Complainant

Respondent

Parties

Przemyslaw  Kaszo-Zgiepsri

Roadfleet Haulage Ltd.

Representatives

 Warren Parkes Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00050535-001

04/05/2022

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

CA-00050535-002

04/05/2022

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

CA-00050535-003

04/05/2022

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

CA-00050535-004

04/05/2022

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

CA-00050535-005

04/05/2022

The complainant says that as a result of the number of hours he worked his wages fell below the national minimum wage. He also says he was denied annual leave and a statement of his terms of employment

The complainant was unrepresented and gave his evidence on affirmation.

In respect of complaints CA-00050535-001 and 002 related to the payment f the minimum wage he did not offer any evidence to ground the complaints. He stated that it was impossible for him to prove his case under the National Minimum Wage Act.

Regarding the cognisable period when asked why he had not made his complaints earlier the complainant said that he feared that the respondent would stop paying him altogether.

The complainant also said that his main complaints related to his public holiday and annual leave entitlement. He said that the complaint form had been prepared by a professional and may have included complaints he did not wish to pursue, other than those two.

Under cross examination the complainant was asked whether he had made any complaint about not being paid between September and November 2021 as he had alleged. He replied that he had been going to complain but, in the end, did not.

He mentioned it to Sean Gallagher who told him he did not have time to deal with it and nothing further was done. (In response to a later question from the Adjudicator the complainant said that he was told in October that the respondent would ‘see you in court’ and in November that he was told that it would not be paid.)

He also accepted that he had taken the annual leave as outlined in the respondent‘s submission, although in relation to the leave in January he was not sure but accepted that he ‘probably’ had.

However, he said that he had not received his last pay packet of €250.

The respondent outlined that it operated a software system known as Optrak which records daily activities of their drivers and provides detail on their movements.

The records show that in both 2021 and 2022 the complainant had been paid the national minimum wage on the basis of his hours worked and rate of pay. In fact, they indicate that he was overpaid. In respect of any manual entry that might be made this was done by the driver.

While the complainant says that he received no annual leave the records contradict this.

Evidence was given of his having had time off in weeks 40, 41 and 42; a total of six weeks and also a period of unpaid leave. It is accepted that the complainant had also had some time off which was not paid but he was paid for all statutory leave due to him.

It notes that in one week (44) on October 6th, 2021, he was paid in full although the Optrak record indicates that there were no driving hours that week.

In relation to the public holidays there were four in dispute, but all had been honoured; the October holiday was paid in his November annual leave payment, and the three over the Christmas period were paid in January.

The respondent submits that the complainant was over-compensated for his annual leave. While the company was based in Donegal and the complainant‘s base was in Ashbourne, Co Meath his wages were forwarded to him every Friday.

Ms Geraldine Gallagher gave evidence on affirmation for the respondent. She stated that the complainant had been paid by means of credit transfer to his bank but that he had requested that he should be paid in cash around July 2021 and this was what happened from then on.

She could not explain how the complainant would not have received his final week’s wages of €250.

As strongly hinted in his evidence, a number of these complaints appear to have been made without the complainant being fully aware of their implications.

He told the hearing that his complaint form had been prepared by ‘a professional’ and that he was really only interested in pursuing two complaints; that related to his annual leave and public holidays. (Some allowance must be made in that regard for the fact that English is not the complainant’s first language).

While the burden of proof is on a complainant and in this case the quality of his evidence was weak, what made things worse for him was that the respondent’s rebuttal of these complaints was credible and persuasive, based as it was on well-maintained records. 

Some sample of the detail provided to the hearing in respect of the leave is set out above and it was only partially disputed by the complainant to the extent that one element of it was only ‘probably’ correct; that which related to his leave in January 2022.

It is rather unlikely that the respondent’s records experienced some sort of glitch in respect of that period that rendered them inaccurate, and I do not accept that they were.

He did not present any evidence in respect of the first two complaints, but again the respondent’s records offered a credible picture of the complainant’s working hours and therefore complaints CA-00050535-003 and 004 are not well founded.

In respect of his complaint that he did not receive a copy of the statement of his Terms of Employment, the respondent submitted an unsigned document purporting to be that document.

The statement of Terms of Employment is an important document, not some minor administrative step at the point of commencement of employment. Indeed, the requirements in respect of it have been strengthened in recent years which underlines its importance.

There is, of course, no requirement that the statement be signed by the employee. While it is often colloquially and loosely referred to a ‘contract’ strictly speaking it is not, although its terms may be incorporated in a wider contract in such a way as to comply with the Terms of Employment (Information) Act.

Nonetheless, a signature acknowledging receipt of the document will provide evidence of compliance with the statutory obligation to supply the statement. That is a simple task and failure to comply with this important requirement, and to demonstrate that one has done so will ground a successful complaint under the Act.

Complaint CA-00050535-005 is therefore well-founded.

Finally, while it is not possible to address the complainant’s complaint about what he alleges was his missing final pay packet, as a complaint in respect of it was not included on the complaint form, the actions of the respondent in this regard leave a good deal to be desired.

While an employee may have a preference to be paid in cash, at the very least an employer must have a reliable means of paying them and maintaining a record of having done so.

The failure to offer an explanation as to how the complainant might not have got his wages is unacceptable. The respondent should have a clear system in place that will enable it to demonstrate that wages have been paid.

For the reasons set out above, Complaints CA-00050535-001, 002, 003 and 004 are not well founded.

Complaints CA-00050535-005 is well founded and I award the complainant two weeks wages in the amount of €714 in total for the breach of the Act.

Payment of wages, National minimum Wage,