ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037904
Parties:
| Complainant | Respondent |
Parties | Kieran McGettigan | Jayden & Preston Limited Trading As Parcel King (amended at the hearing) |
Representatives | In person | Emeka Ikwukeme |
Complaints:
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-00049312-002 | 23/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00049312-004 | 23/03/2022 |
Date of Adjudication Hearing: 21/12/2022
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
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:
This matter was heard 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.
The Complainant filed a complaint to the Workplace Relations Commission under the Payment of Wages Act 1991 and Organisation of Working Time Act 1997 which was received on 23 March 2022.
At the hearing the Complainant represented himself and gave his evidence on affirmation. Mr Emeka Ikwukeme swore an oath and gave evidence on behalf of the Respondent as the Company Owner. Mr Ikukeme confirmed the correct name of the Respondent, and the Employer was Jayden and Preston Limited trading as Parcel King.
The Complainant filed documentation which he relied on in his evidence in advance of the hearing with the Respondent filing documentation post hearing. Documentation was also received from the Respondent and put in evidence. Both parties availed of the opportunity to cross examine each other. |
Summary of Complainant’s Case:
CA-00049312-002 – Payment of Wages (Overtime) It was the Complainant’s evidence that he worked overtime and kept his own record which was presented in evidence. The Complainant further presented an email from 1 February 2022 in evidence from the Respondent stating, “Please give me the overtime and it will be paid with holiday pay this week.” To date he has not received the overtime. CA-00049312-004 - Organisation of Working Time (Annual Leave) It was the Complainant’s evidence that he took 4 days annual leave in 2021 and no annual leave in 2022. He worked full time and earned €480 per week. It is his claim that he was not paid for his unused annual leave at the time he left his employment in March 2022. An email thread of 21 December 2021 between the parties was produced which the Complainant relied upon as evidence that he had 6 days annual leave remaining in 2021 and that would be paid by the Respondent. |
Summary of Respondent’s Case:
CA-00049312-002 – Payment of Wages (Overtime) Mr Ikukeme gave evidence that the Respondent was a contractor for a third-party company. It was his evidence that the third-party contractor failed to pay overtime and therefore, he was not in a position to pay the Complainant for the overtime. There was a question raised around the time it took the Complainant to complete his tasks but upon inquiry Mr Ikukeme confirmed it was not raised with the Complainant during the course of his employment. |
CA-00049312-004 - Organisation of Working Time (Annual Leave) Mr Ikukeme gave evidence that the 20 days annual leave were pro rata on the time worked so the Complainant commenced work in May 2021 and finished in March 2022. It was his evidence that “the days he took off and had things to do he was always paid gross wages”. |
Findings and Conclusions:
CA-00049312-002 Mr Ikukeme confirmed his company, the Respondent, was the Complainant’s employer. The contract of employment was presented by the Complainant in evidence, but it is noted there is no clause providing for overtime. However, the overtime records were not disputed by the Respondent at the hearing. In the email correspondence between the parties from December 2021 – February 2022 the Respondent does agree to pay overtime. It is noted that the Complainant gave evidence there was no time recording system and this was not disputed by the Respondent. Consequently, I find the complaint is well founded. CA-00049312-004 Having carefully considered the email correspondence presented in evidence by the Complainant, I find that he is entitled to outstanding annual leave upon termination of his employment pursuant to Section 23 (1) of the Organisation of Working Time Act 1994. There was no evidence, documentary or orally, by the Respondent as to the reason why the annual leave had not been paid other than to say he was paid a gross weekly wage regardless. Therefore, I accept that the Complainant did not receive his 6 days annual leave in 2021 outstanding and find the 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-00049312-002 I award the sum of €396 for the 33 hours overtime at a rate of €12 per hour worked by the Complainant together with an additional sum of €396 as being reasonable compensation for failure to pay the overtime. For the avoidance of doubt I am awarding the Complainant the sum of €792 pursuant to Section 6 of the Payment of Wages Act 1991. CA-00049312-004 I award the sum of €1,440 equal to 3 weeks wages as being just and equitable compensation having regard to all the circumstances of this case pursuant to Section 27 (3) of the Act. |
Dated: 11th January 2023
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Payment of Wages – Overtime- Organisation of Working Time Act – Annual Leave |