ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047589
Parties:
| Complainant | Respondent |
Parties | Levan Tevzadze | BC-R Group |
Representatives | Self-represented | No attendance |
Complaints:
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-00058622-001 | 03/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00058622-002 | 03/09/2023 |
Date of Adjudication Hearing: 07/03/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a General Operative from 16/05/202 to 23/06/2023. His complaint under the Payment of Wages Act 1991 is that the Respondent failed to pay him the agreed rate for his work. He also claims that the agreed contractual rate was changed without his consent or knowledge which he submitted was in contravention of the Terms of Employment (Information) Act 1994.
Summary of Complainant’s Case:
The Complainant stated that he applied for the position of General Operative through Indeed and was offered the job by Mr B from the Respondent and the agreed rate was €21 per hour for day work and €31.50 for nights. He submitted a payslip proving that when he worked days he received €21 per hour (21 hours) and when he worked nights he received €31.50 (8 hours). His rate was then dropped and when he queried it he was told that the rate for nights was uplifted 18%. He was offended by being called a “clown” by Mr B in correspondence/texts and he felt it was disrespectful and unprofessional. He stated that he reported to a subcontractor on site and when the work was over earlier than planned the job ceased.
Summary of Respondent’s Case:
The Respondent did not attend the hearing or send a representative. Mr B from the Company emailed the WRC to state that he was not attending the hearing and that the Complainant was not an employee, he was subcontracted and that he was paid any monies due.
Findings and Conclusions:
CA-00058622-001 Payment of Wages Act 1991
I note the dispute between the parties as to the rate applicable to nights. In relation to the Respondent’s assertion that the Complainant was not an employee but was a subcontractor I find that the Complainant was not self-employed. There was no element of being in business of his own account as is the general characteristic of self-employment. The Supreme Court decision in Revenue Commissioners v Karshan (Midlands) Ltd t/a Dominos Pizza [2023] IESC24 set out a new test for establishing employment status including the tests of exchange of wages for work, employees providing services and the matter of sufficient control. The Complainant in this case reported to the subcontractor on site and was under the control of that entity. I note the payment of €31.50 per hour on the payslip provided by the Complainant. I find on the balance of probabilities; the Respondent changed the rate for the job after the Complainant commenced employment without his consent.
Section 5 of the Act provides:
5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— |
( a ) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, |
( b ) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or |
( c ) in the case of a deduction, the employee has given his prior consent in writing to it. |
Section 6 of the Payment of Wages Act 1991 provides:
(6) Where— |
( a ) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or |
( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, |
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. |
I find that the deficiency in wages properly payable to the Complainant in this case amounted to €430.08 as claimed by the Complainant. I find the complaint to be well founded.
CA-00058622-002 Terms of Employment (Information) Act 1994
Section 3 of the Act provides for certain specific information to be written into written terms of contracts of employments. Section 5 provides for the requirement to notify the employee of changes. In this case, no written contract was provided and specific changes therefore to such a written contract could not have been notified in writing.
I find the complaint to be not well founded.
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.
CA-00058622-001 Payment of Wages Act 1991
I have decided that the complaint is well founded, and I require the Respondent to pay to the Complainant the sum of €430.08.
CA-00058622-002 Terms of Employment (Information) Act 1994
I have decided that this complaint is not well founded.
Dated: 5th April 2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Payment of Wages, agreed rate reduced |