ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013396
Parties:
| Complainant | Respondent |
Anonymised Parties | An office manager | A mechanical, plumbing and electrical services company |
Representatives |
| Greg Winters, Gartlan Winters Solicitors |
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-00017602-002 | 22/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00017602-003 | 22/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00017602-004 | 22/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00017602-005 | 22/02/2018 |
Date of Adjudication Hearing: 31/05/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969, these complaints were assigned to me by the Director General. I conducted a hearing on May 31st 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant attended the hearing without representation and was not accompanied. For the respondent, a director phoned on the morning of the hearing and said that she could not attend as she had to accompany her son to a hospital appointment. No other person attended to represent the respondent, although it appears from correspondence received on the morning of the hearing that they had a firm of solicitors, Gartlan Winters, on notice.
Background:
The respondent company was registered as a business on September 13th 2017. As far as he is aware, the complainant was the only employee when he joined on October 10th 2017 as office manager. By the time he left on December 8th that year, there were no other employees. His complaint is that he did not receive the pay and terms he was offered when he accepted the job. He also complains that he didn’t receive a contract of employment and, on the termination of his employment, he didn’t receive his outstanding holiday pay. He had no option but to leave because he wasn’t being paid the salary he was offered and which he accepted. He didn’t receive any payslips and his job was not registered by his employer for tax and PRSI. As he has less than 12 months’ service, he is making a case for constructive dismissal under section 13 of the Industrial Relations Act 1969. |
CA-0001760-2: Complaint under Section 6 of the Payment of Wages Act 1991
Summary of Complainant’s Case:
The respondent company is a provider of plumbing and electrical services and the complainant met one of the directors when the hotel where he was the assistant manager was being refurbished. The director was contracted to carry out the plumbing. He said that he was persuaded to take the job as the director seemed very genuine and made him a good offer. He was to be paid an annual salary of €65,000, a bonus of €5,000 at year-end, a paid fuel card and his mobile phone expenses. The complainant was employed by the company for nine weeks. For eight of these weeks, he received €500 into his bank account from the personal account of the director who recruited him. From his enquiries with the Revenue Commissioners, deductions for tax, PRSI and USC have not been submitted to Revenue in respect of his employment. While he was in the employment of the respondent, the complainant said that he negotiated a contract for them worth in the region of €30,000. He said that, to his knowledge, they never followed up on this contract and did not carry out the work for the prospective client. One of the terms of the complainant’s employment that he accepted at the time of his recruitment was that the cost of his driving was to be covered by the provision of a fuel card. In his evidence at the hearing, the complainant said that he spent €900 on fuel during the time he was employed. His phone bill was also to be paid for and the cost of this during his employment was €192. When he finished on December 8th, the complainant said that an agreement was reached between him and the directors that he would be paid his outstanding wages on a weekly basis up to January 19th 2018 and the money due in respect of fuel and his mobile phone was to be paid by February 9th. None of this was paid. At the hearing, the complainant said that he spoke to the two directors on numerous occasions to try to get things sorted and they would respond that they were “waiting for money to come in.” Eventually, they stopped taking his calls. He said that the non-payment of the wages he was due over Christmas 2017 created significant difficulties for him and his family. The complainant contacted Revenue in respect of the termination of his employment with the Respondent, as he was not issued with a P45. The failure to issue a P45 means that he is on emergency tax in his current role, creating further financial hardship. |
Summary of Respondent’s Case:
The hearing of this complaint was scheduled for 11.30am on May 31st. At 11.09am, a letter was sent by e mail from F&M Accountants, on behalf of the respondent. The hearing was over by the time I received the letter, which reads as follows: “We act as accountants and tax advisors to the above company. We confirm that in this capacity, in relation to (the complainant) (PPS No. provided), we never registered him as an employee of the company with the Revenue Commissioners. Neither did we issue him with a contract of employment, payslips or file payroll taxes for him with the Revenue Commissioners on behalf of the company.” Also on the day of the hearing, a letter was received by the WRC from Gartlan Winters, Solicitors. The letter stated that they acted for the respondent and that, “… (the complainant) was never employed by our client and no payment was ever made to (the complainant) in respect of employment.” The letter concluded, “We confirm that (the complainant) did share office space with (the respondent) together with a number of other companies between a period of October 2017 to December 2017.”
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Findings and Conclusions:
I do not accept the statement from the respondent’s solicitors. There is no credible reason why the complainant would concoct the fact that he was employed by the company, and that he left because the situation was irregular and disorganised. Neither does it make sense that one of the directors would pay him €500 for eight weeks, if he was not an employee. Shortly after he commenced, he registered his employment with the respondent with the Revenue Commissioners, submitting their registered employer’s number in his online Revenue account. He provided the respondent with a P45 from his last job four weeks after he joined. From the documents he submitted at the hearing, it is evident that he was set up with a company e mail address. Finally, I believed the complainant’s account of his discussions with the directors on December 4th with regard to the termination of his employment and their promise to pay him his outstanding payments. The respondent’s accountants submitted a letter to the effect that, on behalf of the company, they did not register him with the Revenue Commissioners as an employee. They fact that they quoted his PPS number indicates to me that there was some intention on their part to regularise his employment, otherwise they would have no use for this information. Why would they need his PPS number if he was simply sharing office space with their client? This letter confirms the failure of the respondent to regularise the complainant’s employment. I found the complainant to be a credible witness. He accepted a job in good faith, but the employer turned out to be disorganised and deceptive. He decided to leave when it became evident to him that he had been deceived and misled with regard to the job and its prospects. The complainant received a total of €4,000 from a personal bank account of one of the directors, with no payslips or any evidence that his position had been registered with Revenue. On the basis of a salary of €65,000, his weekly wages should have been €1,250 gross, and over the nine weeks of his employment, he should have been paid €11,250 gross, a shortfall of €7,250. He is also entitled to be reimbursed €900 for fuel and €192 for phone expenses. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that this complaint is well-founded. The respondent is to regularise the complainant’s full entitlement to €11,250 with the Revenue Commissioners and pay the complainant the outstanding net amount. The respondent is to issue the complainant with payslips (or, in any event, one payslip) with details of the gross pay, deductions and the final net pay due. The respondent is to issue the complainant with a P45 in respect of his employment with them and its termination on December 8th 2017. Net amounts of €900 and €192 are to be paid to the complainant in respect of the cost of his fuel and mobile phone. |
CA-0001760-3: Complaint under Section 13 of the Industrial Relations Act 1969
Summary of Complainant’s Case:
Having realised that all was not as it should be, on December 4th, the complainant agreed with one of the directors that the job wasn’t working out and he left on December 8th. He left his job due to the conduct of his employers, because they did not pay his proper salary, did not give him a contract of employment and did not fulfil the terms agreed with him when he was recruited. |
Summary of Respondent’s Case:
The respondent’s case is that the complainant was not employed by them. |
Findings and Conclusions:
Having considered this matter, for the reasons set out in the previous section, I find that the complainant was an employee of the respondents. I also find that it was not unreasonable for him to leave his job and his complaint in this respect is upheld. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have decided that the respondent is to pay the complainant €1,250, equivalent to one week’s pay, in compensation for the loss of his job in circumstances where he had no alternative but to leave. |
CA-0001760-4: Complaint under Section 7 of the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
From the time he commenced employment with the respondent, the complainant said that he asked for a statement of the terms and conditions of his employment. The effect of this is that he was never confident that the terms he was offered would actually be paid. The situation was made even more uncertain as he did not receive payslips. |
Summary of Respondent’s Case:
The respondent’s case is that the complainant was not employed by them. |
Findings and Conclusions:
Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they should receive a written statement setting out their terms and conditions of employment. Generally written up in the form of a contract, these statements are to include the following: (a) The name of the employer and the employee; (b) The address of the employer; (c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places; (d) The job title or the nature of the work that the employee is required to carry out; (e) The date that the employee commences in the job; (f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term; (g) The rate or method of calculation of the employee’s pay; (h) The frequency of pay; (i) Any terms or conditions relating to hours of work (including overtime); (j) Any conditions relating to paid leave (other than paid sick leave); (k) Any terms or conditions relating to – (i) Incapacity for work due to sickness or injury and paid sick leave; (ii) pensions and pension schemes; (l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment; (m) Details of any collective agreement which affects the employee’s terms and conditions of employment. The complainant’s evidence is that he did not receive a statement of his terms and conditions of employment, despite repeatedly asking for one. On his complaint form, he said that on the last day of his employment, the director who recruited him was abusive in response to his request for a contract and payslips and he made it clear that these would not be provided. As the complainant did not submit a formal complaint with regard to payslips under the heading of the Payment of Wages Act, and I am prevented from making a finding in respect of the fact that payslips were not provided. From his evidence, it is clear that he did not receive a statement of his terms and conditions of employment and I uphold his complaint in this respect. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the respondent is to pay the complainant €1,250, equivalent to one week’s pay, as compensation for the failure to issue him with a statement of his terms and conditions of employment. |
CA-0001760-4: Complaint under Section 27 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
As has been set out in the previous sections, the complainant was not paid any wages on the termination of his employment. In his evidence, he said that he did not take holidays while he was employed by the respondent from October 10th until December 8th 2017, a total of nine weeks. |
Summary of Respondent’s Case:
The respondent’s case is that the complainant was not employed by them. |
Findings and Conclusions:
As the Organisation of Working Time Act provides that the minimum annual leave entitlement is 20 days, the complainant is entitled to 0.38 of a day’s pay for each of the nine weeks that he worked. This is equivalent to 3.5 days’ pay. On the basis of his salary of €65,000, one day’s pay is (65,000/231 working days) = €281. The complainant is therefore entitled to (281 x 3.5) = €984 in respect of pay in lieu of holidays not taken. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In pursuit of his entitlement to holiday pay, the complainant submitted a complaint to the WRC under section 27 of the Organisation of Working Time Act. This complaint should have been properly submitted under the Payment of Wages Act 1991. As the respondent did not attend the hearing, I did not have the opportunity to seek agreement with regard to a change of the legislation under which the complaint can be adjudicated on. Based on their solicitors’ correspondence to the WRC, in which they argued that the complainant was not employed by them, I am not convinced that the director would agree to a change in the complaint form to state that the complaint is submitted under the Payment of Wages Act. I am therefore prevented from issuing a decision in respect of this matter, as the complaint has been submitted under the wrong legislation. |
Summary of Decisions:
Below is a summary of the redress I have decided upon under each of the complaint headings.
Complaint | Redress | Tax Treatment |
Payment of Wages Act 1991 | Wages: €7,250 gross Expenses: €1,092 net | €7,250 is subject to all deductions |
Industrial Relations Act 1969 | Compensation: €1,250 | €1,250 is not subject to deductions |
Terms of Employment (Information) Act 1994 | Compensation: €1,250 | €1,250 is not subject to deductions |
Organisation of Working Time Act 1997 | No award is made |
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Dated: 18th June, 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Non-payment of wages, statement of terms of employment |