ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052510
Parties:
| Complainant | Respondent |
Parties | Eros Santos | Das Vision Limited |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Barry O’Mahoney BL, Martyna Rekosiewicz ARAG Legal Protection |
Complaints:
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-00063726-001 | 27/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00063726-002 | 27/05/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00063726-003 | 27/05/2024 |
Date of Adjudication Hearing: 29/10/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form was submitted on the 27th of May 2024 allowing for a cognisable period running from the 28th of November 2023.
As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
“Wages”, in relation to an employee, means any sum payable to the employee by the employer in connection with the 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 contact of employment or otherwise, and
- (b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice:
In addition to the foregoing the Complainant has brought two additional complaints. The Complainant has referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973. Where the Adjudicator finds that the section was contravened by the Employer in relation to the Employee who presented the complaint, the Adjudication officer can direct that the employer concerned pay to the Employee compensation for any loss sustained by the Employee by reason of the contravention.
The Act requires a minimum period of notice to terminate the employment of an employee who has been employed for a qualifying period.
The referral has been made within six months of the date on which this claim accrued to the Complainant. Where the employee has been in continuous service for a period of more than thirteen weeks and less than two years he or she will be entitled to one week of pay.
The third complaint relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in the evidence provided by the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 27th of May 2024. In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in his preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought. The interpreter was invited to swear an oath/make an affirmation to well and truly interpret. At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the narrative set out in the workplace relations complaint form. There was some additional documentation sent into the WRC in advance of the hearing. For the most part, the Complainant made his case through his own oral evidence. This was translated as required by the Interpreter. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was being underpaid in the amount of €1.00 for each hour that he worked and contrary to the Contractual agreement between himself and his Employer. The Complainant also states that he was summarily dismissed without any regard to his entitlement to be put on Notice. The Complainant accepted that he was paid his annual leave entitlements payment though he says it was paid at a rate below which he was entitled to be paid. I will deal with this last aspect of his Annual Leave claim under the Payment of Wages claim. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. To give evidence, the Respondent entity was represented by the Director of the Company as well as the HR Manager. The Respondent provided me with a written submissions dated October 2024 together with some relevant caselaw. I have heard from the two witnesses who attended. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant. The Respondent rejects that there has been any unlawful deduction of the Complainant’s wages. The Respondent asserts that it has paid all annual leave to which the Complainant was entitled. The Respondent denies that it terminated the Complainant’s employment and asserts that the Complainant terminated his own employment. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced by both sides. The Complainant commenced his employment on or about the 25th of April 2023. He came to the Respondent Bar and Restaurant in Stillorgan with some experience and know how. When he started his employment, the Complainant was on a salary of €15.00 per hour. His then Contract was vague on hours stating they would be variable. The Complainant says that he was working somewhere between 30 and 40 hours a week. It is common case that the Complainant approached his Employer to put money up front to purchase a bicycle. The bike to work scheme aims to encourage employees to cycle to and from work. Under the scheme the employer can buy a bicycle and safety equipment for the employee. This benefit will not be taxable. This approach happened quite quickly after the Employment started as I have had sight of the documentation around the purchase of a bike on the 24th of May 2023. There can be no doubt that it was good of the Employer to up front the purchase price, but equally there is no suggestion that the Employee was going to do anything other than repay the money for the duration of his employment. An understanding was reached regarding modest weekly payments and these were deducted at source. I accept that the Complainant did start to agitate for increased wages. This is normal where the cost of living has been a huge factor across the economy. The Complainant gave evidence that he was only looking for an increase of €1.00 per hour. The Complainant says this was to be implemented in the summer of 2023 though this did not in fact happen. However, the parties did update the terms and conditions of the employment on the 25th of September 2023 and I am absolutely satisfied that the intended rate of pay was to move to €16.00 per hour from the signing of that Contract of Employment on that date. There was evidence in the said Contract of an intention concerning the Complainant being given increased function as a Business Development Manager from the 25th of September. I note that the Contract states that: “You will be required to be flexible in this position and to carry out such tasks as may reasonably be expected of you from time to time.” Neither the Complainant nor the two witnesses for the Respondent seemed able to give me an exact idea of what was intended with this new job title. It is clear that the Complainant certainly continued in the role as heretofore, without the Complainant being specifically tasked to do anything extra. What is also clear is the fact that the Complainant was not getting employed for the 39 hours a week anticipated in the Contract of Employment. There is some suggestion that the complainant might have been sick off and on or not available for other reasons. Again, this was not satisfactorily explained by either side. It is clear that the Complainant did not at any time after the 25th of September get paid at the rate fixed in that Contract of Employment. The Complainant continued to get paid at the rate of €15.00 per hour. The Complainant gave evidence to the effect that as his work Visa was being applied for in and around this time he did not want to do or say anything which might put that process into jeopardy. The situation therefore continued through to the end of the year and into 2024 In and around the 22nd of January 2024 the Complainant had a conversation with the Director of the Company JM. The evidence provided by each party completely contradicted the other. The Complainant says he was let go and the Respondent says that the complainant walked out. I cannot reconcile either account and there is absolutely no corroborating evidence. The issue of whether the Complainant is entitled to be paid in lieu of Notice depends entirely on whose evidence I prefer. The Complainant accepted that he was paid his annual leave entitlements payment though he says it was paid at a rate below which he was entitled to be paid. I will deal with this last aspect of his Annual Leave claim under the Payment of Wages claim. The Workplace Relations Complaint Form herein issued on the 27th of May 2024 meaning that the cognisable period operates from the 28th of November 2023. I note that the Complainant was paid through 8 weeks of payroll from December 1st through to the 19th of January. In that period the Complainant was paid for in excess of 200 hours of work. The Complainant’s case therefore is that the failure to pay him the extra €1.00 per hour as outlined in the Contract of Employment must amount to the non-payment of wages I additionally note that the Complainant had a payment made to him in and around March of 2024 in respect of outstanding Holiday pay accruing to him. This amounted to 96 hours and is calculated (I was advised by JM the Administrator/HR person) on the basis 0f 8% of hours worked. This figure has not been challenged and I therefore accept it is correct. The Employer had deducted the balance of the monies owed on the bike from this Gross payment. This was done without the Complainant’s consent though he has not made any issue of this act. I have taken the time to consider the Respondent’s proposition that the Complainant cannot succeed under the Payment of Wages claim set out as follows: “…….In the current circumstances, there is in effect no valid complaint in being, in that no date of alleged contravention has been specified on the Complaint form which issued on the 27th May 2024, the only dates referred to in the complaint from being May 2023, 23rd June 2023 and 30th June 2023, and the 25th September 2023. Without prejudice to the fact that no particulars of any alleged breach are provide on the dates specified on the form, each of the dates specified are out of time in any event. As such it is submitted that no valid complaint pursuant to the act is evident on the Complaint form. In Moran v The Employment Appeals Tribunal 2014 [IEHC] 154, ….. the complaint made by the employee was summarised at paragraph 5 of the judgement thusly: In his Notice of Complaint to the rights commissioner dated the 17th May 2010, the appellant identified his complaint as one of deduction (rather than non-payment) of wages. The appellant identified the date of deduction as "ongoing since 14/9/2007" and the amount of deduction as "€15,519 from 14.9.07 & ongoing." Keany K held that: “I do not believe that it is necessary or appropriate for the Court to address, much less resolve, the issue of statutory construction presented by the appellant in order to dispose of this appeal. The uncontroverted evidence presented to the rights commissioner, the Tribunal and to the Court establishes that the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17th May 2010. The appellant himself identified the contravention to which his complaint relates as an "application ... for payment of a 5% wage increase awarded by Government to [HSNs] in the [HSE] with effect from 14 September 2007” The Respondent goes on : In the current circumstances the Complainant has similarly failed to adequately present a complaint pursuant to the Payment of Wages Act 1991. In the Complainant form itself, no valid complaint pursuant to the act is made on the 27th May 2024 or at all. The Complainant later provided an email dated the 24th June 2024, this appears to have been accompanied by a document produced by the Complainant specifying what he alleges were the hours he worked, the amount paid to him, the amount he would receive at a rate of €16 per hour, and the difference between the two, he then specifies what he alleges was due to him based on an updated contract, a copy his email and attachment is attached at Appendix 3 which again does not adequately particularise the claim which he is making. Whilst I appreciate that the Respondent might well be frustrated that the Complainant was not as detailed as he might have been in advance of the hearing there is no question but that he has established – through the oral evidence presented before me - a complaint… relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the… Date of the Complaint Form issuing. The WRC is not a forum of formal pleading and more importantly the WRC has an inquisitorial function which allows the Adjudicator to try and bring some semblance of understanding of what the complaints are, and whether they have been appropriately brought. The WRC must at all times be mindful of the fact that not every Complainant who issues a complaint has a complete understanding of the legislation. In this instance, the Complainant has exercised his right to make a complaint against a former Employer. As it happens it was brought quite late in the day leaving the Complainant with about 8 weeks of cognisable period. It is therefore appropriate to consider the three complaints made in the context of that time span. |
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints made in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00063726-001 – The Complaint herein is well- founded and I direct the Employer to pay compensation to the Employee in the amount of €325.00 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00063726-002 - This complaint has not been proven by the Complainant and is therefore not well founded. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00063726-003 – This complaint is not well founded.
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Dated: 15th of January 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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