted that he did not receive notification of a change in the terms of his employment.  The respondent submitted that he was at all times in receipt of the relevant information.  Both parties gave evidence in relation to this matter and while the complainant submitted that his contract stated a greater amount in relation to Sunday payment, the respondent indicated that the contract contained an error in this regard.  From the time the complainant raised the issue with his rate of pay, the respondent has maintained that his contract contained an error. The respondent confirmed that at no stage was a correct version of the contract issued to the complaint.  Therefore, it is not correct to maintain that the complainant was “at all times in receipt of the relevant information”, certainly not in writing as required by the Act.

As to the issue of detriment, the respondent rejected the claimant’s contention that the provisions of the Terms of Employment (Information) Acts 1994 to 2014 were contravened. The respondent continued by suggesting that in the unlikely event that any such contravention was to come to light in the investigation of this matter at the WRC, the Adjudication Officer is respectfully requested to have regard to the Labour Court Determination in Grant Engineering v Denis Delaney (No. TED1728) in which the Court found that it was: “... clear to the Court that the within appeal derives from complaints as regards alleged contraventions of the Act which have had no practical impact on the Appellant during his employment with the Respondent.”

The respondent noted that it had been agreed between the parties that the Appellant in that case had suffered no detriment as a result of the contraventions of the Act.

The respondent submitted that in that determination, the Court went on to cite Patrick Hall v Irish Water [TE15/6], and considered the nature of complaints which could be argued to derive from events or alleged contraventions of law which have no practical effect and commented as follows:

“As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs of providing the Complainant with a hearing of these complaints at first instance and it is not obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringement of which he complains had not occurred.”

The respondent suggested that no breaches of The Terms of Employment (Information) Act 1994 have occurred and continued by citing details of the unnamed case of a female employee of a longer employment period indicating that she had not suffered any detriment.

Having regard to the named cases cited by the respondent, I note that in the first case, it had been agreed that the complainant suffered no detriment and that when it considered the matter of the rate of remuneration, the Labour Court held that this aspect of that case was well founded

“That the statement did not, in accordance with the Act at section 3(1)(g), specify the rate or method of calculation of the employee’s remuneration and the pay reference period for the purpose of the National Minimum Wage Act 2000.

It is clear that the statement did not provide this information. The complaint of the Appellant is well founded.”

It was not agreed by the parties in this case that the complainant suffered no detriment.  I am satisfied that not being given a written statement of the correct rate of remuneration amounts to a detriment in the instant case and accordingly, I find that this element of the complaint is similarly well founded.  I find that when the respondent became aware of the error in the complainant’s terms and conditions, there was an onus upon it to issue an amended statement of the correct terms and conditions of the complainant’s employment.  That it did not do so while continuing to accept that it had made an error in the original terms is somewhat concerning.  Accordingly, I find that an award of compensation equal to two weeks pay is just and equitable in all the circumstances of this complaint.

CA-47578-002

The complainant submitted that he received a statement of his terms of employment which deliberately contained information that was false or misleading. The respondent noted that this simply a clerical error.  The complainant did not provide any evidence in support of his contention that the incorrect information was deliberately given to him.  I am not satisfied that the complainant has established that the incorrect terms provided to him were anything more than a clerical error and accordingly I find that this element of the complaint is not well founded.

CA-47578-003

The complainant submitted that he was not paid a Sunday premium.  However, in evidence the complainant agreed that he was paid a Sunday premium, albeit lower than that indicated in his contract.  Accordingly, I find that this element of the complaint is not well founded.

CA-47578-004

The complainant submitted that he received payment that was less than he was due.  In response the respondent indicated that the complainant was paid what was due to him and that this rate was applicable across the company and was in accordance with industry norms.  The respondent accepted that although it was not what was indicated in his contract, as a result of a clerical error, the amount paid to the complainant was the amount properly payable to him.  Having regard to the evidence given by the Payroll specialist, I am satisfied that the amount properly payable to the complainant within the company was €3.44.  I am also persuaded by the evidence of the Senior HR advisor that this was a standard rate across the industry (tied into an old JLC rate) at that time.

Having regard to the written and oral evidence, I am satisfied that the complainant was paid the amount of wages that were properly payable and due to him in the circumstances.  Accordingly, I find that this element of the complaint is not well founded.

CA-47578-001

Having considered all the written and oral evidence in relation to this complaint, and my finding that this complaint is well founded, my decision is to award the complainant compensation equal to two weeks’ pay, i.e. 87.37 hours x €11.65 per hour. amounting to a total award of €1017.86 which I consider to be just and equitable having regard to all the circumstances.

CA-47578-002

Having considered all the written and oral evidence in relation to this complaint, my decision is that this element of the complaint is not well founded.

CA-47578-003

Having considered all the written and oral evidence in relation to this complaint, my decision is that this element of the complaint is not well founded.

CA-47578-004

Having considered all the written and oral evidence in relation to this complaint, my decision is that this element of the complaint is not well founded.

Terms of Employment (Information) Act – well founded – award – Organisation of Working Time Act – Payment of Wages Act – not well founded.