Complainant

Respondent

Anonymised Parties

An Apprentice

A Manufacturer

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Industrial Relations (Amendment) Act, 2015.

CA-00054335-001

03/01/2023

The complainant commenced employment on 3 August 2021 until his dismissal on 3 October 2022. He contends that he is owed appropriately €1,315 arising from being placed on €9.18 per hour for a period of 5 months instead of the national minimum hourly rate applying at the time. The respondent acknowledged that the complainant was placed on the incorrect rate of pay for several months and calculated a shortfall of €929.30 in wages for the relevant period. It is the respondent’s case that the complainant was thereafter paid an hourly rate which was more than the national minimum wage and the apprenticeship rate applying to the complainant and so in effect he was overpaid wages by the amount of €11,034.28 for the remainder of his employment.

The complainant outlined that he commenced employment on 3 August 2021 at the age of 21. For the first five months of his employment he was placed on the ‘aged 19’ national hourly minimum wage applying at the time of €9.18. Some months later the complainant realised that he should have been paid the ‘experienced adult worker’ rate. The complainant stated that he brought this to the attention of either the Managing Director or the Production Manager, but he cannot recall whom. In December 2021 the complainant signed a contract of employment and was placed on an hourly wage of €10.50. The complainant outlined that this addressed his concerns regarding his hourly rate; however, he now wishes to recover the differential between the rate he was on and the rate he should have been on for the period August 2021 to December 2021. The complainant was unable to give a reason for the delay in presenting his complaint to the WRC.

The respondent stated that he has no recollection of the complainant asking him to adjust his hourly rate from €9.18 to €10.20 per hour.  In December 2021 the complainant was placed on an hourly rate of €10.50 which was more than the national minimum wage of €10.20 applying at the time.

With the agreement of the complainant the respondent sought approval for the complainant to be placed on an Apprenticeship for Metal Fabrication. The respondent forewarned the complainant that if he was accepted onto an apprenticeship, his hourly rate of pay would reduce significantly. A Contract of Apprenticeship was issued to the complainant, and he commenced the apprenticeship on 20 December 2021. However, the respondent was concerned that the cost of living had increased substantially, and the respondent decided to continue to pay the complainant €10.50 per hour rather than placing him on the significantly lower apprenticeship rate. The respondent continued to pay the complainant the higher hourly rate of €10.50 per hour until his employment ended on 3 October 2022.

The respondent opened a wages report which had been sent to the complainant on 26 October 2022. This report was also submitted to the WRC in advance of the hearing and had been copied by the WRC to the complainant in advance of the hearing. This report showed that the complainant was under paid by €929.30 between the period of 3 August 2021 to 17 December 2021. The report also showed that had the complainant received the apprenticeship rate applying at the time, he would have earned a total amount of €8,513.82 for the period January 2022 until his employment ended in October 2022. As the respondent paid the complainant €10.50 per hour, which was significantly more than the apprenticeship rate, the complainant was in effect overpaid to the sum of €11,034.28. The respondent felt that this complaint was only being presented to the WRC now, over a year later, because the respondent had terminated the complainant’s employment. The respondent submitted that it was satisfied that it had paid the complainant more than it was legally obliged to over the course of the complainant’s employment.

The respondent told the hearing that it had no difficulty paying the complainant any wages due to him should the Adjudication Officer decide that the sum of €929.30 should be paid to the complainant. The respondent also expressed the desire to have the matter resolved. The respondent stated that it had no difficulty with the WRC amending the complaint form to include a complaint under s 13 of the Industrial Relations Act 1969.

This complaint was presented to the WRC under s 23 of the Industrial Relations (Amendment) Act 2015. The complaint selected the option on the complaint form: ‘I do not receive the minimum rate(s) of pay set out in an SEO’. The SEO selected was the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 S.I. No. 59 of 2018. That SEO applies to qualified plumbers and registered apprentice plumbers (craftsperson) and qualified pipefitters and registered pipefitters (craftsperson) working in the sector. It is common case that the complainant is not within the category of employee covered under this SEO or under any other SEO. Therefore, the complainant lacks locus standi to pursue a claim under s 23 of the Industrial Relations (Amendment) Act 2015.

CA-00054335-001

I decide that the complainant lacks locus standi to pursue a claim under s 23 of the Industrial Relations (Amendment) Act 2015. I dismiss the complaint as misconceived.

SEO. Unpaid wages.