Complainant

Respondent

Parties

Robert Andrei Kurt

Dacandy Transport Limited

Representatives

Marius Marosan

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-00052388-001

24/08/2022

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

CA-00052388-002

24/08/2022

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

CA-00052388-003

24/08/2022

The complainant worked for the respondent as a driver from the 19 April 2022 to the 5 May 2022 and the within complaints concern annual leave entitlement, a statement of terms of employment and wages not paid to the complainant.

The complainant commenced working as a driver with the respondent on 19 April 2022.  He provided details to the manager for payment purposes shortly after commencing and there was an agreement that he would be paid €170.00 per day.  His last day of work with the respondent was 5 May 2022.  The complainant did not take annual leave during his employment, and he was not paid for annual leave when his employment ceased.  There were issues concerning the payment of wages to the complainant.  The respondent told the complainant that wages for the first 2 weeks of his employment were delayed as the accountant was on holidays and further advised that he would receive payment along with his contract of employment when the accountant returned.   The complainant left employment in the third week because he was not getting paid. 

There was no attendance by or on behalf of the respondent at the hearing.

There was no written statement, documentation or submission in respect of these complaints provided by or on behalf of the respondent to the Workplace Relations Commission or exchanged with the complainant.

The respondent was notified by way of correspondence from the Workplace Relations Commission to its registered address of the hearing arrangements for these complaints on 9 March 2023.  I established that the company remains on the register with the Companies Registration Office.  Accordingly, I am satisfied that the respondent was properly notified of the hearing arrangements and that it is appropriate for me to adjudicate on the complaints before me. 

In making my decision, I have had regard to the detail submitted on the complaint form, the oral submissions on behalf of the complainant and the uncontested, oral evidence of the complainant at the hearing. 

CA-00052388-001

This is a complaint that the respondent failed to provide the complainant with a statement of his core terms of employment.

Section 3(1A) of the Terms of Employment (Information) Act 1994, as amended, (the “1994 Act”) requires an employer to provide an employee with a written statement of the particulars of certain terms of the employee’s employment not later than 5 days after the commencement of the employee’s employment.

The complainant outlined at the hearing the agreement that he would work as a driver for the respondent, his interactions with the respondent’s manager and he also provided copies of payslips.  Based on the evidence and submissions on behalf of the complainant, I am satisfied that the complainant comes within the scope of the 1994 Act and that he did not receive the written statement as required by section 3(1A) of the 1994 Act.

I note section 7(1A) of the 1994 Act which provides: -

“An employee shall not be entitled to present a complaint under Part 4 of the Workplace Relations Act 2015 in respect of a contravention of section 3(1A)-

(a)   unless the employee has been in the continuous service of the employer for more than one month, or

(b)   if the employer concerned has been prosecuted for an offence under this Act in relation to the same contravention.”

The complainant stated that he left the workplace in the third week of his employment due to issues with pay.  He confirmed that there was some contact between the complainant and manager thereafter but there was no meeting, and the complainant did not return to work.

I find that the complainant was not in the continuous service of the respondent for more than one month.  In such circumstances, I do not have jurisdiction to adjudicate on a complaint of a contravention of section 3(1A) of the 1994 Act and find accordingly that this complaint is not well-founded.

CA-00052388-002

This complaint concerned non-payment of wages to the complainant in respect of the 3-week period he worked from 19 April 2022 to 5 May 2022.  The complainant’s evidence was that he did not receive any wages from the respondent in respect of this period of employment.

The complainant submitted three payslips evidencing the hours he worked and what he ought to have been paid. 

I am satisfied on my review of the payslips that they correspond to the evidence given by the complainant regarding the days worked from the commencement to cessation of his employment with the respondent.   The complainant’s evidence that he received payslips but did not receive wages was uncontested.  

I find that the complainant worked 12 days over a 3-week period and that the wages properly payable to the complainant were €170.00 per day.  I am satisfied that the non-payment of same amounts to an unlawful deduction within the meaning of section 5 of the 1991 Act. 

I therefore find in accordance with section 6 of the 1991 Act that the complaint of a contravention of section 5 is well-founded and I direct the respondent to pay to the complainant compensation of €2,040.00.

CA-00052388-003

The complainant did not take annual leave during the period of his employment with the respondent in April and May 2022 and he was not paid for annual leave accrued but untaken on cessation of his employment.

The complainant was entitled to receive payment for any accrued and untaken annual leave on cessation of his employment in accordance with section 23 of the Organisation of Working Time Act 1997 (the “1997 Act”).

Section 27(3) of the 1997 Act provides:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I am satisfied that the complainant had accrued annual leave entitlement in accordance with section 19 of the 1997 Act and calculate that accrued and untaken leave on cessation of his employment to amount to 11.5 hours.  I find that the complainant ought to have been paid the sum of €163.00 for the loss of that leave on cessation of his employment with the respondent.   

Having regard to all of the circumstances, in particular the uncontroverted evidence of the complainant in relation to seeking payment from the respondent and the respondent’s failure to observe the complainant’s entitlement under the 1997 Act, I consider it just and equitable that the respondent pay to the complainant compensation of €1,050.00 for breach of the 1997 Act.

CA-00052388-001

I find that this complaint pursuant to the Terms of Employment (Information) Act 1994, as amended, is not well-founded for the reasons outlined above.

CA-00052388-002

I find that this complaint of a contravention of section 5 of the Payment of Wages Act 1991 is well-founded and direct the respondent to pay to the complainant compensation of €2,040.00.

CA-00052388-003

I find that this complaint of a contravention of section 23 of the Organisation of Working Time Act 1997 is well-founded and direct the respondent to pay to the complainant €163.00 in respect of the loss of annual leave accrued at the time of cessation of employment, and €1,050.00 in compensation for the contravention of section 23 of the 1997 Act.

Core terms of employment – Service – Payment of wages – Annual leave