Complainant

Respondent

Parties

Adam  Graham

Alan Barry  t/a Alan Barry Plumbing & Heating Gas Services

Representatives

  Self-Represented

 Self-Represented

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-00062617-001

05/04/2024

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

CA-00062617-006

05/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00062617-007

05/04/2024

The Complainant submits that he was originally employed as an apprentice plumber by the Respondent from 7 February 2022 until his resignation on 18 September 2023. His wages were €300 net on the date of resignation. The Respondent is a sole trader.

The Complainant claims  that he never received a copy of  his core terms of employment within five days of commencement of employment, nor his greater terms of employment within two months of commencement of his employment, contrary to section 3 of the Terms of Employment Information Act 1994 (“the 1994 Act).

The Complainant claims that he never received wages properly payable to him contrary to section 5 of the Payment of Wages Act 1991 (“the 1991 Act”).

The Complainant claims he was penalised when reprimanded for making a health and safety complainant contrary to section 27 of the Safety, Health, and Welfare Act 2005 (“the 2005 Act.”).

The Respondent concedes that the Complainant did not receive a written copy of his terms of employment in any form within the prescribed period under the 1994 Act therefore the only issue to be addressed is that of appropriate redress under the 1994 Act.  The Respondent denies the complaints under the 1991 and 2005 Acts, respectively. The contested complaints therefore were CA-00062617-003 and CA-00062617-007.

Preliminary Point – Time Limit:

The Complainant had been made aware in correspondence from the Workplace Relations Commission (WRC) that his claims were not within the 6-month period as required under the Workplace Relations Act 2015. His date of resignation was 18 September 2023, but the complaints were received by the WRC on 5 April 2024. The Complainant is pleading reasonable cause for an extension of the period to 12-months on the basis  he was the victim of  a serious assault on 16/17 January 2024 , unrelated to this case or the workplace , which required hospital treatment and that the assault affected him mentally in such a way that he was not capable of sending the complaints in within the 6-month period. The Respondent did not contest the evidence on this point.

CA-00062617-003: Payment of Wages Complaint:

The Complainant was hired as an plumbing apprentice in Feb 2022. He submits he  left another job and moved back into the  family home to be able to afford the cut in wages that would be appropriate for an apprentice. He  discovered  in February 2023 that he was not registered as an apprentice. The Respondent promised to backdate his  registration with Solas. The Complainant  gave evidence that he was in reality working as a labourer for €220 during that unregistered period  when he should have been receiving a  labourer’s wages. In an unspecified date in July 2023,  he accepts he was registered and received €300 per week net until his resignation in September of that year.  Therefore, he believes the Respondent did not pay him his rightful wage before July 2023.

CA-00062617-007 Penalisation.

The Complainant claims that on an unknown date in May 2023 he was atop a ladder when a pipe  cutter he was holding fell back on his mouth and broke his tooth. He claims that he was  immediately reprimanded by the Respondent and he had to leave work to have the tooth repaired at his own cost.  He believes this was a penalisation under section 27 of the 2005 Act.

CA-00062617-003: Payment of Wages Complaint:

The Respondent accepted that he did not register the Complainant in the designated period at issue but contends that when he did complete the registration, he compensated the Complainant by allowing him credit for the unregistered period through putting him on an advanced point on the apprentice pay scale.  

CA-00062617-007 Penalisation.

The Respondent refutes the evidence of the Complainant, instead claiming that the Complainant was never reprimanded and was paid wages for the time he was out of work when he suffered the injury.

Preliminary Issue:

In deciding the Complainant’s case, I must first establish  whether there is merit in the complainant’s application to extend the time limit for submission of his claims.

Section 41 (1) of the Workplace Relations Act, 2015 provides:

(1)   An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months:

(6) 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…

(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 applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Complainant had three complaints with alleged digressions on different dates, so each will be dealt with separately  to determine whether the there was a causal link between the circumstances described by the Complainant and the lateness of submission of the complaints.

CA-00062617-001 Terms of Employment Preliminary Issue.

It has long been established  that the legislature did not  intend  section 41(6) of the 2015 Act to restrict the limitation period for breaches of section 3 of the 1994 Act when no statement was issued. The Respondent accepted in this case that no written statement had been issued, then I am satisfied that the six-month period for submitting a complaint under the 1994 Act commenced on  18 September 2023 when the Complainant resigned from his employment. The six-month period ceased on 28 March 2024, but the Complainant submitted his complaint to the WRC on 5 April 2024. However, I find that the assault and injury the Complainant suffered in an unrelated incident on 16 January 2024 was  a causal link between the circumstances cited and the delay in submitting the complaint because the assault occurred within the original six-month submission period,  therefore, I find that this complaint is properly before me.

CA-00062617-003: Payment of Wages Complaint Preliminary Issue.

The Complainant in evidence accepted that he did not receive his proper wages until an unspecified date in July 2023 when he was properly registered as an apprentice and thereafter in receipt of the proper wage until his resignation. Because the date of the alleged contravention of the  1991 Act was, according to the Complainant’s evidence February 2023 when he discovered he was not a registered apprentice,  I conclude that the assault on 16 January 2024 was not a causal link that prohibited the Complainant from submitting a complaint within the designated six-month time period because the assault occurred after the cessation of that period.  Therefore, I decide that this complaint was out of time.

CA-00062617-007 Penalisation Preliminary Issue.

The Complainant alleged that there was a reprimand by the Respondent immediately he was injured  on  an unspecified date in May 2023  I conclude that the assault on 16  January 2024 was not a causal link that prohibited the Complainant from submitting a complaint within the designated six-month time period because the assault occurred after the cessation of that period. Therefore, I decide that this complaint was out of time.

CA-00062617-001 Terms of Employment.

Section 3 of the 1994 Act in its relevant parts provides: -

(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—

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

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

….(i) the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours..

Section 3 (1A) of the Act states in its relevant part:

“Without prejudice to subsection (1), an employer shall, not later than 5 days 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:

…(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week..”

Redress in the 1994 Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C  shall do one or more of the following, namely—

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

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

The Respondent accepted in this case that he did not provide a copy of the terms of employment to the Complainant contrary to section 3 of the 1994 Act therefore I find that the complaint was well founded. The only issue to be decided is the appropriate redress. When determining whether compensation should be granted for non-compliance with the provisions outlined in section 3 of the Act, I must be mindful of the practical implications  for the Complainant. The Complainant gave convincing evidence that his status as an apprentice was never officially confirmed for him and that this caused him considerable anxiety and distress, not alone for his training but it also brought  clear uncertainty when it came to his salary. I therefore find that the transgression by the employer was on the serious side of the scale, and I award the Complainant compensation of €1200, which is the equivalent of four weeks net wages.

CA-00062617-001 Terms of Employment.

For the reasons outlined above I find the complaint was well founded and I direct the Respondent to pay the complainant the compensatory sum of €1200.

CA-00062617-003: Payment of Wages

For the reasons outlined above, I find that complaint was out of time.

CA-00062617-007 Penalisation.

For the reasons outlined above, I find that complaint was out of time.

Terms of Employment (information) Act 1994, Payment of Wages Act 1991, Section 27 of the Safety, Health and Welfare at Work Act 2005, Penalisation, Out-of-Time.