Complainant

Respondent

Parties

Rafal  Zimnica

Apcoa Parking Ireland Ltd

Representatives

 Self

HR Manager

Act

Complaint/Dispute 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-00043694-001

20/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00043694-002

20/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00043694-003

20/04/2021

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

CA-00043694-004

20/04/2021

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

CA-00043694-005

20/04/2021

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

CA-00043694-006

20/04/2021

The Complainant commenced employment on 1st February 2016 as an Enforcement Officer. Under the Transfer of Undertakings Regulations, the employment transferred to the Respondent on 1st October 2019.

Employment ended on 7th April 2021.

This complaint was received by the Workplace Relations Commission on 20th April 2021.

The complaint consists of six complaints, these are as follows:

CA – 00043694 – 001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

CA – 00043694 – 002 – complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

CA – 00043694 – 003 – complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

CA – 00043694 – 004 – complaint submitted under section 27 of the Organisation of Working Time Act 1997.

CA – 00043694 – 005 –complaint submitted under section 6 of the Payment of Wages Act, 1991

CA – 00043694 – 006 –complaint submitted under section 6 of the Payment of Wages Act, 1991

The Complainant has made six complaints.

CA – 00043694 – 001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant states that he did not receive a statement of the particulars of employment.

CA – 00043694 – 002 – complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

The Complainant contends that his current / new employer (Transferee) did not ensure that his terms and conditions transferred from his previous employer (Transferor).

CA – 00043694 – 003 - complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

The Complainant contends that his current / new employer (Transferee) did not observe the terms and conditions transferred from his previous employer.

CA – 00043694 – 004 – complaint submitted under section 27 of the Organisation of Working Time Act 1997.

The complainant contends that he was not compensated for working on Sundays. The Complainant stated that he worked two Sundays per month and received an extra €20 per month. The Complainant contends that he has a contractual right to be paid an additional €20 for each Sunday worked.

CA – 00043694 – 005 –complaint submitted under section 6 of the Payment of Wages Act, 1991

The Complainant alleges that the employer made an illegal deduction from his wages.

As per complaint form the Complainant contends that he was left between €200 and €1200 short in his wages.

CA – 00043694 – 006 –complaint submitted under section 6 of the Payment of Wages Act, 1991

The Complainant alleges that his employer has not paid him or has paid him less than the amount due to him.

On 24th 2021 March the Complainant submitted his breakdown of what he feels he should have been paid. His calculations show a shortfall as follows:

January – Complainant’s calculation €586 actually paid €405

February – Complainant’s calculation €740 actually paid €633

March – Complainant’s calculation €639 actually paid €566

If these figures are correct the total shortfall for three months is €361.00

The Complainant has also raised questions in relation to his annual leave pay, illness, previous unfair deductions, and wrongly calculated wages.

The representative for the Respondent (HR Manager) presented a six-page submission both prior to and at the hearing of the complaint.

As stated, the Respondent representative provided a submission for the hearing. The first four pages of this submission addressed the legal principles and case law in TUPE legislation. Both parties accepted that a transfer did take place, this was not one of the complaints submitted by the Complainant.

The next section of the submission dealt with mitigation of loss that one would normally find in a complaint of unfair dismissal. There was no complaint submitted under the Unfair Dismissals Act.

This submission made it difficult for the HR Manager present to present her case.

CA – 00043694 – 001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The Complainant did receive a contract of employment dated 3rd February 2016 which he signed the same day. This contract was also signed by the Head of HR on the same date. This 17-page contract would be carried over to the new employer when the company ownership changed hands. This complaint as presented is not well found.

CA – 00043694 – 002 – complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

The Respondent produced a copy of the Complainant’s initial contract of employment. This is quite a comprehensive document and contains all terms and conditions of employment.

The Complainant’s employment transferred to the Respondent on 1st October 2019. This complaint was received by the Workplace Relations Commission on 20th April 2021.

Regulation 10(6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 reads as follows:

10(6) A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period ,such further period , not exceeding 6 moths from the expiration of the first mentioned period, as the rights commissioner considers reasonable.

In the instant case the complainant has provided no specific information to support this allegation. I have no alternative but to find this complaint is not well found.

CA – 00043694 – 003 - complaint submitted under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No131of 2003).

The Complainant contends that his current / new employer (Transferee) did not observe the terms and conditions transferred from his previous employer.

The complainant has provided no specific information to support this allegation. I have no alternative but to find this complaint is not well found.

CA – 00043694 – 004 – complaint submitted under section 27 of the Organisation of Working Time Act 1997.

The complainant contends that he was not compensated for working on Sundays. The Complainant stated that he worked two Sundays per month and received an extra €20 per month. The Complainant contends that he has a contractual right to be paid an additional €20 for each Sunday worked.

Section 27 (4) of the Act states:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The cognisable period in this complaint therefore is the 6 months period ending on 21st April 2021 (21st October 2020 to 20th April 2021). The only Sundays that can be considered are those between these dates.

As per the Respondent’s submission all outstanding monies were paid to the Complainant at the end of November 2021.

This complaint is not well found.

CA – 00043694 – 005 –complaint submitted under section 6 of the Payment of Wages Act, 1991

The Complainant alleges that the employer made an illegal deduction from his wages.

As per complaint form the Complainant contends that he was left between €200 and €1200 short in his wages.

I am unable to consider this complaint, the particulars of the complaint, or lack of them, make it impossible to consider.

This complaint is not well founded.

CA – 00043694 – 006 –complaint submitted under section 6 of the Payment of Wages Act, 1991

The Complainant alleges that his employer has not paid him or has paid him less than the amount due to him.

On 24th 2021 March the Complainant submitted his breakdown of what he feels he should have been paid. His calculations show a shortfall as follows:

January – Complainant’s calculation €586 actually paid €405

February – Complainant’s calculation €740 actually paid €633

March – Complainant’s calculation €639 actually paid €566

If these figures are correct the total shortfall for three months is €361.00

The Complainant has also raised questions in relation to his annual leave pay, illness, previous unfair deductions, and wrongly calculated wages.

I am unable to say whether or not the calculations of pay for the months of January, February and March are correct. I would ask the Respondent to double check these calculations and provide some explanation to the Complainant.

In relation to the pay for periods of annual leave. I have studied the wage slips provided by the Complainant and it appears that annual leave is paid at the basic hourly rate. This is not the method of calculation.

The Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 (S.I. No 475 / 1997) explains the calculation for pay during periods of annual leave.

Sections 3 (2) and 3 (3) of this enactment reads as follows:

(2) If the employee concerned’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purpose of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime)  that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be , the cesser of employment.

(3) If the employee concerned’s pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation the normal weekly rate of his or her pay, for the purpose of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over –

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs

Or

(b) if no time was worked by the employee during the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

As already stated, the cognisable period is 21st October 2020 to 20th April 2021. I now order the Respondent to re-calculate the annual leave pay for the Complainant during this 6-month period using the formula outlined above. This complaint is well founded. Any shortfall in payments made to the Complainant should be paid to him within 42 days from the date of this decision.

Generally, the Respondent should have sent a member of the wages department to the hearing.

Complaints numbered CA – 00043964 – 001/002/003/004 and 005 are not well founded.

Complaint number CA – 00043964 – 006 is well founded and I order the Respondent to re-calculate pay for annual leave for 6 months using the correct method and pay any shortfall to the Respondent.