Complainant

Respondent

Parties

Daniel  Deighan

Excel Recruitment

Representatives

  Self-Represented

Barbara Conlon Employment Law and HR Consultant

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-00053315-001

17/10/2022

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

CA-00053315-002

17/10/2022

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

CA-00053315-003

17/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00053774-001

19/11/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054933-001

08/02/2023

The Complainant submitted three complaint forms to the WRC as follows:

1.      17/10/2022 Complaint Form CA-00053315 comprising three complaints pursuant to section 6 of the Payment of Wages Act, 1991.

2.      19/11/2022 Complaint Form CA-00053774 complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001

3.      08/02/2023 Complaint Form CA-00054933 complaint pursuant to section 8 of the Unfair Dismissals Act, 1977.

The Complainant is at all material times seeking work as a chef in the hotel and catering industry.   The Respondent is a recruitment agency with a focus on a number of sectors including but not limited to hospitality and healthcare.  The Complainant was employed by the Respondent as an agency worker in the hotel and catering section in Cork from 11/11/2019 until he resigned his employment on 24/01/2023, with such resignation taking effect on 31/01/2023. 

The Complainant did not provide a factual or legal submission in advance of hearing.  The Complainant relied on his WRC complaint forms copies of which were provided to him at the commencement of hearing.  The Respondent filed a written submission on Wednesday 26 April 2023.  The submission contained a number of appendices including among which were copies of timesheets; copies of pay slips; and copies of emails and text messages exchanged between the parties. 

I have carefully reviewed all the Complainant’s WRC Complaint Forms from which I have extrapolated the core issues and I summarise hereunder.  

CA-00053315-001 section 6 of the Payment of Wages Act, 1991

The Complaint alleges an unlawful deduction of €160.00 on 28/04/2022.  The Complainant alerted the Respondent to the deduction.  The Respondent advised there had been previously an overpayment.  The   Complainant disputes this and he submits all his payslips and time sheets show no such overpayment.   The Complainant submits all payments made to him were exactly for the hours worked by him.

CA-00053315-002 /003 section 6 of the Payment of Wages Act, 1991

The Complainant alleges an unlawful deduction of €205.00 on 25/08/2022 in relation to underpayment for Sunday work.  The Complainant alleges a further unlawful deduction of €100.28 also on 25/08/2002 in relation to an underpayment for Sunday work. 

CA-00053774-001 section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001 provides under the Complaint Specific Details as follows “I am a part-time employee and have, in respect of my conditions of employment, been treated less favourably than a comparable full-time employee”.  This complaint can be broadly categorised as falling under two headings namely holiday pay and working conditions summarised as follows. 

The Complainant had accumulated holiday pay and he is aggrieved because the holiday pay was paid to him in November 2022.  He did not wish to receive these monies until December 2022.   

The Complainant outlined a number of complaints about working conditions with which he was unhappy whilst working in a nursing home in Cork.  He submits there was very little trained kitchen staff on site, and he alleges staff with no food safety or training were placed in the kitchen.  The Complainant submits he had difficulty getting the Respondent to complete his UP80 form for him. 

CA-00054933-001 section 8 of the Unfair Dismissals Act, 1977

The Complainant pursuant to section 8 of the Unfair Dismissals Act, 1977 provides under the specific complaint “I had to leave my job due to the conduct of my employer or others at work (Constructive Dismissal), I have at least 12 months service”.  There is no further detail or statement provided on the WRC Complaint Form. 

CA-00053315-001 section 6 of the Payment of Wages Act, 1991

The Respondent submits the deduction of €160.00 on 28/04/2002 was in relation to an overpayment of 8 hours paid to the Complainant on 14/04/2022.  Payslips were filed by the Respondent in the appendices accompanying their submission which show the overpayment and the subsequent deduction.  The Complainant was overpaid by 8 hours as indicated on his payslip dated 14/04/2022 for week 15.  The Complainant’s payslip dated 28/04/2022 for week 17 shows full payment for the hours worked pertaining to that payslip together with a deduction for the overpayment made on week 15.

CA-00053315-002/003 section 6 of the Payment of Wages Act, 1991

CA-00053315-002/003are considered in tandem as the Respondent concedes there is a net figure owing to the Respondent arising out of a situation where an underpayment was rectified by a one-off payment to the Complainant but during the course of investigating this matter it came to light there is a shortfall that requires a further payment to the Complainant.  From 08/08/2022 to 16/08/2022 the Complainant was underpaid by €4 euro per hour.  The initial underpayment to the Complainant was acknowledged by email from the Respondent 08/02/2023 and was settled by way of a one-off payment of €260.00 on 09/02/2023.  However, this one-off payment did not fully rectify the underpayment and the Respondent concedes there is a further amount of €76.40 due to the Complainant as a result of the shortfall that came to light in investigating this matter for the Respondent’s submission in respect of miscalculation in Sunday pay and bank holiday pay. 

The Respondent fully acknowledges the payroll errors that occurred and attributes these to a poor response from the external payroll provider when issues were raised.  The Respondent now manages payroll in-house with a dedicated payroll person and regrets delays and miscalculations in the past and offered profuse apologies to the Complainant in respect of same during hearing. 

CA-00053774-001 section 16 of the Protection of Employees (Part-Time Work) Act, 2001

Holiday Pay: 

The Respondent submits in agency work it is normal practice for unused holidays to be paid out at the end of an assignment or, if the employee is still on assignment, to be paid towards the end of the year.  The Complainant had not worked for the Respondent since 05/09/2022.  The Respondent submits they were not in receipt of the medical certificates posted in a drop box in the Cork office as stated by the Complainant.  The Respondent submits there was no knowledge of the status of the Complainant until such time as he provided a fitness to return to work medical certificate on 28/11/2022.  The Respondent submits had they been in receipt of the medical certificates the Complainant would not have been offered payment of his holiday hours but by the time the Complainant requested not to be paid for the holiday hours it was too late as the return had already been submitted to the external payroll provider.  The Complainant was paid the full outstanding annual leave entitlement of 58 hours.

Working Conditions:

The Respondent submits that when they were advised by the Complainant of his unhappiness with the working conditions in the nursing home they engaged with the Hirer on this matter.  The Hirer advised the Respondent a meeting took place with the Complainant to discuss his issues.  Shortly after this the Complainant declined to be placed with the Hirer again and he withdrew his application for a permanent role for which he had applied with the Hirer. 

The Respondent further submits it is not the correct respondent in these matters pertaining to working conditions.  The Respondent submits had the alleged incidents occurred as described by the Complainant the correct respondent would be the Hirer. 

The Respondent submits the Complainant was emailed his completed UP80 form on 15/09/2022 as confirmed by the Complainant in his WRC Complaint Form. 

CA-00054933-001 section 8 of the Unfair Dismissals Act, 1977

The Respondent submits the Complainant was not dismissed.  The Complainant submitted a letter of resignation on 24/01/2023 in which he states his resignation is due to the unlawful deduction from his wages, the unfair treatment of his working rights and the way in which the Respondent has handled the matter.  The Complainant, in his letter of resignation, thanked the Respondent for the opportunity to work for them and wished the Respondent and the company continued success and all the best for the future.

The Respondent submits all matters the Complainant formalised in a grievance to the Respondent by email on 09/09/2022 were addressed and rectified apart from one legacy issue arising from the payroll errors the amount of which was conceded by the Respondent during hearing and to which the Complainant accepted as being the correct figure. 

CA-00053315-001 section 6 of the Payment of Wages Act, 1991

The Relevant Law:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

However, section 5(5)(i) provides for a deduction from pay if that deduction is the reimbursement to the employer in respect of an overpayment of wages as follows:

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or [emphasis added]

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment…[emphasis added]

The alleged unlawful deduction was clarified and explained by the Respondent.  The Respondent’s submission provided comprehensive detail on this matter and when the Complainant read the submission and viewed the payslips, he accepted there was no unlawful deduction. 

I am satisfied there was no unlawful deduction and no breach of the Act. I find that no payment “properly payable” to the Complainant was unlawfully deducted from his wages.   This element of the Complainant’s complaint under the Payment of Wages Act, 1991 was not withdrawn at hearing albeit the Complainant now understands and accepts the overpayment, the subsequent reimbursement, and the resultant non-contravention of his rights in relation to this matter.  In circumstances whereby it is common case that all wages deemed “properly payable” within the meaning of the Act have been paid, I find this element of the complaint to be not well-founded. 

CA-00053315-002/003 section 6 of the Payment of Wages Act, 1991

I have considered these two complaints in tandem as they are interlinked.  The Respondent conceded at hearing there is an existing shortfall here and the Complainant is owed the sum of €76.40.  Accordingly, I find these interlinked complaints to be well-founded. 

CA-00053774-001 section 16 of the Protection of Employees (Part-Time Work) Act, 2001

The Complainant submitted this complaint detailing his dissatisfaction that he received his holiday pay in November rather than in December as he would have preferred together with his dissatisfaction with working conditions under the Protection of Employees (Part-Time Work) Act, 2001.  I am required to adjudicate on this complaint under the provisions of the aforesaid legislation. 

The Relevant Law:

Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 provides for the presentation of a complaint that the employer has contravened sections 9 or 15 of the Act.  Section 15 of the Act deals with penalisation. 

Section 9 of the Act provides that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparative full-time employee and provides as follows:

“9 – (1) subject to subsection (2) and (4) and section 11 (2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.”

Even if the Complainant were a part-time employee, in order for him to succeed in his claim he must first prove he has been treated in a less favourable manner than a comparable full-time employee.  The Complainant was unable to identify a comparable full-time employee to whom he could compare himself as being treated less favourably.  The Complainant made no such case. 

For completeness, the Complainant was not a part-time employee at the material time.  The Complainant was an agency worker employed by the Respondent on what the Respondent describes as a When and If contract.  When and If the Respondent had a booking for a chef, the Complainant would be contacted to see if he was available. 

In the context of the applicability of the law under which this complaint is raised to the facts of the within case, I find this complaint is misconceived under the Act. 

CA-00054933-001 section 8 of the Unfair Dismissals Act, 1977

The Relevant Law:

Section 13 of the Unfair Dismissals (Amendment) Act 1993 specifically provides that for the purposes of the Unfair Dismissal legislation, the Hirer will be deemed the agency worker’s employer and is the correct respondent an any claim for Unfair Dismissal. 

Section 13 provides as follows:

13.—Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement—

(a) the individual shall be deemed to be an employee employed by the third person under a contract of employment, [emphasis added]

(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and

(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.

I find that for the purpose of this claim of Unfair Dismissal the Respondent has been incorrectly named as Respondent.  The Respondent is not the Complainant’s employer pursuant to section 13.  Accordingly, I find this complaint to be not well-founded.

Agency worker; unfair dismissal; incorrect respondent named; working conditions; no comparator;