Complainant

Respondent

Parties

Laimonas  Gecas

Transaway Ltd

Representatives

  In person

 Paul Larkin and Michelle McClave

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059043-001

26/09/2023

The Complainant worked for the Respondent as a lorry driver. When he issued his WRC complaint on 26 September 2023 he was still working for the Respondent and he still had not received any contract or terms and conditions of his employment in writing. His employment ended on 19 January 2024 when the Respondent ceased trading.

The Complainant (under affirmation) gave the following evidence with the assistance of a Lithuanian interpreter (under affirmation).

1.      He commenced work as a lorry driver on 23 January 2023.

2.      He did not receive his five-day statement nor his one-month statement of his employment terms within one month of commencing employment

3.      He received payslips but it was never clear to him how his pay was calculated.

4.      When he asked his manager,  he was not provided with either an explanation or a contract.

5.      He had a verbal agreement with his employer that he would be paid €130 per day into his hand plus overtime. He worked five days per week so he was entitled to a basic weekly net pay of €650 but he generally received more than that, because he did overtime.  It was not clear to him what his salary was or how it was calculated. He asked many times for someone to explain how his pay was calculated but no one from management would explain that.

6.      The written contract that he received after he issued the WRC complaint did not comply with the statutory requirements

7.      He was informed by the Respondent on 19 January 2024 that his employment was terminated because the Respondent had ceased trading.

8.      At the hearing he could not advise the Adjudicator what his gross weekly salary was because he never knew himself. He accepted that for the weeks that he was paid a net salary of €650. He thinks that his gross salary should have been in or around €800.

The right to cross examine the Complainant was not availed of by the Respondent.

Paul Larkin, the owner of the company gave evidence (under affirmation) as follows:

1.      He accepted that when the Complainant issued his WRC complaint form that he had not been provided with a contract or terms and conditions of his employment in writing, although he provided with one subsequently.

On the basis that the complaint was not being denied, in response to the Adjudicator’s question on the gross weekly pay, he said:

2.      The Complainant’s pay was agreed to be an in-to-hand payment of €130 per day plus overtime.

3.      This meant a minimum weekly payment of €650, but this also included a large amount of subsistence which was not part of his wages.

4.      His gross pay would most accurately be calculated based on the Complainant’s tacograph readings on his lorry.

5.      Considering the spreadsheet of employee earnings that he provided to the WRC, when week 4 of 2023 is considered (the first week of the Complainant’s employment) his gross pay was €475 and his subsistence was €218, which made a net final payment of €693 (although the Complainant in fact that week only received €650, which Mr. Larkin accepts was an underpayment – but this was remedied later in December 2023)

6.      Mr. Larkin does not accept that the calculation of the Complainant’s gross pay should include the subsistence allowance. He contends that the gross weekly pay should be based instead on an hourly rate of minimum wage and the time worked relying on the tacograph reading, which for example using the first week of the Complainant’s employment would have been €475.

The Complainant did not avail of the opportunity to cross examine the Respondent.

This is a simple complaint insofar as the Complainant claims that he was not given a contract and this is conceded by the Respondent.

The investigation became more challenging when the calculation of the appropriate level of award was addressed.

The Terms of Employment (Information Act) 1994 as amended sets out (at section 7 2(d)) that where a complaint is conceded/determined as well founded,  the Adjudication Officer may order the employer to pay the employee compensation of such an amount as if just and reasonable but not exceeding 4 weeks remuneration.

The Terms of Employment (Information Act) 1994 states that an employee’s weekly remuneration is calculated in accordance with the regulations made under section 17 of the Unfair Dismissals Act, in which (in accordance with SI. 287/1977) renumeration includes allowances in the nature of pay (including overtime) and benefits in lieu, in addition to pay.

Where work-hours change from week to week, the gross weekly wage is calculated (in accordance with Regulation 11 of SI 287/1977) based on an average of the previous 52 weeks prior to the dismissal. The Unfair Dismissals Act 1977, as amended, no account is taken of the Income Tax Acts and so this mandates in claims under the Terms of Employment (Information Act) 1994 that the calculation for a it is based on the gross weekly wage as opposed to the net weekly wage.

The challenge in this adjudication arises when trying to ascertain what the Complainant’s gross weekly wage was.

The Respondent’s evidence on this is unclear. A spreadsheet of the Complainant’s wages were provided to the WRC by the Respondent but at the hearing the Respondent wished instead to reply on the hourly rate of pay and the tacograph readings which were different to the spreadsheet. The Respondent’s evidence was that during his employment the Complainant was under paid in some weeks and over paid in others, which meant that the spreadsheet figures were unreliable.

The Complainant does not understand how his weekly pay was broken down by the Respondent. Indeed he never knew this (and this was always part of his problem with his former employer).

I would have expected the Respondent to know or find out in advance of the hearing, particularly given that the complaint was conceded, what the Complainant’s weekly pay was.

Unfortunately the hearing did not clarify this because the Respondent wished to change the figures that they had provided to the WRC.  However it seems clear to me that the time that the Complainant’s working hours were not confined to those he spent driving his lorry, so I am not persuaded that the approach suggested by the Respondent is in fact the correct one to take.  

Instead I have made this calculation based on the spreadsheet figures that the Respondent provided to the WRC which are in a general sense corroborated by the Complainant’s evidence.

I added together the Complainant’s basic pay (termed “gross pay” on the spreadsheet, even though it does not take account of tax that was paid) together with the subsistence pay that he received (benefit in kind), and I reached a weekly payment, which is prior to any tax deduction.  As the Complainant’s hours varied week to week over the course of his employment, I then averaged this amount over the time that he was employed, namely 44 weeks. This allowed me to include over-time pay averaged out over 44 weeks.

I arrived at a gross weekly wage of €756.81

As this complaint is conceded I find this complaint to be well founded and I award the Complainant 4 weeks of gross pay, namely, €3027.25

This complaint is well founded. I award the Complainant €3027.25

Terms of Employment (Information) Act 1994 – gross weekly wage