ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049789

Parties:

Complaint:

Date of Adjudication Hearing:  01/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and section 24 of the National Minimum Wage Act 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was penalised for having sought his entitlement to minimum wage.

Summary of Complainant’s Case:

The Complainant made written and oral submissions, summarised in his own words as follows:

I was paid 10.00 an hour with the legal minimum being 12.70 and my understanding of the sector and being a new coming labourer was 15.00 an hour. I referenced the calls leading up to employment start date as the first conversation had been there regarding wages. M understood that I was new to the industry and so said its best that my rate was 10.00 per hour. He had however agreed to raise this in due course of starting dependant on work etc. Yet this was never the case. Several times throughout the job I had asked m and to no avail, he would always promise the following month would hold a conversation. On Monday October 23rd I messaged m to try resolve the majority of issues that we are here for and to no avail. I was finally responded to not with a message returned but a phone call. On this phone call I stood my ground about the matters and m failed to take any accountability for anything really. He had emphasised on existing company and site related issues that were in no way related to me. He had seemed emotional as though he was trying to belittle me in to understanding claiming he was losing more money than he was making and that he didn’t know if the company was worth running anymore. He rarely spoke on the topic of my pay rather the fear of losing his own money.

M requested I work in Donegal for 2 days to which I agreed with no issue as money was needed. Shortly after and to this day I have not received any compensation for the 9 hours travelling for that work only my normal rate of 10.00 an hour for work completed once in Donegal.

As December began m instructed a fellow employee to tell me that “there was no work available” and that id to lay idle until further notice. This led to me terminating my employment on December 12th in order to be eligible to apply for financial support from the dept of social protection in order to feed myself, bearing in mind that the personal situation from my personal statement was known by m. This led to an unfortunately sad Christmas between my partner and I, continually stressing over food and bills. M had never contacted me to tell me himself nor apologise for the inconvenience if genuine however I had onlooked as other employees continued and complained that there was work and they were stressed about the amount of them available for the work in front of them and the long unaccounted travel that mark would often request. This was my grounds for unfair dismissal and penalisation, it came following legal advice as it seemed like m was trying to push me out of the company by making it not a viable option. I felt as though on the 12th of December I had to leave and seek social welfare or face being homeless for Christmas.

The Complainant stated that he sought minimum wage on a number of occasions.  He spoke to the Employer in early July 2023, he texted him in October 2023 (screenshot supplied), where he referred to the possibility of going to the WRC, and he wrote a letter to him in January 2024. 

Summary of Respondent’s Case:

The Respondent gave sworn evidence summarised as follows:

He took on the Complainant for a Summer job on the recommendation of one of the Apprentices.  He paid him more than the first year Apprentice rate.  He employs 4 employees, 2 Apprentices and 2 Electricians.  All now have written contracts in place.  The WRC Inspectorate is dealing with the firm.  He stated that in the 27 weeks of employment with him, the Complainant was absent due to various reasons.  He was paid sick leave and holidays to the amount of in or around 5 weeks during the period.  In relation to the claim for higher pay, the Complainant was taken on as a Labourer/Electrician’s mate.  The job the Complainant was on was coming to an end in November and work was drying up.  He tried to get other work to keep the Complainant in employment, but this proved not possible.  As well as the work coming to an end, the Respondent had many problems to attend to on a site in Dublin.  He did speak to the Complainant towards the end of the job, but he accepts he could have handled it better.  When the work dried up there was no option but to let him go.  He did not penalise the Complainant, the work was not there to keep him on.  The firm has a small number of employees, comprising 2nd and 4th year Apprentices and 2 Electricians. The Complainant was not replaced when he left in December 2023.

Findings and Conclusions:

Section 36 of the National Minimum Wage Act 2000 provides:

“36 – (1) An employer shall not cause or suffer any action prejudicial to an employee for the employee having –

• (a) Exercised or having proposed to exercise a right under this Act…

The Complainant in this case indicated his dissatisfaction with his rate of pay and other matters, verbally and by text and letter.  I accept the Employer’s evidence that the work in which the Complainant was engaged was coming to an end and he did not replace him when he left in December 2023.  While there is no doubt the Complainant was not dealt with very fairly by the Employer, and was not given his basic entitlement to statutory minimum wage, I find that the Complainant was not dismissed or penalised for exercising his right or having proposed to exercise his right under the National Minimum Wage Act.    I find the complaint to be not well founded.   

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

 I have decided the complaint is not well founded.

Dated:   26-06-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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