ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011528
Parties:
| Complainant | Respondent |
Anonymised Parties | Welder | Plumbing and heating contractor |
Representatives | Self | No attendance |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00015398-002 | 27/10/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00015398-003 | 27/10/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00015398-004 | 27/10/2017 |
Date of Adjudication Hearing:19/04/2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant’s case is that he commenced working for the Respondent on the 7th of August 2017.
He was working as a welder on a public private partnership for a court house.
His employment ended on the 6th October 2017. |
Summary of Complainant’s Case:
The Complainant’s evidence was that he made it very clear to the Respondent that he was not a sub-contractor and he did not want to be employed as a sub-contractor. He understood the difference between the status of employee and self employed contractor.
The Respondent said he could start work after the August bank holiday weekend which he did.
The Complainant provided no equipment for his work apart from his own mask, safety jacket and boots. All the equipment required to carry out his task as a welder such as the welding machine and the electrodes were provided by the Respondent.
The Complainant had no insurance and was not registered with Revenue as self-employed.
The Complainant notified Revenue that he had commenced employment as an employee with the Respondent and had provided the Respondent’s employer number and allocated a portion of his tax credits towards that employment.
The Complainant provided at the hearing a copy of his tax credit and Universal Social Charge certificate showing the allocation of his tax credits and USC with the Respondent.
The Complainant gave evidence that when he was negotiating with the Respondent as regards his salary he agreed to work for €20.00 per hour for a probationary period and thereafter revert to the Labour Court pay rates of €22.50 per hour. The Complainant was a category three worker (he was qualified for more than six years).
After one month, the Complainant raised with the Respondent about the increase in pay due to him and the Respondent “laughed it off” and ignored him.
Later that month (September 2017) the Complainant brought his tax credit statement to the Respondent and queried as to what tax the Respondent was paying as the Complainant did not receive any payslips.
At that stage the Respondent claimed that he didn’t know anything about tax credits or tax.
The Complainant asked on numerous occasions for payslips. His evidence was that the Respondent avoided answering his queries on all occasions.
The Complainant contacted Unite Union and a union representative spoke with the Respondent following same.
The Complainant’s evidence was that the Respondent was not at all happy that the Complainant took the step of engaging with his union and his employment was terminated immediately.
The Complainant’s further evidence was that he did not receive a P45 and no response to correspondence that he sent to the Respondent seeking outstanding wages and annual leave. |
Summary of Respondent’s Case:
There was no attendance for the Respondent |
Findings and Conclusions:
Regarding complaint CA/00015398/002 this complaint was in relation to failure to receive a statement in writing of terms of employment. I am satisfied that the Complainant was an employee of the Respondent. He should have received his terms and conditions of employment in writing within two months of commencement of employment as per Section 3 of the Terms of Employment (Information) Act 1994.
Regarding Complaint CA/00015398/003. Having heard the Complainant’s uncontested evidence with regard to annual leave /holiday pay, I accept that the Complainant was an employee of the Respondent and was entitled to holiday pay calculated in accordance with the Organisation of Working Time Act 1997. I have calculated this at 8% of the hours worked. On the Complainant’s evidence, he stated he has worked 360 hours. 8% of this amounts to 28.8 hours.
Regarding Complaint CA/00015398/004 the Complainant’s case was that he was due €900.00 from a shortfall of wages over the period of his employment. The Complainant submitted that he was paid €20.00 per hour and the shortfall was €2.50 per hour over the 360 hours worked. I accept this evidence.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Regarding complaint CA/00015398/002 this complaint was in relation to failure to receive a statement in writing of terms of employment. I find that the complaint is well founded. I award the Complainant the sum of €2,500.00 as compensation in accordance with Section 7 of the Terms of Employment (Information) Act 1994. This payment is compensation and is not subject to income tax.
Regarding Complaint CA/00015398/003. I find the complaint well founded. For the correct rate of pay the Complainant was to receive, namely €22.50 per hour, I award the Complainant the sum of €648.00. This payment is gross and taxable as wages in the normal manner.
Regarding Complaint CA/00015398/004, on the Complainant’s uncontested evidence I accept this claim is well founded and I award the Complainant the sum of €900.00 as a gross payment for arrears of wages which is taxable in the normal manner. |
Dated: 1st August, 2018
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
No terms and conditions of employment, correct hourly rate of pay, annual leave |