Complainant

Respondent

Parties

Iustin  Lupu

Bidvest Noonan (Roi) Limited

Representatives

  self

Ruth Heenan IBEC

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-00047232-002

18/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047232-003

18/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047232-004

18/11/2021

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

CA-00047232-005

18/11/2021

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

CA-00047232-006

18/11/2021

At the first day of hearing the Complainant who is a lay litigant was not prepared for the hearing. He stated that his paperwork was with a solicitor who was no longer on record for him. To ensure that he was ready to present his case the Adjudicator gave time to him to retrieve his records and notes relevant to conducting his case. At the first day of hearing several complaints were withdrawn by the Complainant stating that he was unclear why he had ticked some specific statutory complaints on the Commission’s standard complaint form. On reflection those complaints were not what he thought he was progressing for hearing.

The Complainant has stated that he worked more hours than he was paid for as detailed on his payslips which shows more hours worked than  he was paid for.

The Complainant also stated that he did not receive information as required by law on commencing employment about the terms and conditions of his employment on time.

The employee stated that when his role changed to another site; his new terms were not formally notified to him.

The Complainant stated that he was required to work more than the maximum number of hours allowed under law and often he exceed 48 hours per week. At the second day of hearing this complaint was withdrawn.

The Complainant stated that he didn’t receive rest breaks.

CA- 00047232-002 The Complainant alleged he was underpaid by €7,000. Upon receiving an email from the Complainant about this matter, the Complainant’s hours were reviewed and the error in payment was rectified. This payment was made to the Complainant on pay period 41 (payslip between 24.09.21 to 07.10.21.

CA- 00047232-003 The Complainant alleged he did not receive a contract detailing  his terms and conditions of employment. The Respondent refuted this. The internal system “Agresso” automatically sends contracts once they are on the system. The employee received his contract – as evidenced by the letter amending his contract when the employee moved to a new site.

 At the prior hearing, the Respondent was asked to show further evidence of the contract being sent to the Complainant. There is no backup evidence trail for the email being sent, as it is automated by the system. The Respondent submits that this would be true of all contracts issued and maintained their position that the contract would have issued.

CA- 00047232-004 The Complainant alleged he was not notified of changes to his terms and conditions. The employee’s role changed when he accepted work at a Garda site redacted in June 2021. The Complainant requested this work having seen it advertised. The letter detailing the reassignment and opened at the hearing confirmed to the employee the changes to his Terms and Conditions of employment (namely pay).

CA- 00047232-005 The Complainant alleged he is required to work more than the maximum permitted hours. The Respondent stated that the Complainant’s submission included reference to shifts worked outside of the reference period for this claim, which cannot be considered as evidence today. The Respondent has compiled an excel sheet to show the hours worked for the reference period. These hours average at 48.857 hours. It is important to note due to financial difficulties arising from personal circumstances the employee asked for more hours. However, there were marginally more hours allocated than the maximum allowed under law.

CA- 00047232-006 The Complainant claimed he did not receive his rest breaks. All employees received their breaks in line with the Organisation of Working Time Act. There would be no reason for the Complainant not to take his set breaks in the manner that all his colleagues within the Team did, and the Respondent was never informed of the employee not receiving his breaks. The Complainant’s contract states at section:

 “6. Hours of Work, Rest Periods & Breaks: Your hours of work are outlined in your Offer Letter 2 and subject to change and rostered dependent on site requirements. Rosters are subject to flexibility relating to operational and business needs and will be available to you in advance. Shifts can be between up to 12 hours in duration, worked within Monday to Sunday. Your rest breaks are provided in line with the Organisation of Working Time Act. Should there be an occasion where you do not receive your designated break, please contact your Line Manager immediately. This notification must be made within 24 hours of an employee not availing of their entitlement.”

CA- 00047232-002 Payment of Wages Act 1991:

At the hearing the payroll administrator brought both the Complainant and Adjudicator through a detailed analysis of the hours worked and paid. An impression could be given that the Complainant had worked more actual hours than he had. This arose based on the classification of overtime hours as follows: An hour attracting overtime rates at time and half is shown on the payslip as 1.5 hours and an hour attracting a premium of double time would appear as 2 hours. On the sworn evidence of the payroll administrator, I am satisfied that any monies owing was paid and there is no outstanding payment to be made. As no monies properly owed have been withheld or not paid, I determine the complaint is not well founded.

CA- 00047232-003Terms of Employment (Information) Act, 1994:

It is alleged that Respondent failed to provide a written statement of terms within 5 days of commencing employment. On the balance of probabilities, it does appear that an administrative error occurred concerning an email address and that the contract may not have been received. The fact is the employer does send out contracts to fully comply with the requirements of the Act. In these circumstances I determine that the omission to be a technical breach and while well founded having regard to the systems in place to ensure compliance and that a human error will at times give rise to such omissions, I make no award of compensation.

I determine that the complaint is a technical breach and while well founded based on the circumstances of this case where the Employer through their automated systems achieve a very high level of statistical compliance without any errors; I decline to make any award of compensation as to do so would be unjust and unfair. The Act provides for this at section 7 where it states the Adjudication Officer may order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances.

CA- 00047232-004Terms of Employment (Information) Act, 1994:

The evidence opened at the hearing supports the position that the employee was informed of a change in his terms and conditions. The employer opened a letter that is proof of the changes that occurred when he transferred to a new site.  I determine that the complaint is not well founded.

CA-0004723-005 Organisation of Working Time Act, 1997:

At the hearing this claim was withdrawn by the Complainant.

CA-0004723-006 Organisation of Working Time Act, 1997:

I prefer the evidence of the employer relating to this complaint which was that no other employee on the same team complained about not having breaks, the policy about taking breaks is very clear and was communicated to the Complainant and there was ample opportunity to take breaks as the employee was on call. There is no reason why the employee should not have taken breaks particularly when he was on call and had ample time to take a break. I determine that the complaint is not well founded.

CA- 00047232-002 Payment of Wages Act 1991 states:

Section 5 (6) of the Payment of Wages Act 1991 states:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding

I determine that the complaint is not well founded as no unlawful deduction remains to be paid and an error in underpayment had been rectified prior to the hearing.

CA- 00047232-003Terms of Employment (Information) Act, 1994:

It is alleged that Respondent failed to provide a written statement of terms within 5 days of commencing employment. On the balance of probabilities, it does appear that an administrative error occurred concerning an email address and that the contract may not have been received. The fact is the employer does send out contracts to fully comply with the requirements of the Act. In these circumstances I determine that omission to be a technical breach and while well founded having regard to the systems in place to ensure compliance and that a human error will at times give rise to such omissions, I make no award of compensation.

I determine that the complaint is a technical breach and while well founded based on the circumstances of this case where the Employer through their automated systems achieve a very high level of statistical compliance without any  errors to I decline to make any award of compensation as to do so would be unjust and unfair. The Act provides for this at section 7 where it states the Adjudication Officer may order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances.

Any delay that arose was caused by human error that occurs infrequently and to punish the employer against a backdrop of compliance would be unfair. The plain reading of this provision clearly provides for a situation where a complaint while technically well founded; on the merits it is not appropriate to award compensation. In this case I determine that no award of compensation is appropriate.

CA- 00047232-004Terms of Employment (Information) Act, 1994:

The evidence opened at the hearing supports the position that the employee was informed of a change in his terms and conditions. I determine that the complaint is not well founded.

CA-0004723-006 Organisation of Working Time Act, 1997:

I prefer the evidence of the employer which was compelling and on the balance of probabilities did show the employee should have been able to take scheduled breaks. There is no reason why the employee would not have taken breaks particularly when he was on call and had ample time to take a break. I determine that the complaint is not well founded.

Excess Hours-Breaks-No Contract