Complaints for Investigation by Inspectors
Employees or former employees may, in certain instances, present complaints to the Workplace Relations Commission (WRC) for investigation by an Inspector. For example, where an employee alleges that their employer has failed to pay the employee at least the prescribed National Minimum hourly rate of pay, they may request an inspector to investigate the allegation. This complaint may be made using the Workplace Relations Complaint Form.
Complaints may also be presented for investigation by a WRC Inspector in relation to other alleged contraventions of employment legislation. These include,
- unauthorised deductions from wages/under-payments,
- failure to issue payslips,
- failure to give rest breaks and daily and weekly rest,
- failure to grant annual leave and/or public holiday entitlements,
- allowing employees to work in excess of maximum weekly working hours, and
- failure to provide terms of employment and/or core (Day 5) statement.
The Complaint Form has a section called ‘Resolution Option’ under which the complainant must select the service (viz. WRC Inspector, WRC Adjudicator) by which they wish their complaint(s) to be investigated. In many cases, based on the legislation, only one resolution option is available.
What will an Inspector do on receipt of a Complaint?
The Inspector will review the complaint to ensure that the issues raised come within the jurisdiction of WRC Inspection Services. Sometimes, the specific details presented with the complaint may differ from complaint topic selected. Where the issues are not a matter for Inspection Services, the complainant will be contacted and given information in relation to the available options.
Following review of the complaint and, assuming that the complaint is a matter for investigation by WRC Inspection Services, an Inspector will issue an acknowledgement letter to the complainant, advising that they will be in touch in due course to discuss the details and that an inspection of the employer’s records and other associated enquiries will take place.
Complainants should note that WRC Inspection Services and Inspectors are not aware of, and do not have access to, complaints presented for investigation by WRC Adjudication Officers. Communications issued by an Inspector to Complainants, therefore, only relate to complaints presented for investigation by an Inspector. Separate communications, citing the relevant complaint reference numbers, will issue from WRC Adjudication Services in relation to complaints presented for investigation by an Adjudication Officer.
The Inspector will issue an appointment letter to the employer specifying the date and time of the inspection and the records to be made available. The Inspector will not divulge to the employer, in the appointment letter or otherwise, the reason for, or source of, the inspection. Where the Inspector considers that it would be useful to provide the complainant’s name to the employer, for example, in order to secure specific records, they will always seek the prior consent of the complainant to do so.
Investigation of the Complaint by Inspectors
Further information in relation to the inspection process is available in the Guide to WRC inspections.
It should be noted that the scope of WRC inspections extends to the entitlements of, and records relating to, all employees and not just of complainants. This also ensures that the identity of complainants is protected.
Where contraventions of employment legislation are detected, the Inspector will issue a Contravention Notice to the employer setting out details of the contravention, the grounds for the Inspector’s determination that a contravention has taken place and the actions required by the employer to demonstrate compliance including, where relevant, the payment of any unpaid wages arising from the contraventions. The Inspector will work with the employer to achieve compliance.
The Inspector will keep in regular touch with the complainant to advise of progress under the investigation and discuss any relevant issues that may arise. Such contact may involve the taking of a formal statement from the complainant.
Where employers do not engage with the Inspector, or do not demonstrate compliance, following the issue of the Contravention Notice, the matter may proceed to prosecution proceedings and, depending on the contravention involved, the issue of a Fixed Payment Notice and/or a Compliance Notice. In the Commission’s experience the majority of employers actively cooperate with Inspectors to achieve compliance.
Complainants may be asked to appear as witnesses and to give evidence at prosecution proceedings brought by the Workplace Relations Commission. In some instances, this may be necessary to ensure redress for the complainant.
Redress for Complainants
WRC Inspectors seek the immediate restoration of rights and entitlements and the payment of any associated unpaid wages.
Unlike WRC Adjudication Officers, WRC Inspectors do not have the power to award compensation to complainants for the loss of employment rights entitlements.
Contravention Notices, which are administrative, non-statutory instruments, generally direct employers to cease activities which give rise to such contraventions and/or commence the grant of certain entitlements. For example, where an hourly rate of pay of less than the National Minimum rate of pay is paid, the employer will be directed to commence paying at least the statutory minimum rate, to review its pay and working time records for the 12-month period prior to the date of the inspection and to calculate and pay directly to the relevant employees any unpaid wages due arising from the contravention.
In the case of certain contraventions in the areas of rest breaks, annual leave, public holiday and Sunday work entitlements and payment of wages, Inspectors may issue Compliance Notices where the employer has failed to demonstrate compliance following issue of a Contravention Notice. Compliance Notices, which have statutory effect, direct employers to do or refrain from doing such act or acts by a specified date including the payment of any unpaid wages due arising from contraventions.
Employers may appeal a Compliance Notice to the Labour Court within 42 days of issue. Complainants may be asked to appear as witnesses and to give evidence at such appeal hearings. The Labour Court may affirm the compliance notice, withdraw the compliance notice or issue its own directions to the employer.
Failure to comply with a Compliance Notice is an offence, proceedings for which may be brought by the Workplace Relations Commission.
In the case of certain contraventions in the areas of the National Minimum Wage (failure to issue a statement of the hourly rate of pay), payment of wages (failure to issue payslips, failure to provide a tips and gratuities statement, failure to treat service charges as tips and gratuities and failure to post a tips and gratuities notice), protection of employment (failure to initiate consultations in relation to collective redundancies) and terms of employment (failure to provide a core (‘Day 5’) statement), Inspectors may issue statutory Fixed Payment Notices where the employer has failed to demonstrate compliance following issue of a Contravention Notice. Where payment of the amount prescribed in the Fixed Payment Notice is not made within 42 of issue of the Notice, the Commission will bring prosecution proceedings for the offence involved.
In the case of other contraventions which are not within the scope of Compliance Notices or Fixed Payment Notices, the Workplace Relations Commission may bring prosecution proceedings where the employer has failed to demonstrate compliance following issue of a Contravention Notice. Complainants may be asked to appear as witnesses and to give evidence at such proceedings. Where convictions are secured, Judges will, in general, impose a fine. In certain cases, Judges may also make an order relating to costs.
Anonymous Complaints to Inspection Services
While the preference would be for complainants to present complaints to Inspection Services using the Workplace Relations Complaint Form, the Commission is prepared to accept anonymous complaints. The Commission’s Contact Details or the email email@example.com should be used for this purpose.