Complainant

Respondent

Parties

Muhammet  Baskan

Transmc Logistics Limited Transmc Logistics

Representatives

North Dublin Citizens Information Service CLG

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-00054836-001

02/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054836-002

02/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054836-003

02/02/2023

The Complainant started his employment as a Delivery Driver with the Respondent on 11 June 2022. He alleges that he is owed wages as well as holiday pay and also stated that he did not receive a written statement of his terms and conditions of employment.

The Complainant started his employment as a Delivery Driver with the Respondent on 11 June 2022. It was agreed at the outset that he would be paid €140 per day. Despite this initial agreement, and even though he worked for a total of 34 days during his employment, which concluded on August 28, 2022, he was paid only €3,340. Consequently, there was an outstanding balance of €1,420 in wages owed to him.

The Complainant also stated that he was not paid his accrued annual leave entitlement. He asserted that this amounted to €380.80 on the basis that he worked for 34 days at an agreed pay rate of €140 per day and that his statutory holiday entitlement is 20 days.

The Complainant also stated that he did not receive a written statement of his terms and conditions of employment at any time over the course of his employment.

The Respondent did not attend the hearing to give evidence.

CA-00054836-001:

Section 3 of the Act imposes an obligation on employers to provide their employees with a written statement of terms and conditions relating to their employment within two months of commencing employment. 

Specifically, section 3 of the Act provides:

3.— (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Findings

This is a complaint pursuant to the Terms of Employment (Information) Act regarding the section 3 requirement to provide an employee with a statement of the terms of their employment. It also requires that the document is signed by the employer and retained on file for at least a year after the ending of that employee’s employment. It is a requirement that transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). The requirement set out in section 3 has been law since 16 May 1994. 

In relation to the instant complaint, the Complainant stated that he did not receive a written copy of his terms and conditions of employment. As his evidence was uncontradicted, I find that this complaint is well founded.

CA-00054836-002:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as: 

“…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

Section 5(1) of the Payment of Wages Act 1991 provides: 

“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.” 

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornellscourt) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant stated that he was underpaid in the amount of €1,420 for the time that he worked with the Respondent. As his evidence was uncontradicted, I find that this complaint is well founded.

CA-00054836-003:

The Complainant stated that he did not receive any annual leave pay over the course of his employment

(i)                  Annual Leave entitlements

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Findings:

The Complainant is seeking payment for annual leave for the period for which he worked for the Respondent from 11 June 2022 to 28 August 2022, which he says he did not receive.

Having considered his uncontradicted evidence, I find that the complaint in respect of non-payment of annual leave is well founded.

CA-00054836-001:

I find that this complaint is well founded as set out above. In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks’ remuneration, namely €2,800 (€140 *5*4).

CA-00054836-002:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pay the Complainant €1,420 in respect of this complaint. This is subject to taxation and the normal statutory deductions.

CA-00054836-003:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent pay the Complainant €500 in respect of this complaint. This includes his annual leave entitlements as well as an element of compensation.