Complainant

Respondent

Parties

Gints  Liepins

Millview Farm Ltd

Representatives

Owen Sweetman                               (Owen Sweetman & Co Chartered Accountants)                                Geraldine Giles                                                                    

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-00045069-001

06/07/2021

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

CA-00045069-002

06/07/2021

The Complaints come before the Workplace Relations Commission on foot of a workplace relations complaint form prepared by the Complainant on the 6th of July 2021.  

This matter was heard over the course of two days 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 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 to all witnesses as appropriate. The Translator provided by the WRC also made an Affirmation. It is noted that the giving of false statement or evidence is an offence.

The Complainant was not represented and made his own case. An interpreter was made available to the Complainant to assist him in the making of his case. On the second day of the hearing I was   I was provided with supplemental documentary evidence which I had sought in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent company was represented at the hearing. The company Accountant (OS) was present together with the HR Manager (GG). The Respondent provided me with payslips and Banking details and the Terms and Conditions of Employment. All evidence was heard following an Affirmation/Oath. The Respondent was questioned by the Complainant.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this two-day hearing. The Complainant commenced his employment as a farm labourer/general operative in and around July of 2015. His rate of pay was €10.15 per hour.

The parties agreed that annual leave was to be calculated in accordance with section 19 of the Organisation of Working Time Act 1997 and in particular agreed that this Employee became entitled to Annual Leave at a rate of 8% of the hours worked up to 4 working weeks.

Issues concerning attendance arose in the workplace. The employment ended on the 19th of January 2021 at which time the Complainant states that he became immediately entitled to any annual leave which had accrued to him in the relevant leave period immediately preceding that date. In evidence, the Complainant confirmed that he had been away during the period of Covid shutdown (starting March 2020) and had returned to the workplace in and around June the 10th 2020 and it is the seven-month period between June 2020 and January 2021 that the Complainant says that he became entitled to his Statutory Annual Leave which should have been paid to him on his departure as he had not taken same.

The Complainant calculated that he was entitled to 137.26 hours Annual Leave at a rate of €10.50 per hour.

I have been presented with a copy of the payslip dated the 31st of January which shows the Gross sum of €1,439.00 becoming a nett figure of €1,379.00 after deductions. I have also been shown a statement signed by the Complainant confirming that he took the sum of €1,3870.00 as a cash payment on the 1st of February 2021. The signature is quite distinctive and is repeated on the payslip.

The Complainant denies the signature is his and certainly denies ever having received the sum of money (€1,380.00).

The Employer was represented by it’s Accountant and an internal HR Manger. The Employer provided time sheets that appear to have been initialled by the Complainant. The Employer evidence is that the initials are in much the same hand as the full signature as seen on the statement and payslip which they have introduced as documentary evidence of a cash lump sum having been paid. Having considered this proposition I cannot say that I am convinced either way. I am not a handwriting expert. Other documents provided by the Respondent were not helpful as the Complainant appears to have used a block letter version of his name e.g. in the Contract of Employment.

I asked the Complainant to come back to me with evidence that the signature provided was not his. I gave as an example of a driver’s licence or passport or other official document – preferably pre-dating the 31st of January 2021. His Passport when presented was almost indecipherable, and his Public Services Card again had a block version of his name and post-dated the hearing.

The Company Accountant gave evidence that everything was in order when the Complainant had left the workplace. He was fully paid up in terms of all of his entitlements. In fact, he says that the Complainant was perhaps paid the sum of €2,300.00 on his departure from the workplace as he (the Complainant) had made a case for other expenses due and owing to him. To substantiate this, I was shown a photocopy of a check stub together with a Bank Statement showing the amount of €2,300.00 being withdrawn. However, this evidence appears to contradict the assertion that the Complainant was brought into the office and given a cash payment in satisfaction of his annual leave.

This was a very difficult set of circumstances. On the one hand the Complainant is effectively saying he has been defrauded out of his entitlements by his Employer and on the other hand the Respondent is saying there is an attempt to gainsay the fact that there has been full and final discharging of the monies owed.

I note that the individual who apparently witnessed the handing over of a cash payment did not give evidence. In fact, nobody from the Respondent side was able to give evidence of why there would be a departure form the normal method of running a payment through payroll. Nobody gave evidence on when and where the money was handed over, how it was handed over and the denominations used etc.

Certainly, the Complainant could not provide detail as he states it never happened.  

On balance. I find I am persuaded by the Complainant that he never received the money which represented the Complainant’s Annual Leave entitlements.

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

CA-00045069-001 – The Complaint herein was well founded, and the Complainant and I require that eh Respondent should pay to the Complainant the sum of €1,439.00

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

CA-00045069-002 – The Complaint herein relates to the same facts and is repetitious.