Complainant

Respondent

Parties

Declan  Fitzgerald

 OBK Construction Ltd

Representatives

Act

Complaint 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-00055959-002

04/04/2023

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

CA-00055959-003

04/04/2023

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

CA-00055959-004

04/04/2023

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

CA-00055959-005

04/04/2023

The complainant states that he commenced employment with the respondent on 24 April 2017. He states that he did not receive any terms and conditions of employment nor did he receive a contract. He states that he only worked 2 days a week as he is in receipt of disability benefit. He states that he received €120 per week. The complainant states that to date he has not received any holiday/annual leave pay nor as he received pay for public holidays since he started with the company.

The complainant states that the respondent advised him that he was not entitled to holiday pay. The complainant states that he left the employment in December 2022 as his mental health was suffering due to ongoing bullying and name calling by management of the respondent.

The respondent states that the complainant was employed with the company from April 2017 until he stopped turning up for work and resigned in or about 16 November 2022 and did not work or make himself available for work thereafter. The respondent refutes the allegations of bullying and states that it was unaware of any purported mental health issues the complainant was suffering.

The respondent states that efforts by the company to offer work to the complainant were ignored. The respondent provided copies of text messages where it asked the complainant his availability for work on 14, 19 and 23 February but the queries went unanswered. The respondent states that the complainant normally worked two days per week earning €120 per week and claimed disability benefit for the other days.

The respondent submits that retrospectively, the company received a number of documents in relation to the complainant as follows (i) form RP9 wrongfully contending he had been placed on lay off from 1 December 2022 to 2 February2023 (ii) letter regarding redundancy dated 2 February 2023 stating his last day of work was in December 2022 (iii) letter regarding non-payment of annual leave dated 2 February 2023 stating that his employment ended in December 2022 (iv) notice of termination letter from the complainant dated 16 February 2023 stating his employment end date as 20 February 2023.        

The respondent disputes the above documents and submits they do not have merit. The respondent states that the complainant’s last day in employment was 16 November 2022 and he did not return to work thereafter and no notice was furnished.

Terms and Conditions of Employment

The respondent submits that as the complainant was on disability allowance and claiming social welfare for the other three working days, the complainant was required to inform the Department of Social Protection of the terms of employment and payments received. The respondent states that it furnished the required documents to the complainant for the Department of Social Welfare at that time i.e. the terms and conditions of his employment with the respondent company. The respondent states that at no point did the complainant revert to it seeking further terms and conditions of employment and a formal contract of employment was not furnished for the complainant.

Holiday Pay/ Annual Leave

The respondent submits that the complainant lodged his claim on 4 April 2023 and therefore the annual leave period applicable is limited to the years 2022 and 2023. The respondent denies the complainant’s claim that he was not paid holiday pay. The respondent submitted that the total hours worked in the period from 1 January 2022 to 16 November 2022 was 680 hours. It states weeks 42 and 43 are traditionally builders’ holidays and the complainant took annual leave in those weeks. The respondent states that despite not working, the complainant was paid his full weeks wages and therefore was paid for his holiday leave. The respondent states that in week 46, the complainant only worked one day rather than two days. However, he was paid for the full week (overpaid one day’s work). The respondent states that in week 37, the complainant was paid for the full week while on sick leave.

The respondent states that the complainant’s last working day was Monday 14 November 2022 (week 46) and he did not turn up for collection on Wednesday 16 November 2022. However, the complainant was paid for the full week (overpaid one day’s work). The respondent states that week 47 was paid by the respondent accounts, albeit the complainant had stopped working and he was paid in error (overpaid two day’s work).

The respondent states that holiday pay is calculated at 8% of 680 hours which is 54 hours.

Less paid week 42 and 43                                            32 hours

Less week 46 (overpaid one day’s work)                    8 hours

Less week 47 (overpaid two day’s work)                  16 hours

Total                                                                                 56 hours

 The respondent states that therefore there was an overpayment to the complainant of 2 hours.

The respondent states that despite no holiday pay or public holidays monies due or outstanding, in December the company paid the complainant a further €660 in respect of any outstanding payments due.

The respondent states that €660 equates to [€120 per week for 16 hours per week, being €7.50 per hour] 88 hours

The respondent submits that this payment would cover any alleged non payment of annual leave for the relevant period (excluding the 56 hours already paid during the course of the complainant’s employment)

Pay for Public Holidays

The respondent states that as the complainant lodged his claim on 4 April 2023 the cognisable period for the claim is 6 months prior to that date therefore applies to the period the complainant worked or was available for work from 5 October 2022 until 14 November 2022. The respondent states that the only public holiday applicable to this period is 31 October which the complainant did not work.

The respondent reiterates that the complainant resigned without notice and did not return to work after 16 November 2022. The respondent submits that should any monies be outstanding, which it denies, the final payment of €660 would cover any public holiday entitlements.  

CA-00055959-002 - Terms of Employment (Information) Act 

Pursuant to the Terms of Employment (Information) Act, 1994 employees are to be provided with a statement of their terms and conditions of employment. In the within matter, I uphold the complainant’s claim and find that the respondent is in breach of the legislation in this regard. I find that this complaint is well-founded.

CA-00055959-003 - Holidays/Annual Leave Entitlement

Basedon the payslips and bank statements submitted by the respondent, I find that the complainant was paid his entitlements in respect of holidays/annual leave entitlements.  In this regard, I find that the complainant has not demonstrated a breach under the Act and therefore this complaint is not well-founded.

CA-00055959-004 - Public Holidays

The cognisable period for the claim is from 5 October 2022 until the complainant left the employment in November 2022. Therefore, the only Public Holiday during that period was 31 October. I find that the respondent did not pay the complainant in respect of the Public Holiday on 31 October. In those circumstances, I find that the complainant has established a breach under the Act and therefore this complaint is well-founded.

CA-00055959-005 - Compensation for loss of annual leave entitlement on leaving the employment

On the basis of the documentation submitted by the respondent and the final payment of €660 paid to the complainant in December 2022, I find that the complainant was paid monies owing in respect of his annual leave entitlements.  In those circumstances, I find that the complainant has not demonstrated a breach under the Act and therefore this claim is not well-founded.

CA-00055959-002 - Terms and Conditions of Employment 

I find that this complaint is well-founded. I award the complainant two weeks wages in the amount of €240.

CA-00055959-003 - Holidays/Annual Leave Entitlement

I find that this complaint is not well-founded.

CA-00055959-004 - Public Holidays

I find that this complaint is well-founded. I award the complainant payment in respect of the Public Holiday on 31 October 2022, the amount payable to the complainant is €60.

CA-00055959-005 - Loss of annual leave entitlement on leaving the employment

I find that this complaint is not well-founded.

Organisation of Working Time Act, Terms of Employment (Information) Act