Complainant

Respondent

Parties

Emre Yilgen

Transmc Logistics Limited

Representatives

Eimear Gavin North Dublin Citizens Information Service

 No show

Act

Complaint Reference No.

Date of Receipt

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

CA-00054482-001

13/01/2023

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

CA-00054482-002

13/01/2023

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

CA-00054482-004

13/01/2023

The registered business address of the Respondent is:

78 STONEBRIDGE PARK, ROCHFORTBRIDGE, CO. WESTMEATH, N91 EH57, WESTMEATH, WESTMEATH, N91 EH57, IRELAND

Notification of the hearing was sent to the Respondent at this address.

The Respondent failed to attend.

I am satisfied that all reasonable efforts have been made to notify the Respondent of the hearing including notification at an address where the business is now trading; however, that is not the registered address.

The case involves a claim for non-payment of wages. The Complainant had a valid work visa.

The Complainant commenced as a delivery assistant with the Respondent on a part-time basis on the 21st of July 2022.

The Respondent operates a delivery service for furniture retailers, transporting goods that have been ordered from the retailers to their customers.

The Complainant was asked by the driver of the van to work with him. The Driver gave evidence that he was asked by the Respondent to find an assistant to help him with deliveries.

He was promised a flat rate of €110 per day.

The Complainant attended at the Respondent’s premises with the Driver on the 21st of July 2022, where he was met by a supervisor. The supervisor gave him a high visibility vest and a pair of gloves. And he was told he could start that day.

The Complainant stated that he worked for 15 days for the Respondent and his last day of work was the 20th of August 2022.

The Respondent failed to attend at the hearing, and I am satisfied that they were properly notified of the date, time and place of the hearing.

The Complaint was lodged with the Commission on the 13th of January 2023.

The Complainant produced records such as time sheets to corroborate the 15 days worked.

The Complainant received no payment from the Respondent.

The Respondent unlawfully withheld €1650 gross wages based on a daily gross rate of €110.

The Claimant stated that he worked 98 hours during the period of his employment. Based on section 19(1) of the Act:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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 concerned and 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.

Using the 8% method the Complainant accrued 7.9 hours leave. As the Daily rate was €110 per day I determine that he is owed 1 day in outstanding holiday pay amount to €110.

The Complainant stated that he never received any written terms of employment. His period of employment was 24th of July 2022 to 20th of August 2022.

 Pursuant to  section 2 of the Terms of Employment (Information) Act, 1994 there are exclusions relating to continuous service:

Exclusions.

2.—(1) This Act, other than section 3(1A), shall not apply to employment in which the employee has been in the continuous service of the employer for less than 4 consecutive weeks.

The Complainant worked for about a month.

During this period the employee worked 15 days. The actual hours worked varied and was based on need.

The Terms of Employment (Information) Act does not explicitly define what is meant by continuous.

On the facts the Complainant’s work appears to be casual in nature. The European Foundation for the Improvement of Living and Working Conditions (Eurofound) , [A tripartite European Union Agency established in 1975, its role is to provide knowledge in the area of social, employment and work-related policies according to Regulation (EU) 2019/127], defines causal in Eurofound (2019), Casual work: Characteristics and implications, New forms of employment series, Publications Office of the European Union, Luxembourg:

Introduction Casual work is characterised by the absence of a stable and continuous employment relationship; according to the European Parliament it can be defined as ‘irregular or intermittent, with no expectation of continuous employment’, with the potential for irregular and unpredictable working hours or schedules. Eurofound proposed in 2015 a definition of casual work that distinguishes two forms: ‘intermittent’ and ‘on-call’ work. Intermittent work is more prevalent in Czechia, France and Romania, while on-call work is more prevalent in the Netherlands and the UK. Both forms are present in Germany and Italy. In some countries (Italy, the Netherlands and Poland), casual work includes other types of contracts and self-employment relationships

On the facts this employment is not continuous rather it is casual. However, section 3(1 A) does apply:

(1A) 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:

(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 2014);

(c) 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;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(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;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) F9[are treated,]

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

This requirement was not complied with.

Section 7 of the Act provides for:

(d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  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

I have determined that the Respondent is in breach of section 3 of Terms of Employment (Information) Act, and I order the Respondent to pay the Complainant €1000 compensation for this breach.

Payment of Wages CA-00054692-001: The complaint is well founded. The Complaint was lodged with the Commission on the 25th of January 2023.

The Complainant produced records such as time sheets to corroborate the 15 days worked and the agreed rate of pay.

The Complainant received no payment from the Respondent.

The Respondent unlawfully withheld €1650 gross wages based on a daily gross rate of €110.

The Payment of Wages Act 1991 as amended provided for:

[6. (1) 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 4C  as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

I direct the Respondent to pay the Complainant €1650 compensation less any statutory deductions.

Holiday Pay CA-00054692-002: I have determined that the Complaint is well founded. The Claimant stated that he worked 98 hours during the period of his employment. Based on section 19(1) of the Act:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(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 concerned and 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.

Using the 8% method the Complainant accrued 7.9 hours leave. As the Daily rate was €110 per day I determine that he is owed 1 day in outstanding holiday pay amount to €110.

And section 27(3) states:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision 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,

(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.

The complaint is well founded, and I order the Employer to pay the Complainant €150 in total compensation which includes payment for the 1-day annual leave entitlement.

Information about Terms of Employment CA-00054692-003: The complaint is well founded. I have determined that the Respondent is in breach of section 3 of Terms of Employment (Information) Act, and I order the Respondent to pay the Complainant €1000 compensation for this breach.

Payment of Wages- No Information about Terms- Payment for Holidays-Casual Work