Complainant

Respondent

Parties

Ivan  Spanjic

 Ivan Erceg

Representatives

  N/A

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055272-001

22/02/2023

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

CA-00055272-002

22/02/2023

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

CA-00055272-003

22/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055272-005

22/02/2023

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

CA-00055272-006

22/02/2023

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

CA-00055272-007

22/02/2023

On 13 June 2022, the Complainant commenced work as a roofer for the Respondent. The Complainant earned €720 net or €914.55 gross per week, working approximately 50 hours per week. The Complainant submitted that following an argument with the Respondent on 13 September 2022, the Respondent told the Complainant to go home and the Complainant’s employment ceased.

On 22 February 2023, the Complainant brought a number of complaints relating to this period of employment, seeking adjudication under section 7 of the Terms of Employment (Information) Act 1994 as amended; section 12 of the Minimum Notice & Terms of Employment Act as amended; section 6 of the Payment of Wages Act 1991 as amended; and section 27 of the Organisation of Working Time Act 1997 as amended.

The Complainant submitted that he left a previous job in which he was happy, to work for the Respondent, who at the time was his neighbour and friend. The Complainant worked as a roofer and the Respondent provided roofing services. The Complainant worked on sites in Dublin City Centre and in Carrickmines, Dublin.

The Complainant submitted that the first 3 to 4 weeks were relatively problem-free. The Respondent paid him €720 into his account and the rest was paid to him in cash. However, the Complainant submitted that pay-related issues soon began to arise. The Complainant outlined that on 13 September 2022, the Respondent climbed up onto the roof where he was working. The Complainant submitted that they had an argument as the Respondent was lying to clients, telling them that jobs were completed when this was not the case. The Complainant submitted that the Respondent shouted at him and told him not to return to work.

The Complainant submitted that he did not bring his WRC complaints sooner as he wanted to give the Respondent the opportunity to resolve the matter. He was also homeless for a period. He submitted that his friend told him to call the WRC.

CA-00055272-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

The Complainant submitted that he never received a statement in writing on his terms of employment from the Respondent. He submitted that the Respondent told him that he would receive his contract “tomorrow, next week”, but he never received it.

CA-00055272-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

The Complainant submitted that the Respondent told him that he would work from 8am until 4pm, however this changed and he worked from 7am until 7.30pm. The Complainant further submitted that his payslip was not accurate. Finally, the Complainant submitted that he received nothing in writing.

CA-00055272-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973:

The Complainant submitted that due to the Respondent’s conduct, the Complainant had previously threatened to leave but did not do so. He submitted that the Respondent was lying to clients, telling them that jobs were completed when this was not the case. The Complainant submitted that he was getting into trouble with clients as a result. The Complainant submitted that on 13 September 2022, during an argument, the Respondent shouted at him and told him not to return to work. The Complainant submitted that he was dismissed without notice.

CA-00055272-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

The Complainant submitted that he was not paid for the two weeks ending 19 August 2022 and 26 August 2022. He submitted that he was provided with the relevant payslips but that he was never paid. The Complainant provided a copy of those payslips in advance of the Hearing.

CA-00055272-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act:

The Complainant submitted that he never took any annual leave during his period of employment. The Complainant further submitted that he never received any pay in lieu of annual leave.

The Respondent did not attend the Hearing.

CA-00055272-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act:

This complaint was withdrawn at the Hearing on 11 December 2023 as it was a duplicate complaint.

CA-00055272-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

The Law:

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A requires an employer to provide employees with a statement in writing concerning aspects of an employee’s terms and conditions of employment within one month of commencing employment.

Award:

Section 7 of the TE(I)A provides that compensation up to a maximum of 4 weeks’ remuneration may be awarded if a complaint is deemed well founded. In Beechfield Private Homecare Limited v. Ms Megan Hayes Kelly, TED 1919, the Labour Court awarded the maximum of four weeks’ remuneration. Here the Chairman of the Court noted “[i]n determining the appropriate level of compensation it should award in a particular case, the decisionmaker must take into account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum …”.

Findings and Conclusion:

The Complainant was employed by the Respondent for three months, from 13 June until 13 September 2022. Despite his requests, he was not provided with a contract of employment. The Complainant’s evidence was uncontested. Consequently, the Respondent was in breach of section 3(1) of the TE(I)A. In the circumstances, I find this complaint well founded. Pursuant to section 7 of the TE(I)A, I direct the Respondent to pay the Complainant compensation of four weeks’ remuneration, which is just and equitable having regard to all the circumstances. This amounts to €3,658.20 (4*€914.55).

CA-00055272-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

The Law:

Section 5 of the Terms of Employment (Information) Act 1994, as amended, provides that when a term of employment changes, an employee should be notified in writing of the change:

“(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

Findings and Conclusion:

The Complainant was not provided with a contract of employment and an award has already been made regarding the same, as outlined above. If no statement was provided, then it follows that no changes could have been made to “the particulars of the statement furnished” by the Respondent. In the circumstances, I find that this complaint is not well founded.

CA-00055272-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973:

The Law:

Notice entitlements are set out under section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended (the “MNTEA”), as follows:

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of thissection.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week”.

Award:

Section 12(1) of the MNTEA provides:

“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 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention”.

Findings and Conclusion:

The Complainant was employed by the Respondent for thirteen weeks. Pursuant to section 4(2)(a) of the MNTEA, the Complainant was entitled to one weeks’ notice. The Complainant submitted that he was not given a minimum period of notice as required under the MNTEA. His evidence was uncontested. Section 12(1) of the MNTEA states that the employer can be directed to pay an employee compensation for any loss sustained, following a breach of section 4(2). In the circumstances, I find this complaint well founded. I direct the Respondent to pay the Complainant one weeks’ remuneration by way of compensation. This amounts to €914.55.

CA-00055272-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

The Law – Preliminary Issue – Cognisible Period:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

This six-month time period can be extended, where reasonable cause is demonstrated. To this end, section 41(8) of the WRA provides:

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Law – Substantive Issue – Payment of Wages:

The Payment of Wages Act 1991 as amended (the “PWA”) regulates deductions to an employee’s wages and prohibits unlawful deductions.

Section 5 of the PWA deals with the regulation of certain deductions made by employers.

Section 5(6)(b) of the PWA states that failure to pay amounts due on the occasion when due “…shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6 of the PWA outlines the directions which an adjudication officer can make, where a complaint is wholly or partly well founded.

Findings and Conclusion:

The Complainant submitted that he was not paid for the two weeks ending 19 August 2022 and 26 August 2022. He submitted that he was provided with the relevant payslips but never paid. The Complainant provided a copy of those payslips in advance of the Hearing. His evidence was uncontested.

The Complainant commenced work on 13 June 2022. His last day of work was 13 September 2022. He filed his Complaint Form on 22 February 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 23 August 2022.

The Complainant submitted that he did not bring his complaints sooner as he wanted to give the Respondent the opportunity to resolve the matter. He also submitted that he was homeless for a period. He had no evidence in support of the same. In the circumstances, the Complainant has not demonstrated reasonable cause for the delay in bringing his complaint and so I can only consider his payment of wages complaint for 23, 24, 25 and 26 August 2022. The Complainant’s wages for those four days are properly payable to him. In the circumstances, I find that this complaint is partly well founded. The Respondent is to pay the Complainant €576 net (4*(€720/5)).

CA-00055272-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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).

Provided that if more than one of the preceding paragraphs is applicable in the case concernedand the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27 of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings and Conclusion:

At the Hearing, the Complainant submitted that he never took any annual leave during his period of employment and that he never received any pay in lieu of annual leave. The Complainant submitted his Complaint Form to the WRC on 22 February 2023. Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2022 until 31 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, and as no reasonable cause for the delay was demonstrated (as discussed above), I can only consider a complaint from 23 August 2022.  

From 23 August 2022 until 13 September 2022, the Complainant worked approximately three weeks, accruing approximately two days’ annual leave. The Complainant submitted that he took no annual leave and his evidence was uncontested. In the circumstances, I find this complaint partly well founded. I find that the Complainant is entitled to two days’ remuneration by way of compensation, which is just and equitable in the circumstances. This amounts to €365.82 (2*(€914.55/5)).

CA-00055272-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act:

This complaint was withdrawn on 11 December 2023 as it was a duplicate complaint.

CA-00055272-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

For the reasons outlined above, this complaint is well founded. I direct the Respondent to pay the Complainant €3,658.20.

CA-00055272-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994:

For the reasons outlined above, this complaint is not well founded.

CA-00055272-005 – Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice and Terms of Employment Act 1973:

For the reasons outlined above, this complaint is well founded. I direct the Respondent to pay the Complainant €914.55.

CA-00055272-006 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is partly well founded. I direct the Respondent to pay the Complainant €576 net.

CA-00055272-007 – Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act:

For the reasons outlined above, this complaint is partly well founded. I direct the Respondent to pay the Complainant €365.82.

Terms of Employment (Information) Act 1994, Minimum Notice and Terms of Employment Act 1973, Payment of Wages Act 1991, Organisation of Working Time Act 1997, Cognisible Period.