PWD2226

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

FIRST UP SLU T/A MASTER STONEMASONS
(REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION)

- AND -

MR ANDRZEJ KULA
(REPRESENTED BY CONNECT TRADE UNION)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No.ADJ-00029658 CA-00039424-002

BACKGROUND:

2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 4 May 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION :

This is an appeal by Mr Andrzej Kula, represented by Connect Trade Union, against a Decision of an Adjudication Officer (ADJ-00029658 CA-00039424-003) under the Payment of Wages Act 1991 (the 1991 Act), dated 26 July 2021, against his employer First Up Slu. It is linked with decision number PWD2227.

The Adjudication Officer found that Mr Kula’s complaint was not well founded. Mr Kula lodged an appeal to the Labour Court on 31 August 2021 and a hearing of the Labour Court was held on 4 May 2022.

In this Determination the parties are referred to as they were at first instance. Hence, Mr Kula is referred to as” the Complainant” and First Up Slu is referred to as “the Respondent”.

Position of Complainant

The Complainant gave evidence to the Court and submitted that he was not paid in accordance with the terms of the Construction Sector Sectoral Employment Order. He contends that he was paid an incorrect rate of pay of €16.90 per hour up until January 2021.From 01 October 2019 to 01 October 2020 the hourly rate of pay for a Category B worker, as per the terms of the Construction Sectoral Employment Order (SEO), was €17.50 per hour. The hourly rate increased to €17.97 thereafter. The Complainant only became aware of the SEO statutory rate of pay in March 2021 upon his return from temporary layoff.

The Complainant submits that he suffered a shortfall in wages of €1,993.92.During the hearing, the Complainant requested an interpreter to translate one question asked by a Member of the Court. That question was withdrawn, and the Complainant confirmed to the Court that he had understood all other matters that had arisen in the proceedings.

Position of Respondent

The Respondent submits that the Complainant was correctly paid for hours worked in accordance with terms set down in the SEO. The complainant submitted his hours on a weekly timesheet, and he was paid the correct hourly rate of pay as evidenced by his pay slips.

The claimant submitted this claim outside the six-month timeframe permitted by section 41(6) of the Workplace Relations Act 2015. Based on the case law cited, simply not being aware of one’s legal entitlements is not a justifiable excuse for failing to bring a claim in time.

The Applicable Law

(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.

(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.

Determination Section 5(6)(a) of the 1991 Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.

As the within complaint was lodged to the Workplace Relations Commission on 28 August 2020, the relevant period for consideration by the Court is 29 February 2020 to 28 August 2020.

In evidence the Complainant confirmed to the Court that he submitted timesheets for the hours that he worked. The Respondent submitted that the Complainant was paid for the hours that he physically worked, in accordance with the timesheets that he submitted, and that he was paid at the correct SEO hourly rate.

Payslips relating to the cognisable period for the within complaint were submitted to the Court in evidence. Having reviewed those payslips the Court is satisfied that the Complainant was paid at the correct statutory rate of pay for the period for the hours cited.

As a result, the Court must find that the complaint is not well founded.

The Decision of the Adjudication Officer is upheld. The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
OC	______________________
26 May 2022	Deputy Chairman