ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037137
Parties:
| Complainant | Respondent |
Parties | Aurel Iulian Nechita | Keegan Quarries Ltd |
Representatives | Aurel Nechita | No attendance |
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-00048513-001 | 07/02/2022 |
Date of Adjudication Hearing: 23/03/2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Notification of the hearing was issued to the Respondent at the email address provided. When arranging the links for the hearing, the host of the hearing contacted the Respondent and spoke to a contact name in Finance provided by the Complainant. That person advised he would not be available to attend but did provide the email address of Mr John Keenan as the place to send the link. When there was no attendance by the Respondent, the host rang the Respondent office to be told that both Mr Keegan and the named employee in Finance were out of the office. The hearing proceeded on the basis of the sworn evidence of the Complainant who stated that he had tried to contact the Respondent to resolve the matter but received no answer.
Background:
This case is concerned with a claim that the Respondent underpaid the Complainant in not paying his full wages for hours worked and did not pay for his leave entitlement when the employment was terminated by the Complainant who says that he left when he was asked to work ‘illegal’ hours of work with inadequate breaks for a driver between his shifts.
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Summary of Complainant’s Case:
The Complainant confirmed the following details of his complaint: Date of commencement: 08.11.2021 Date employment ended: 26.11.2021. His rate of pay was 13.80 per hour plus travel and subsistence Hours worked and payments received: Week 1- worked 52 hours-paid for 1-he was told the Respondent had a policy of holding back 50 hours from the first weeks’ pay for some reason. Week 2-worked 57.5 hours paid 56.75 hours Week 3 worked 48.5 hours-final payment of €718.97 gross received The Complainant provided payslips and clock records. A period of 30 minutes was deducted for breaks or each day worked. His complaint is that he was underpaid in wages and also that he should have received an additional 8% in holiday pay in his final payslip. |
Summary of Respondent’s Case:
There was no information available for consideration. |
Findings and Conclusions:
At the hearing, the Complainant was informed that the WRC cannot award any payment in respect of travel and subsistence-only unpaid wages. There was an underpayment of wages based on hours worked. As the Complainant worked in excess of 120 hours over a three-week period, he accrued an entitlement to holiday pay calculated at 8% of his wages in that period. Payable wages were withheld from the Complainant without his agreement or any term of a contract which is a breach of the Payment of Wages Act 1991 at Section 5(1). It should be noted that the Complainant did not receive a written statement of his terms of employment. PAYMENT OF WAGES ACT 1991 Regulation of certain deductions made and payments received by employers. 5.— (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. All compensation awarded by an Adjudication Officer under the Payment of Wages Act must be expressed in nett terms. Having reviewed the payslips I calculate that the Complainant worked 157 hours in a three-week period. Based at an hourly rate of 13.80 per hour he should therefore have received 157 x €13.80 = gross wages plus 12.56 hours of holiday pay giving a total of 169.56 hours at 13.80 or €2339.93 gross. Allowing for tax deductions he was paid €1592.80 gross wages by the Respondent leaving a shortfall of €747 gross. In nett terms this is estimated at €597. This is the amount the Complainant is to receive in compensation. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00048513-001 Payment of Wages Act 1991 The complaint by Complainant of wages unlawfully withheld from him by the Respondent is well Founded. Keenen Quarries Limited are to pay Aurel Nechita the sum of €597 nett in compensation. |
Dated: 11th April 2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Wages/Holiday Pay Withheld |