Complainant

Respondent

Parties

Eddie  Claffey

Thrace Synthetic Packaging Limited

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-00051440-001

24/06/2022

This complaint related to a dispute regarding outstanding wages and the non-payment of notice on the termination of the Complainant's contract with the Respondent.

The Complainant commenced working for the Respondent on 30 November 2020.

He was provided a contract of employment which he had issues with.

The reference to remuneration in the contract set out "your pay will be based on the agreed driver pay schedule comprising of basic and driving hours bonus rate. Please see attached payment schedule for the full details and allowances".

On 1 July 2021 he was told that he was transferring to a new company. This company was not connected with the Respondent, but it was a transport company that provided as service to the Respondent in the past.

The Complainant moved to this new company and was working with the company at the date of the hearing.

The Complainant's case was that at his interview he was told that drivers with the Respondent earned between €40,000 and €45,000 gross per annum. When he enquired about the hours of work, he was told that the start time was 8 AM and the finish time between 4 PM and 5 PM. He was told that occasionally the drivers ended their work at 7 PM or later.

The Complainant kept a log of his working hours for the duration of his employment with the Respondent.

The Complainant was not provided with the Schedule referred to in his employment contract. He queried this with management.

Within 5 to 6 weeks of commencing employment, he calculated that he was not paid his correct wages. He raised this with the Managing Director.  He had calculated based on his wages to date he would earn less than €40,000 per year. Also, he was working a lot more hours than he had been told at the interview.

It was agreed with the Respondent that the Complainant would thereafter be paid subsistence every week to increase his take-home pay.  He was paid subsistence for three weeks, namely pay period 24, 25 and 26. The amount of subsistence paid varied each week.  The Complainant calculated that following the payment of subsistence, his average gross wage increased to €43,000 per year.

As regards his transferred to the transport company, the Complainant said there was no mention of transfer of undertakings to him or that his service was protected following the transfer. He received nothing in writing from the Respondent or his new employer in this regard. The Complainant submitted that he was entitled to four weeks’ notice of the termination of his employment under his contract of employment with the Respondent.

The Complainant explained that he wasted a lot of time trying to seek legal advice as to his entitlements. The Respondent did not reply to correspondence from his solicitor. He spoke with three different firms of solicitors before he lodged his complaint himself. On lodging his complaint, he was aware that he was outside the six months’ time limit and applied for an extension of time.

The Respondent’s case is that the wages payable to a driver was based on a SIPTU negotiated schedule which was attached to the Complainant's contract of employment.

The Managing Director did agree that he said to the Complainant that the average salary for a driver would be between €40,000 and €45,000 per annum. The Respondent never paid subsistence to any driver in the past. The drivers had a degree of flexibility, and they could start earlier depending on their preference.

It was agreed that the Complainant was hired by the Respondent as a driver. At that time the Respondent leased trucks and employed its own drivers.

The Managing Director explained that when the Complainant approached him with regard to his salary, it was at a time when there were countrywide problems in driver availability. There was a large shortage of drivers in the market. He explained that the Complainant would have earned an annual salary of €39,770 based on his salary payments from when he started employment in November on the SIPTU negotiated schedule. He was satisfied that this met the agreement that the Respondent had with the Complainant. However, he wanted to keep the Complainant happy and re-negotiated the terms of his contract and the pay schedule in what he described as an “inventive way”. He said that the Respondent had never paid subsistence apart from in this case.  The Managing Director said that the other driver with the Respondent earned his wages based upon the SIPTU agreed schedule. His case was that the Complainant was not due outstanding wages. He was paid his correct wage from the start of his employment until then re-negotiation of his salary.

As regards the notice payment, the Managing Director explained that in late 2020, the Respondent had a difficulty having its truck serviced and maintained. It was not possible to purchase or lease new trucks at the time. It was approached by a transport company that it had used previously. It was agreed that this company would take over the transport aspect of the Respondents business as an outside contractor.

The Managing Director submitted that the drivers were fully aware at the time of what was taking place with the new company. He spoke with the Complainant and told him what was going on. The Complainant was given the option to transfer to the new transport company or "have a separate conversation with the Managing Director". The Complainant decided to transfer to the new transport company.  The Managing Director agreed that the Respondent provided nothing in writing to the Complainant at the time explaining what was happening in terms of his employment and the transfer to a new employer.

After the hearing, I was provided with the letter from the transport company that over the Complainant's employment. It set out that the writer had met with the Managing Director and the Complainant. The letter did not refer to the Transfer of Undertakings or confirm that the Complainant's service with the Respondent transferred to the new transport company.

My power under the Payment of Wages Act is to make an order in relation to complaints preceding the date on which the complaint was made.  The complaint was made on the 24/06/2022.

The Payment of Wages Act prohibits the making of deductions from an employee’s wages unless required or authorised by the Act or the employee has consented to the deduction.

It is for the Complainant to show in the first instance that wages were properly payable to him and not paid by the Respondent.

The tests applied by the Labour Court for extensions of time for claims of this nature have been well established. In the case of Cementation Skanska v Carroll, DWT0338, the Labour Court articulated the test by stating:

“It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case”.

Based on the evidence of the Complainant to the extent he went to obtain legal advice and engage with the Respondent, I accept his application to extend time to cover a period of 12 months before the 24 June 2022.

In relation to the two complaints made, I accept the Respondents position in relation to the wages payable to the Complainant. I accept that he was paid his wages properly payable up and until that aspect of his contract of employment was re-negotiated and his wages increased from week 24.

In relation to his claim for a notice payment of one week, I do not accept that the Complainant's employment transferred to the new transport company under the Transfer of Undertaking Regulations. I find that his employment was terminated on the 1 July 2021 and that he did not receive his notice payment set out in his contract of employment of one months’ notice in writing.

I have calculated the Complainant's weekly remuneration. The average payment he received over the 31 weeks of employment. This amounts to €764.89. Four weeks amount to €3,059.56.

This complaint is well founded. I award the Complainant €3,059.56 outstanding wages in lieu of notice on termination of employment as set out in the contract of employment and defined in section 1 in the Payment of Wages Act 1991.

Wages definition including any sum payable in lieu of notice