Complainant

Respondent

Parties

Joshua  Daly

Lynch Gilligan

Complainant

Respondent

Anonymised Parties

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Representatives

Andrew Turner Hamilton Turner Solicitors

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00058413-001

22/08/2023

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

CA-00058413-002

22/08/2023

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

CA-00058413-003

22/08/2023

The Complainant commenced his employment with the Respondent on 1 March 2023. He stated that he was not paid the correct rate of pay and that the Respondent did not pay his pension contributions. He also stated that he did not receive his outstanding holiday pay after his employment ended on 28 May 2023.

The Complainant commenced his employment with the Respondent on 1 March 2023 but stated that the Respondent did not register him as an apprentice plumber as he had been promised. He further stated that he was not paid the correct rate of pay in accordance with the Sectoral Employment Order (SEO) (Construction Sector) as outlined in SI 234 of 2019 and SI 598 of 2021. Specifically, as the Respondent did not register him as an apprentice plumber, he should have been paid the Category B rate of pay as he had previously worked for over 2 years in the industry. He also stated that the Respondent did not pay either his pension contributions in line with the SEO or his outstanding holiday pay when his employment ended on 28 May 2023.

The Respondent’s witness accepted that they did not pay the Complainant either his correct rate of pay in line with the SEO or the required pension contributions. He stated that this was because the Complainant was on a three-month "trial" and that it was the norm not to register an apprentice until they had seen how they performed. He did not dispute that the Complainant did not receive his outstanding holiday pay.

CA-00058413-001:

I note firstly that the Complainant was not registered as an apprentice by the Respondent and should therefore not have been paid as an apprentice.

I further note that the work which the Complainant did when employed by the Respondent was that of a Category B worker as defined in both the Sectoral Employment Order (Construction Sector) of 2019 as well as the Sectoral Employment Order (Construction Sector) of 2021 and that each of these Sectoral Employment Orders applied successively to the Complainant’s employment.

I therefore find that this complaint is well founded.

CA-00058413-002:

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”.

It was not disputed the Respondent failed to make pension contributions on behalf of the Complainant as required by the Sectoral Employment Order (Construction Sector) of 2019 as well as the Sectoral Employment Order (Construction Sector) of 2021.  I therefore find that this complaint is well founded.

CA-00058413-003:

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:

As it was not disputed that the Complainant did not receive his outstanding annual leave entitlements when his employment ended, I find that this complaint is well founded.

CA-00058413-001:

Section 23 of the Industrial Relations (Amendment) Act 2015 provides (where relevant) as follows:

“(1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

…(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies 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 provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977...”

Given that the employment relationship has ceased, I find an award of compensation to be the most appropriate means of just and equitable redress. 

In the first instance, I make an award of compensation in the amount of €5,108.53 in respect of the shortfall of wages that were payable to the Complainant over his period of employment with the Respondent. This award is subject to taxation and the normal statutory deductions.

In addition to this sum, I make a further award to the Complainant of non-remuneration related compensation for the inconvenience which he suffered arising from the breach of his rights under the relevant legislation in the sum of €2,500 which said sum shall not be liable to tax pursuant to Section 192A of the Taxes Consolidation Act 1997 as inserted by the Finance Act 2004.

CA-00058413-002:

I have found that this complaint is well founded for the reasons set out above and make an award of €343.80 in respect of this complaint. This is subject to taxation and the normal statutory deductions,

CA-00058413-003:

I have found that this complaint is well founded and make an award of €750 for the unpaid annual leave, which also incorporates a compensation component in accordance with section 27(3) of the Act.