ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046872
Parties:
| Complainant | Respondent |
Parties | Mark Reaney | Irish Gulf Contracting Ltd |
Representatives |
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Complaint:
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-00057833-001 | 21/07/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057833-002 | 21/07/2023 |
Date of Adjudication Hearing: 18/10/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following two complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 21st of July 2023 was submitted within the time allowed.
The Complainant has also brought a second complaint which relate to contraventions of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Another complaint articulated by the Complainant was regarding a contravention of Section 21 of The Organisation of Working Time Act 1997. Section 21 of the Act which sets out those circumstances which give rise to Entitlement in respect of public holidays:
21.—
(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
(2)An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3)If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.
(4)Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
(5)Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.
(6)For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (iv) Declare the complaint was or was not well founded;
- (v) Require the Employer to comply with the relevant provision;
- (vi) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. The Complaints herein were brought to the attention of the WRC by way of workplace relations complaint form which issued on the 21st of July 2023. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. The Complainant gave oral evidence on Affirmation. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form The Complainant alleges that at the end of a six-month period of employment with this Employer, the Employer failed to pay certain remunerative entitlements including Holiday pay and Public Holiday pay. In addition the Complainant says that the Respondent Employer illegally deducted a sum of money from the last pay check which was due to the Complainant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes or other sections of Statutes already referenced) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.
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Summary of Respondent’s Case:
The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 1st of September 2023 - and emailed to the email address specifically provided by the Respondent on the workplace relations complaint form. The Respondent had specifically agreed to communication by electronic means in the course of correspondence. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the Complainant herein. His evidence is unchallenged as the Respondent did not attend. I am satisfied the Respondent was on notice of the date set for the hearing of this matter. The Complainant was engaged by the Respondent as a pre-cast wall installer. The Employment started at the end of January 2023. The Complainant said that five days a week he would commence work at 7am and would work through to 5.30pm with a half hour break. The Complainant was being paid €18.00 per hour, and working 10 hours per day and up to 50 hours per week. The per diem rate was €180.00. The parties appeared to fall out after the Complainant had a tooth extraction which left him in too much pain to work. The Complainant says that his Employer summarily dismissed him arising out of this. The Complainant has indicated that his last day of work was the 22nd of June 2023. The Complainant stated that he was never paid for the February Public Holiday which was enjoyed in this jurisdiction for the first time in February of 2023.The Complainant also says that he did not receive his correct annual leave pay which was 7 days less than what he says he was entitled to. In addition, the Complainant gave evidence that the Employer deducted a sum of €60.00 from his final wage package for rent or accommodation that the Complainant did not avail of. I accept the Complainant’s uncontested evidence. The Complainant says that he repeatedly sought these remunerative payments after he had left the workplace. The Employer has, as I understand it, refused to engage with the Employee. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00057833-001 – The Complaint herein is well-founded and I direct that the Respondent does pay to the Complainant the sum of €60.00 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00057833-002 – I declare the complaint is well founded and I require that the employer pay to the employee compensation in the amount of €1,080.00 which amount is just and equitable having regard to all the circumstances.
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Dated: 8th November 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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