FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: LTL LIMITED - AND - DANIEL BALASI (LITIGANT IN PERSON) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) 00038269 CA-00049652-001 This is an appeal by Mr Daniel Balasi (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00038629, dated 5 January 2023) under the Payment of Wages Act 1991 (‘the Act’). The Adjudication Officer held that the complaint was not well-founded in circumstances where there was no appearance by or on behalf of the Complainant at the first-instance hearing. Notice of Appeal was received in the Court on 15 February 2023. The Court heard the appeal in a virtual courtroom on 12 April 2023. The Claim The Complainant was employed as an HGV driver by LTL Limited (‘the Respondent’) for a brief number of weeks between 29 November 2021 and 21 January 2022. During that period, the Complainant was absent on unpaid leave for some three weeks between 16 December 2021 and 10 January 2022. In the within proceedings, he is seeking payment for three public holidays that occurred during the period he was absent from the workplace. The monetary value of the three public holidays is €346.80 gross in total based on the Complainant’s total daily rate of €140.00 less the Revenue-approved daily subsistence payment. The Complainant and the Respondent are at odds in relation to the Complainant’s status during the period of his absence. It is submitted on behalf of the Respondent that the Complainant was employed by it for two distinct and separate periods of employment. The Complainant, on the other hand, submits that his employment with the Respondent was continuous from 29 November 2021 until 21 January 2022 albeit interrupted by a period of agreed unpaid leave. Mr Tom Duffy, Managing Director of the Respondent, told the Court that he hired the Complainant in November 2021 on a three-week trial basis. He also said that he had been informed by the Complainant that he needed to return to his home country for three weeks over the Christmas period. Mr Duffy’s evidence was that he had no expectation that the Complainant would return to work for the Respondent again. He also said he believed there was no obligation on the Complainant to do so and neither was the Respondent obliged to offer him employment if he did return. Therefore, the Respondent took possession of the Complainant’s fuel card, the keys of his lorry and all associated documentation on 15 December 2021. According to Mr Duffy, the employment relationship between the Complainant and the Respondent was terminated by mutual consent on that date. The Respondent proceeded to notify Revenue that this was the case and the Complainant was removed from the Respondent’s HR portal. When pressed by the Court, Mr Duffy said that he had issued a written contract of employment to the Complainant at the commencement of his employment that was open-ended and did not make reference to a three-week trial period. The Complainant submitted that he was at no time told by the Respondent that his employment with it had been terminated on 15 December 2021 or that Revenue had been so informed. He accepted that he had read and signed his contract of employment in November 2021 but had never received a copy of it although he had made several requests for a copy. The Complainant also said that he had booked his return flight to his home country the previous September with a clear return date of 9 January 2022. Discussion and Decision The definition of wages for the purposes of the 1991 Act includes “in relation to an employee … any sums payable to the employee by the employer in connection with his employment, including … any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise …”. The appeal is, therefore, technically correctly before the Court. However, the Oireachtas has enacted specific legislation (i.e. the Organisation of Working Time Act 1997) that provides for redress to employees who have not been paid correctly,inter alia, for annual leave or public holidays. In the Court’s view, claims such as the within are more appropriately brought under the Act of 1997. The Court finds that Mr Duffy’s evidence that he issued the Complainant with an open-ended contract of employment in November 2021 is inconsistent with his claim that the agreement he entered into with the Complainant was for a three-week trial period only. Moreover, Mr Duffy gave no indication to the Court that the Complainant’s work was anything less than fully satisfactory. The Court finds that the Complainant’s version of what the Parties had agreed to be more cogent and convincing. It, therefore, follows that the Complainant was in the continuous employment of the Respondent from 29 November 2021 until 21 January 2022 and is entitled to payment for the three public holidays that fell during his period of agreed unpaid leave from that employment. The Complainant’s appeal succeeds and the Respondent is, therefore, directed to pay the Complainant €346.80. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
