Complainant

Respondent

Parties

Klemens  Meyer

MSCS Specialist Construction Services

Representatives

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-00052777-001

12/09/2022

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

CA-00052777-002

12/09/2022

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

CA-00052777-003

12/09/2022

The complaints referred to the Workplace Relations Commission concern non-payment of wages in March 2022, a deduction from wages in March 2022 for goods supplied to the complainant and public holiday entitlements.   

The complainant commenced working with a general contractor in 2021.  His employment transferred from that general contractor to the respondent in January 2022.  The complainant was provided with a written contract in respect of his employment with the respondent.  The complainant submitted a copy of that contract, along with evidence of it having been provided to him by the respondent, and payslips from his employment with the respondent. 

The complainant said that he did not receive public holiday entitlement in respect of the public holidays on 17 and 18 March 2022.  The complainant did not work on 17 and 18 March 2022 and expected to receive the public holiday benefit in the following week’s pay as he was working a week in hand.  When he did not receive payment for the public holidays the following week, he told the respondent that he would not work for the respondent anymore unless the pay issues were sorted out.  The complainant was also not paid in respect of the days he worked from 21 to 24 March 2022, after he raised the matter of pay for the public holidays.  The complainant’s employment with the respondent ceased on 24 March 2022.  The complainant submitted that there were always issues with pay from the respondent.  The complainant resumed working with the general contractor after his employment with the respondent ceased.  The complainant was not paid for the days he worked for the respondent from 21 to 24 March 2022, inclusive. 

The complainant was provided with rain gear at his work site on 7 March 2022, the following week’s payslip showed a deduction in pay of €70 for the rain gear provided to him.

The complainant did not take annual leave during the period of his employment with the respondent and did not receive any payment for annual leave on the cessation of his employment on 24 March 2022.

There was no appearance by or on behalf of the respondent at the hearing.

There was no written statement, documentation or submission in respect of these complaints provided by or on behalf of the respondent to the Workplace Relations Commission or exchanged with the complainant.

The Commission notified the respondent of these complaints by way of correspondence dated 14 November 2022, which issued to the address provided by the complainant for the respondent on the complaint form.  I note that the said address was the address detailed for the respondent employer in the contract of employment that issued to the complainant.  The complaints notification correspondence was returned to the Commission by a landlord who advised the respondent was no longer a tenant at the address.   The Commission issued subsequent communications regarding the hearing arrangements for the complaints to the previous mentioned address and to an address registered for the respondent with the Companies Registration Office.   The concierge facilitating the remote hearing also made efforts to contact the respondent by email and telephone.

Accordingly, I am satisfied that notifications issued from the Commission to the respondent were in in order, that every effort was made to notify the respondent of the hearing arrangements and that it is appropriate for me to adjudicate on the complaints before me.

In deciding the complaints, I have had regard to the complaint form, the documentation submitted by the complainant and the uncontested oral evidence of the complainant at the hearing.

CA-00052777-001 (Payment of Wages 1991)

This complaint concerned non-payment of wages to the complainant in respect of days worked by the complainant from 21 to 24 March 2022 inclusive, and holiday pay not received.  The complainant did not take annual leave during his period of employment with the respondent, and he was not paid for annual leave accrued on cessation of his employment. 

I am satisfied that this complaint under the Payment of Wages Act 1991 (the “1991 Act”) was presented within the time limits set out in section 41(6) of the Workplace Relations Act 2015.   

I have considered the definition of “wages” for the purposes of the 1991 Act which includes:-

“in relation to an employee, … any sums payable to the employee by the employer in connection with his employment, including (a) … any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, …”

I am satisfied therefore that I have jurisdiction pursuant to the 1991 Act to adjudicate on the complaint before me regarding non-payment of wages for the period 21 to 24 March 2022 and the non-payment of holiday pay notwithstanding there being specific legislation (i.e. the Organisation of Working Time Act 1997) that provides for redress to employees who have not been paid correctly for annual leave or public holidays. 

The complainant submitted payslips and a copy of his contract of employment in support of his evidence regarding hours of work and pay. 

The complainant was a general operative to which the Sectoral Employment Order for the construction sector applied.  The Sectoral Employment Orders relevant to the complainant’s employment are contained in Statutory Instrument 234 of 2019 and Statutory Instrument 598 of 2021, the latter having come into operation on 1 February 2022. 

Based on the evidence before me and having regard to the relevant Sectoral Employment Orders, I find that the complainant’s normal working week was 48 hours per week and that the complainant was entitled to be paid for 39 hours at the basic hourly rate and 9 hours at time and a half.  The minimum basic hourly rate to which the complainant was entitled from 1 February 2022 was €18.47.

Accordingly, I find that the wages properly payable to the complainant in respect of 21 to 24 March 2022 inclusive, for 32 hours work at basic hourly rate and 8 hours work at time and a half, amounts to €812.72.

The complainant was entitled to receive payment for any accrued and untaken annual leave on cessation of his employment in accordance with section 23 of the Organisation of Working Time Act 1997. I calculate that accrued and untaken leave on cessation of the complainant’s employment amounted to 45.44 hours and so find that the sum of €898.78 in respect of holiday pay was properly payable to the complainant on the cessation of his employment with the respondent.   

The complainant’s uncontested evidence was that he did not receive wages for days worked from 21 to 24 March inclusive, and that he did not receive holiday pay in respect of leave accrued but not taken on cessation of his employment with the respondent.  I am satisfied that the non-payment of the foregoing amount to unlawful deductions within the meaning of section 5 of the 1991 Act.

I therefore find, in accordance with section 6 of the 1991 Act, that the complaint of a contravention of section 5 is well-founded and I direct the respondent to pay to the complainant €1,711.50.

CA-00052777-002 (Organisation of Working Time Act 1997)

This complaint concerned non-receipt of public holiday entitlement in respect of 17 and 18 March 2022.

Public holidays are set out in paragraph 1 of the Second Schedule of the Organisation of Working Time Act 1997 (the “1997 Act”), of which St Patrick’s Day / 17 March is one.   The Organisation of Working Time (Covid-19 Commemoration) Regulations 2022 prescribed 18 March 2022 as a public holiday for the purposes of paragraph 1 of the Second Schedule of the 1997 Act. 

Section 21 of the 1997 Act provides for the entitlement in respect of a public holiday to a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave or an additional day’s pay, as determined by the employer. 

The complainant’s uncontested evidence was that he did not work and was not paid for 17 and 18 March 2022.

Section 27(3) of the 1997 Act provides:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I find that the complaint of a contravention of section 21 of the 1997 Act is well-founded; the complainant ought to have received payment for the days off on 17 and 18 March 2022 in accordance with section 21 of the 1997 Act.  I calculate that payment to amount to €360.18.

Having regard to all of the circumstances, in particular the uncontroverted evidence of the complainant in relation to seeking payment from the respondent for the public holidays and the respondent’s failure to observe the complainant’s entitlement under the 1997 Act, I consider it just and equitable that the respondent pay to the complainant compensation of €1,000.00 for breach of the 1997 Act.

CA-00052777-003 (Payment of Wages Act 1991)

This complaint concerned an unlawful deduction in respect of rain gear provided to the complainant on site. 

The complainant was not able to provide evidence of this deduction.

I also note the date of the alleged deduction on the complaint form is 4 March 2022, in which case the complaint was presented outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

In the circumstances, I find that this complaint is not well-founded.  

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00052777-001

I find that this complaint of a contravention of section 5 of the Payment of Wages Act 1991 is well-founded and direct the respondent to pay to the complainant €1,711.50.

CA-00052777-002

I find that this complaint of a contravention of section 21 of the Organisation of Working Time Act 1997 is well-founded and direct the respondent to pay to the complainant €360.18 in respect of public-holiday entitlement on 17 and 18 March 2022, and €1,000.00 in compensation for breach of the 1997 Act. 

CA-00052777-003

I find that this complaint pursuant to the Payment of Wages Act 1991 is not well-founded for the reasons outlined above.

wages – properly payable – public holidays – annual leave