Complainant

Respondent

Parties

Innocent  Ochei

Scl Sales Limited

Representatives

Sean O'Reilly

Laura Graham Reddy Charlton, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052287-001

17/08/2022

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

CA-00052287-002

17/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The first hearing had to be adjourned due to a degrading internet connection, the second was adjourned as the Adjudicator was not satisfied that the respondent was properly on notice of the hearing. The hearing proceeded to completion on the final hearing date.

The complainant gave his evidence under oath while a witness for the respondent, the Head of Operations, gave her evidence under affirmation.

CA-00052287-001 Pay

The complainant submitted that his employer contravened the Payment of Wages Act when it did not pay him appropriately.  He submitted that the amount of the shortfall was €644.12

CA-00052287-002 Notice period

The complainant submitted that he did not receive his statutory minimum period of notice

Complainant’s evidence:

The complainant stated that he was not paid the full amount of his wages following his first month of employment with the company. He submitted that there was a shortfall of €644.12. He stated that this was demonstrated by the supported documentation including his pay slips bank records.

In relation to the minimum notice complaint, the witness stated that he was placed on short term lay off for a number of weeks and upon return was only given the option of coming back as a self-employed subcontractor. He was adamant that this was the only choice offered to him. Under cross examination he confirmed that he asked for letters from his employer to assist him in applying for his social welfare entitlements. He confirmed that he sought and received a letter of reference in July 2022.

CA-00052287-001 Pay

The respondent submitted that the complainant was paid appropriately and referred to the pay slips and financial transactions documentation of the company and also to the bank account details of the complainant query and it showed that the amounts were paid to him.

CA-00052287-002 Notice period

The respondent submitted that the complainant was offered a choice of either returning to work as per his contract of employment or becoming a self-employed subcontractor. He chose neither and by seeking a letter of reference confirmed he was not returning to the company.

The representative for the company confirmed that their witness is not in a position to give rebuttal evidence but was only in a position to outline the procedures that were being followed by the company at the time.

Witness testimony:

The witness confirmed that she was the Head of Operations for the respondent.  She stated that at the time in question the complainant and old other employees would have been offered a choice for turning to work for the company on the basis of their old contracts or returning as a self-employed subcontractor. There was no cross examination.

The witness confirmed that the complainant worked a 37.5 hour week and received an hourly rate of €13.36

CA-00052287-001 Pay

Both the complainant and the respondent relied on pay slips and the complainants bank account records to put forward their account of what transpired. The respondent also submitted a record of the electronic fund transfers made to the complainant over the period.

From the documentation and oral evidence of the witnesses it is obvious that the respondent issued monthly pay slips but paid staff on a fortnightly basis, the monthly amount being divided into two unequal parts. Both the complainant and the witness for the respondent confirmed that this is the case. Having regard to the documents I am satisfied that the respondent has paid the complainant the salary due to him.  Arising from the foregoing I find that the act has not been contravened.

CA-00052287-002 Notice period

The complainant gave evidence that following a short period of layoff he was offered the chance to return to the company as a self-employed subcontractor. He confirmed this under cross examination. The respondent was not in a position to give evidence from the person with whom the complainant has been dealing directly. Instead, the head of operations gave evidence of her understanding of what was generally happening at that time. She understood that employees were given the chance to return either under their existing contract of employment or as a subcontractor. She was not in a position to directly contradict the complainant’s evidence.

In the circumstances, the only first-hand account of what transpired was given by the complainant. I note that he sought a reference from the employer, but I also note that it was in circumstances where he had been given no option but to leave the company and become a self-employed subcontractor. On the basis of the evidence presented to me I prefer the complainant’s version of events and I find that the I respondent did not pay the complainant a minimum notice period of one week to which he was entitled under the legislation.  Accordingly, I find that the Act was contravened and direct that the employer pays the complainant compensation equal to one week’s salary. One week’s salary is €501, being 37.5 hours at a rate of €13.36 per hour.

CA-00052287-001 Pay

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the Act has not been contravened.

CA-00052287-002 Notice period

Having regard to all the written and oral evidence presented to me in relation to this complaint, my decision is that the Act was contravened, and I direct the employer to pay compensation of €501 to the complainant for the loss he sustained.

Payment of Wages Act – not contravened – Minimum notice – contravention – direction to pay compensation