ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044826

Parties:

	Complainant	Respondent
Parties	Danny Kearns	Grant Engineering (Ireland) Unlimited Company

	Complainant	Respondent
Anonymised Parties

Representatives

Ms. ÁIne Feeney, SIPTU

Ms. Aleksandra Tiilikainen, IBEC

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-002	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-003	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-004	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-005	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-006	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-007	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-008	18/03/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00055593-009	18/03/2023

Date of Adjudication Hearing: 02/10/2023

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant is a long-standing employee of the Respondent. On 18th March 2023, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that he had been paid at an incorrect rate in respect of certain duties he fulfilled. In denying this allegation, the Respondent submitted that the Complainant was paid at the correct rate at all times.

A hearing in relation to this matter was convened for, and finalized on, 2nd October 2023. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant gave evidence in support of his own complaint, while a HR Manager gave evidence in defense. Both parties issued extensive submissions in advance of the hearing and subsequently expanded upon the same. At the outset, it was agreed that the various complaints could be dealt with under one complaint reference.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

Summary of the Complainant’s Case:

The Complainant has been engaged as a welder by the Respondent since 2017. In addition to these duties, the Complainant occasionally assumed the duties of a “tester”. When the Complainant assumed these duties, he was paid an additional sum of €5.92 per day.

In September 2022, the Complainant worked in this role and, thereafter, did not receive the additional rate of pay. When this was queried with his line manager, he was informed that the rate was only applicable when he carried out the duties on a full time basis. In evidence, the Complainant stated that had previously been paid the rate for single days in the past, and was never informed that this position was to change.

The Complainant stated that he attempted to resolve this matter through the appropriate internal channels but received no substantive response. Finally, he submitted that the total amount of the alleged underpayment came to €47.36

Summary of the Respondent’s Case:

In denying this allegation, the Respondent submitted that the Complainant had been properly paid for all work completed. In this regard, the Respondent submitted that the Complainant only becomes entitled to the higher rate of pay when he completes the duties on a permanent basis. In this regard, the Respondent submitted that they make no provision for a changeable daily rate of pay.

Findings and Conclusions:

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

Regarding the present dispute, the Complainant has alleged that the correct rate of pay was not assigned to work he completed, with direct consequence of his being underpaid by the sum of €47.36 over period of time. In dispute this allegation, the Respondent submitted that such rates of pay are only applicable when the employee is permanently assigned to the role.

It is apparent that the parties are in dispute as to the manner by which persons that are not completing their normal duties are paid. In this regard, I note that the Complainant gave direct evidence of occasions whereby he was paid a increased amount on a daily rate, and submitted payslips in support of this position. By response, the Respondent outlined their general position regarding such matter stating that any increase in pay was an anomaly.

Having considered the forgoing, I find that the Complainant has given direct, corroborated evidence of the payment of such wages in the past. In addition to the foregoing, there is no evidence of the Respondent expressly stating that wages are not to be paid in this manner. In such circumstances, I find that the Complainant has established an implied contract right to be paid the additional rate. Having regard to the foregoing, I find that his complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00055593-002

I find that the complaint is well-founded.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed. In this regard, I award the Complainant the sum of €47.36. This payment should be subject to all normal deductions as income.

CA-00055593-003