Complainant

Respondent

Parties

Zhihua  Yuan

Heatec Plumbing Contractors Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057977-002

29/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under payment of wages Act, 1991-2017

CA-00057977-003

29/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under unfair dismissal Act, 1977-2020

CA-00057977-004

29/07/2023

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

CA-00058067-001

03/08/2023

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

CA-00058067-002

03/08/2023

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

CA-00058067-003

03/08/2023

The Complainant submitted two Complaint Forms which were received by the WRC on 29/7/2023 and 3/8/2023 respectively.

In the course of his Complaint Forms and/or submissions the Complainant referred to having been dismissed by the Respondent and to not having been paid his full wages. Accordingly, I allowed these two additional complaints pursuant to the Payment of Wages Act [1991-2017] and the Unfair Dismissals Act [1977-2020]. 

The Complainant outlined the background including his training as a plumber, the details of his obtaining a work permit, the financial expense involved and his dealings with an agent. The Complainant also outlined his difficulties with another company prior to commencing his employment with the Respondent and he stated this other company arranged for him to work for the Respondent.

The Complainant commenced employment with the Respondent on 21/2/2023 and his employment ended on 19/5/2023.

The Complainant stated he was dismissed from his employment by the Respondent. In that regard he referred to the letter dated 17/5/2023 signed by the Respondent’s Director which terminated his employment with immediate effect although he was paid until 19/5/2023. The Complainant stated he was not given any prior notice of his dismissal nor any notice pay.  

The Complainant stated he was not provided with an employment contract nor had he signed any. He also raised issues about his work permit for the Respondent. The Complainant stated that he was not notified in writing of a change to his terms of employment.

The Complainant stated that he did not receive the terms and conditions laid down by a Sectoral Employment Order (SEO).

The Complainant stated that the Respondent withheld his wages and did not pay taxes on his behalf nor issue him with payslips. He stated there were missing tax records. He also stated that after he complained to the WRC “the company paid my taxes to the tax authorities” and that he found his tax records.

It is the position of the Complainant that he was treated most unfairly by the Respondent, that he is owed significant wages and should be paid compensation.

The Respondent stated that the Complainant was on a six month probationary period but did not satisfactorily complete this as the standard of his work and “skillman-ship” was not adequate or in line with what was expected in the trade. The Respondent stated that as a result the Complainant was let go.

In relation to notice, the Respondent stated that the Complainant was not entitled to any as he was employed for a maximum period of twelve weeks and three days – ie from 21/2/2023 – 19/5/2023 – ie his last pay date. The Respondent stated the Complainant had less than thirteen weeks continuous service as required by the Minimum Notice and Terms of Employment Act [1973-2017].

The Respondent stated that it did not sign an employment contract with the Complainant and its Director stated that he thought he had longer to put one in place. The Respondent stated the Complainant was on probation and that its employees terms and conditions and HR documentation were available on its self service app although under questioning it accepted the Complainant may not have accessed its app.

The Respondent stated that it agreed an hourly rate with the Complainant’s agent of €18.50/hour for 39 hours/week. The Respondent stated that notwithstanding its efforts, the Complainant did not provide a PPSN number until July 2023 and as a consequence no information was sent to Revenue. The Respondent stated that the Complainant’s nett pay was affected due to the non-availability of the PPSN but that pending receipt of the PPSN, it paid the Complainant €500/week thereby easing his financial situation as regards emergency tax. In the course of the adjudication hearing the Respondent stated that it would pay all outstanding monies owed to the Complainant which it calculated to be a total of  €3357.64.

It is the position of the Respondent that the Complainant was treated fairly throughout his employment and that it had no alternative but to let him go in light of the standard of his work. The Respondent strongly rejected the Complainant’s assertions that it was trying to avoid paying tax and  

it stated the tax situation and payslips are now rectified and that its payroll went online from April 2023 with full access for its employees.

Having considered all the evidence, submissions and documentation – including documentation received post hearing - the following are my findings and conclusions:

1. CA-00057977-002

Section 4 of the Minimum Notice and Terms of Employment Act [1973-2017] provides as follows:

“4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section…..”

There is no dispute between the parties that the Complainant was employed from 21/2/203 – 19/5/2023 which I am satisfied constituted a total length of time of twelve weeks and three days. Accordingly, I find the Complainant was not entitled to a minimum period of notice or notice pay.

2. CA-00058067-001

Section 3 of the Terms of Employment (Information Act) [1994-2020] and the Employment (Miscellaneous Provisions) Act 2018 apply in relation to providing an employee with details of his/her terms and conditions of employment. Section 3 of the Act sets out the terms which should be included in a statement to be furnished to the employee within 2 months of his starting work. These include:

·        The full names of the employer and employee

·        The address of the employer

·        The expected duration of the contract (if the contract is temporary or fixed-term)

·        The rate or method of calculating your pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)

·        What the employer reasonably expects the normal length of your working day and week to be (for example, 8 hours a day, 5 days a week)

·        The place of work

·        The job title or nature of the work (such as a brief job description)

·        The date the employment started

·        Pay intervals (for example, weekly or monthly)

·        Any terms or conditions relating to hours of work (such as overtime)

·        Paid leave, including your annual leave and public holiday entitlements

·        Sick pay

·        Pension and pension schemes

·        Period of notice to be given by employer or employee

·        Details of any collective agreements that may affect your terms of employment.

From the evidence I am satisfied the Complainant was not provided with a written contract of employment as set out and required  by Section 3 of the Act.

3. CA-00058067-002

Section 5 of the Terms of Employment (Information Act) [1994-2020] states as follows:

“5.- (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter…..”

From the evidence and submissions,  I am satisfied the Complainant has not/not adequately made out or particularised any complaint with regard to a change to his terms of employment or a purported contravention of Section 5 of the Act.

4. CA-00058067-003

The Complainant stated that he did not receive the terms and conditions laid down by a Sectoral Employment Order (SEO). From the evidence and submissions,  I am satisfied the Complainant has not/not adequately made out or particularised any complaint with regard to the application of any SEO or any purported contravention of the Industrial Relations (Amendment) Act, 2015.

5. Payment of Wages Act [1991-2017]

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as

(a) “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise, and

(b) any sum payable to the employee upon….termination….;

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages:

1)     “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

a.      the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

b.      the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

c.      in the case of a deduction, the employee has given his prior consent in writing to it.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid, as follows:

             “5(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

From the evidence and submissions including my consideration of the payslips, I am satisfied the Complainant was paid his correct gross hourly rate of pay. This was accepted by the Complainant in the course of the adjudication hearing that he was paid his grossly weekly sum of €721.50. I am satisfied therefore that the Complainant’s concerns related to his nett pay. Having considered this matter, I accept the position of the Respondent that it was seeking the Complainant’s PPSN in order to rectify the situation. In the circumstances I do not see that an award of compensation is warranted.

The Respondent stated in the course of the adjudication hearing that it would reconcile all monies owed to the Complainant and it identified a total amount owing of €3357.64 which amount was not disputed by the Complainant.  Post hearing I was furnished with copy of a letter from the Respondent dated 15/11/2023 stating that the amount of €3,457.64 was paid to the Complainant being the €3,3357.64 that was owing and an additional €100 which the Respondent stated it paid “in good faith”. In an email to the WRC of 4/12/2023 the Complainant wrote that “My wages have been fully paid and I have also received an additional 100 euros”.

6.      Unfair Dismissals Act [1977-2020]

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 2 of the Unfair Dismissals Act [1977-2017] sets out the following exclusions:

“2.—(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a)   an employee……who is dismissed, who, at the date of his dismissal, had less thanone year’s continuous service with the employer who dismissed him…..”

As the Complainant was employed by the Respondent from 21/2/2023 to 19/5/2023 – his service was less than one year. Accordingly, I do not have jurisdiction to consider or determine a complaint pursuant to the Unfair Dismissals Act [1977-2017].

CA-00057977-002

For the reasons outlined this complaint is not well founded.

CA-00058067-001

For the reasons outlined this complaint is well founded and I hereby award the Complainant 3 weeks paid remuneration @ €721.50/week subject to such statutory deduction as may apply.

CA-00058067-002

For the reasons outlined this complaint is not well founded.

CA-00058067-003

For the reasons outlined this complaint is not well founded.

CA-00057977-003

Payment of Wages Act [1991-2017]

This complaint is settled as the Complainant confirmed post hearing on 4/12/2023 that his wages have been fully paid.

CA-00057977-004

Unfair Dismissals Act [1977-2020]

For the reasons outlined this complaint is not well founded.

Dismissal, Minimum Notice, Statement of Terms of Employment, Payment of Wages