Complainant

Respondent

Parties

Patryk  Szczesny

Zenoz Limited

Representatives

Tommy McGarry

William Wall  - Peninsula

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-00054494-001

15/01/2023

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

CA-00054494-004

15/01/2023

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

CA-00054494-005

15/01/2023

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

CA-00054494-006

15/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054494-007

15/01/2023

This case is concerned with three complaints under the Terms of Employment (Information) Act: failure to provide core terms; failure to provide a statement of terms of employment; changes in the terms of employment without agreement as well as complaints of non-payment of wages on various dates between November 2021 and September 2022; and a claim of constructive dismissal. The Respondent is a manufacturer producing rapid prototyping to industry specification and delivering close tolerance volume production (from the employer submission). The Complainant was employed as a product developer at the Respondent’s premises.

It is agreed that the Complainant commenced employment on the 28th of June 2021 on the minimum wage at that time which altered over the course of his employment. As will be seen, the date of termination is not agreed. The parties were asked to provide documentation from the Revenue Commissioners which would indicate the date of termination. Documentation was received on 16 October 2023.

The gross rate of pay was €1591.20 per month working 40 hours per week at the time of termination.

Terms of Employment (Information) Act.

It was submitted that the Complainant did not receive his core conditions of employment or a statement of his terms and conditions of employment from the Respondent. Regarding changes without his agreement, he was not informed that he would only be paid when the work was completed and he was not informed that he was a contractor.

Payment of Wages Act.

The Respondent paid wages on a monthly basis. On the 26th of September 2022, the Complainant wrote to the Respondent setting out a table of payments received, underpayments and months where there was no payment of wages as follows:

Underpayments:        30.07.21, 29.11.21, 10.01.2022

No payment:              31.03.2022, 29.04.2022, 29.07.2022, 26.08.2022, 30.09.2022.

The total outstanding amount claimed was €10,925.65.

None of those payments were received.

On 9th January 2023, the Complainant sent an email containing the same details as before, that he had not received any payments since the 19th of July 2022. He sought that the balance of €10,925.65 would be paid into his account by the 16th of January 2023 and were it not paid he would make a formal complaint to the WRC in respect of the outstanding wages.

The Respondent replied to the email in January 2023 confirming receipt of the email and “your understanding regarding outstanding payments.” The response went on to seek a formal letter of resignation before discussing any outstanding payments and that there was a notice period to be worked. In the course of the submissions and evidence on his behalf it was stated that the Complainant resigned as an employee on 20th October 2022 and thereafter he dealt with Intreo in respect of jobseekers allowance It was further stated and supported by the Complainant’s evidence that a couple of days after the 20th of October 2022 he returned to work with the employer on a voluntary basis following what he described as an agreement that if he did so he would secure payment of his outstanding monies. In his evidence the Complainant stated that there was reference to him getting paid for November and December of that year, but he was not seeking payment for that time only for the monies which were owed to him to the end of September of 2022. In his evidence he stated that he had first raised the issue of non-payment of wages informally with the Respondent in or around November and December 2021 when he was looking for money for his family for Christmas. He could not recall the details of the response by the Respondent. Questioned as to why he had not made a complaint to the WRC prior to the 15th of January 2023 (date of complaint to WRC) the Complainant stated that he had no knowledge that he could pursue issues to the WRC until much later when he became aware of that possibility through another employee. He remained loyal to the company and wanted it to succeed. He is now working in another country on better working conditions than those at Zenoz.

On the subject of the time limit the representative stated that the Complainant was entitled to be paid and to receive his money and that he had tried to raise the issue verbally and in writing and that his referral to the WRC was the last resort.

Constructive dismissal.

In the complaint form the Complainant gave as the date of leaving the employment related to his complaint of constructive dismissal as 05/12/2022. It was submitted that he had no option but to leave the employment due to the failure to pay him outstanding wages. He had not been paid for July, August, or September of 2022. The form also stated that he was informed by the Intreo office that according to their records he was formally employed but not getting paid for his work. It was further stated that he had returned to the employment. In his evidence he stated that the date of termination was the 20th of October 2022 and that he had returned to work on a voluntary basis with no payment a few days later. In his evidence he accepted that he had caused a difficulty with a design which he explained as human error.

It was submitted on his behalf that while the employer was raising performance issues at these hearings that no formal process had was in place to deal with these issues as disciplinary matters. The fact of the matter is that the Complainant had no money, and he had no option but to leave. In cross-examination the Complainant was asked if he could recall the conversation with the Respondent which he described as occurring in late November 2021 to which the Complainant replied, not clearly, that he recalled it being said that the monies would be paid in time, soon. He approached the Respondent again on one or two occasions; that after a while he got used to it (not being paid). He stated that he went back to work after October 2022 on a promise that he would be paid for the months that had not been paid. Also in cross-examination, he stated that he had no idea of the WRC until much later on. Asked why he remained when he was not being paid, he replied that he was loyal to the Company. Asked why he did not leave in March or April of 2022, he said he did not know what to do, he did not know of any legal issue, he was ignorant of legal issues, and he was not told about any rights until December 2022. Asked if he had expressed an interest in going to work in the Netherlands while he was in the employment, the Complainant stated that he had expressed an interest of going there in a year or two. The Complainant confirmed that from September to December 2022 he was still attending in the office and that officially he stopped his voluntary work on the 8th of December 2022 when he stopped turning up.

Regarding his mitigation of losses, the Complainant gave three locations where he had applied for work, that he had obtained alternative employment in April 2023 and was in receipt of superior wages from that time and has since been promoted.

In their submission the Respondent gave as the date of commencement the 28th of June 2021 and last day worked as the 5th of December 2022. In relation to the individual items of complaint their position was as follows. The employment relationship was described as ‘eventful’ in terms of performance issues. These issues were raised with the Complainant by the Respondent and it was because of the competence issues raised that the complainant left the employment on 22nd September 2022.

Terms of Employment (Information Act)

Core terms.

The Respondent’s position is that the Complainant was provided with the main terms of employment but were unable to identify when this occurred.

A full statement of terms.

The Respondent complied with section 3(1) of the Act in providing a statement of terms of employment which fully complies with the provisions of the Act as set out. They were unable to provide a copy signed and dated by the Respondent. In addition to statement of terms, the Complainant had full access to an internal HR system which contained the employee handbook a copy of which was provided, and which covered all of the relevant policies and procedures within the employment. The only breach of section 3 of the Act is that the document provided by the employer was not signed and dated by them.

Payment of Wages Act 1991

Unpaid wages.

The preliminary point made on behalf of the Respondent was that of the time limits under section 41 of the Workplace Relations Act which it was submitted rendered the period of the 15th of January 2023 back to the 15th of July 2022 the cognisable period for the purposes of the complaint. Relying on the High Court case Health Service Execution v John McDermott the submission noted that “Time runs not from the date of any particular convention, but rather from the date of the contravention “to which the complaint relates”. Applying the terms of the 2015 Act and the decision in McDermott it was submitted that the only dates applicable under the claim in accordance with section 6(4) [of the Payment of Wages Act 1991] are the 29th of July, the 26th of August, and the 22nd of September 2022. The Respondent concedes that these payments are owed to the Complainant, i.e., €1,552.64 net x3 = €4,659.92 net. Asked why the wages were not paid, the representative referred to what he described as performance issues which occurred during the employment. It was further submitted that no grounds were put forward as reasonable cause to extend the initial time limits of 6 months up to 12 months. The employee could have made a complaint to the WRC at any stage.

In his evidence in relation to the constructive dismissal the Respondent also referred to the performance issues which resulted in work not being paid for, suppliers being paid and the Respondent not having enough money to make the payments and this was down to the Complainant.

Constructive dismissal.

The position of the Respondent is that the Complainant terminated his own employment in September 2022 at which time he did not mention any grievance and failed to invoke the grievance procedure. The Complainant spoke to the Respondent discussing his desire to work abroad. The Respondent removed the Complainant as an employee as requested and it was agreed that he would continue working at which point he was to invoice for his work if it were completed to a satisfactory standard. The week following his resignation the Respondent received an email from the Complainant saying that he was owed monies. This was different to anything that had been raised previously by the Complainant and the Respondent contacted the Complainant immediately who explained that this was for the purposes of the “dole office.” The 5th of December was a deadline that the Respondent gave to a client based on information from the Complainant and the Complainant then informed the Respondent that he could not deliver on what he had promised to do.

The Respondent made a legal submission referring to a number of precedent cases. It is the Respondent’s contention that the Complainant did not resign due to a failure in discharging his pay but had in fact sourced employment elsewhere. Had the Complainant believed his contract was breached due to him not receiving his pay why would he not have affected his dismissal on the first occasion when his pay was unfulfilled. Again, it was reiterated that a number of performance issues arose with the Complainant during the course of his employment. The claim of constructive dismissal was rejected.

In his evidence the Respondent described that the Complainant was first employed as an intern, that he was asked would he be able to do certain type of work to complete it and when he replied that he could do so he was employed. He referred to issues around the Complainant in terms of work performance, referencing design errors, stupid mistakes and acknowledging that the Complainant was very upset about those errors for which the client was not going to pay. Other employees had fulfilled their role, but the work of the Complainant was at the end of that line, and it was at that point that the difficulties arose. He himself did not have the technical skills for overseeing the work and they engaged another company to manage the project. A report from that company identified the Complainant as the single point of failure in the project. The financial losses were described as immeasurable. The witness stated that the Complainant resigned on 22nd September 2022 at his request for a variety of personal reasons some of which appear to relate to his mother being able to get a rent supplement. It was agreed that he would become a subcontractor to be paid subject to completing the task. The witness stated that the Complainant returned to work on September 23rd , i.e., that he was back in the next day as a subcontractor. A few days later he received the email seeking payment of monies owed and he immediately rang the Complainant asking what this was about to which he replied that it was in order to be able to get the free money from the welfare. The witness stated he did not put anything in writing but there was a direct contradiction between what was being said in the email and what was being said in the phone call. There were substantial efforts made to keep the Complainant in the Company in spite of the difficulty as it would have been difficult to start and train another person at that stage.

While working as a subcontractor the Complainant was doing up CVs and emails applying for jobs in the Netherlands. The arrangement was that the Complainant was interested in subcontracting, that he would invoice for his hours, and he would be paid the previously agreed rate of pay on completion. The witness stated he did not know that the Complainant had applied for benefits [Jobseekers] until the WRC form was received. The witness stated that the Complainant had direct access to an app for the staff handbook. On the 9th of December 2022 he provided the Complainant with a password but on the 12th of December 2022 the Complainant stated that he was no longer coming in to work and some days later on the 16th of January 2023 the email for outstanding payments was received. Asked what employment the Complainant was resigning from if he was a self-employed contractor at that stage, the Respondent referred to advice that he received that he should get a formal resignation as he had nothing on the file.

Terms of Employment Information Act

When the employer is unable to provide a copy of the statement(s) which they have signed and dated supported with some evidence of having provided either a full or partial statement  of terms to the employee, the evidence of the Complainant must take precedence.

There is nothing about the control and operation of this employment relationship which would suggest anything orderly by way of issuing the relevant documentation by the employer and in a timely manner. Having reviewed the staff handbook, I find it contains a significant number of the elements required to be provided in a written statement. There was no denial that the Complainant had access to this document.

Regarding the changes in his contract terms, I see nothing which provides any term in the handbook or indeed the unsigned statement that there was any agreed basis of  non-payment of wages. The change in the oral contract that wages would be paid for attending for 40 hours per week, was made by the Respondent and was made without the agreement of the Complainant. I am satisfied from his evidence that the final change claimed, that of a different form of engagement post October 2022, was agreed with the Complainant, on his own evidence, and is not a valid complaint. 

The Respondent is to pay compensation of €1200. I have discounted for the provision of the handbook. This is one award in respect of the three breaches claimed i.e., non-provision of core terms, not providing a signed statement of full terms and changing the agreed payment of wages without the Complainants agreement.

TERMS OF EMPLOYMENT (INFORMATION) ACT 1994

REVISED

Updated to 16 December 2022

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

7.

(2) 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 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, 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) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, and without prejudice to any order made under paragraph (e)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, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

Payment of Wages Act 1991

From time-to-time situations arise and become a source of complaint to the WRC where an employee is not paid all or a significant portion of their due wages over a lengthy period. It is always a wonder that the employee continues to work in spite of the irregular or non-existent pay and how they survive without pay or with little pay is a mystery. This employee was engaged for what appears to have been highly technical work-initially on the minimum wage. Eventually he was being paid €1591 per month-hardly the level of wages that would keep anyone going for more than a pay period. The pattern of non-payment and underpayment in this case was nothing short of exploitation and a breach of the most fundamental part of the bargain with the employer through any contract-they provide their labour and the employer pays them. If the worker cannot provide the service required to an acceptable standard, there are ways of dealing with that underperformance including dispensing with their services if the problem is either extremely serious and/or there is no improvement. But stopping their wages and then claiming poverty is not one of the options available to any employer. So, this is a debt owed by the Respondent to the Complainant. The only issue to be decided is how much of that debt is to be paid by reference to the Payment of Wages Act 1991.

Unpaid wages represent an ongoing accruing debt in this instance. It is not a debt that simply disappeared after six months or which the employee cannot pursue after six months have elapsed except as a debt under common law. This is a debt which the Complainant was pursuing over a period of time. The evidence of the Respondent that prior to the written communication commencing in September 2022, the Complainant had not raised the wages owed or that he had not queried it when it first started, is not credible. But even if that were the case, that for a period of almost a year, the Complainant silently accepted the mounting debt, in September 2022 he most definitely raised the issue. And he ceased to be an employee a few weeks later (the date in October is the one which I accept as the conversion from an odd relationship of accepting intermittent payments into an even more peculiar one which involved no pay at all). I am satisfied on the balance of probabilities, that in remaining in the ‘employment’ the Complainant had a genuine hope based on his understanding he would receive his back wages, with almost no certainty of other payments once he changed his ‘employment’ status or at best based on performance. This leads to another conclusion, which is relevant for the purposes of the complaint of constructive dismissal, regarding the basis on which the employment relationship ended.

In relation to the wages withheld unlawfully, the conclusion that this was an ongoing and accruing debt which was never settled by the Respondent and the terms of his own email of January 2023 acknowledging the existence of the debt means, that the contravention was in existence in December 2022, the date the Complainant last attended the workplace.. Furthermore, in his email of 9 January 2023, the Complainant gave notice to the Respondent of a deadline of 16 January 2023 for payment of the monies owed. In his response, the Respondent did not query the amount, or that it was owed which reinforces the conclusion that this was an accruing and ongoing debt which remained owing to the Complainant in January 2023 and the continued non-payment was the contravention at that time. The Respondent never mentioned the timeline, never mentioned it was gone, instead on 16 January 2023 he confirmed the monies were owed when he wrote ‘I am confirming acknowledgement and receipt of your email and your understanding regarding outstanding payments.’ This conclusion leads to the finding that all wages identified by the Respondent  as outstanding  in the email of January 9 , 2023 and confirmed by the Respondent were acknowledged by him as a debt owed. Furthermore, I am satisfied that the Complainant returned to work as a self-employed person albeit also for other reasons which suited his family circumstances, but in part at least because he hoped the money he was owed would be paid to him for the work he would do in the remaining months of 2022. This fitted in with his registration with Intreo. In the meantime, sometime around December he became aware he had rights in relation to the outstanding wages and he sought to pursue them in January 2023 based on that advice.

The six months provided for under section 41 continued throughout the period of underpayment and no payment until 16 January 2023, the deadline given by the Complainant to the Respondent.  and the full amount falls for consideration under the Payment Wages Act 1991 as a deduction of monies withheld or unlawfully deducted by the Respondent. Regarding the amount to be paid, given the seriousness of the matter at issue here, repeated and ongoing non-payment of basic wages which were properly payable, I have decided to exercise the discretion to increase the basic amount of the deduction as provided for in Section 6 1(b) of the 1991 Act, as amended. In exercising this discretion and allowing for all of the circumstances the amount owed to the Complainant is increased by approximately 50% in the decision below, allowing for the nature of the breach of contract and the length of time over which the breach was repeated. The figure contained in the decision is a nett figure with the Respondent responsible for the payment of any tax and other deductions arising for the payment.

PAYMENT OF WAGES ACT 1991

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

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—

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

Constructive Dismissal

When did the employment relationship end and in what circumstances?

The Respondent claimed the employment ended on 22 September 2022 in their submission. After the hearing and at my request, the Respondent provided documentation giving 25 September as the date of termination. This was not a Revenue document but one provided by an accountant. This date is claimed as the last day worked.

The Complainant on the other hand is consistent that he left on 20 October 2022 which date was verified by a revenue document he provided following the hearing. And his evidence to the hearing was that  he recommenced with the Respondent on a different basis a couple of days later. I am satisfied that the Complainant decided to stay on with the Respondent on a self-employed basis partly in the hope of getting his outstanding wages and partly for family reasons where it suited his family better were he registered as having no income or unemployed.  The Complainant either entered into a false relationship with the Respondent for the purposes of claiming benefits or he simply and oddly decided he would be better off on a self-employed basis, or both. He cannot justify a complaint of a constructive dismissal on grounds of non-payment when he chose to go back into some sort of a working contract with the same employer almost immediately after his resignation as an employee. The Complainant was not an employee in January 2023, by his own evidence. Had he left in September/ October and not renewed the relationship in any form, he might well have had a justification for his complaint of constructive dismissal, but in light of the facts, his complaint is dismissed.

 CA-00054494-001 Payment of Wages Act 1991 The complaint is well founded. Zenoz Ltd (the Respondent) is to pay the Complainant the sum of €15000 gross and nett in respect of wages withheld and unlawfully deducted from Patryk Szczesny (the Complainant)

 CA-00054494-004-005-006 Terms of Employment Information Act 1994 as amended. The Respondent is to pay the Complainant €1193 compensation in respect of the breaches of the legislation in this complaint which is well founded.

 CA-00054494-007 Unfair Dismissals Act 1977 The complaint is dismissed.

Unpaid Wages -Statements of Terms-Constructive Dismissal