Complainant

Respondent

Parties

Jack Doonan

 Kilnew Designs Limited

Representatives

Self-represented

 Self-represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00066930-001

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 23 of the Industrial Relations (Amendment) Act 2015

CA-00066930-002

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00066930-003

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00066930-004

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act 2000

CA-00066930-005

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00066930-006

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00066930-007

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00066930-008

24/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00066930-009

24/10/2024

The complainant referred various complaints to the Workplace Relations Commission in connection with a period of employment with the respondent from in or around July 2023 to May 2024.

The complainant responded to a job advertisement placed by the respondent for an apprentice joiner.  The complainant was employed and paid by the respondent as an apprentice joiner.  He did a 2-week trial period on commencement, and it was then agreed that the complainant would do an apprenticeship with the respondent.  The respondent made it clear to the complainant that he needed to do the apprenticeship or else he wouldn’t be retained in employment.  The complainant confirmed with the respondent his interest in an apprenticeship but asked if it could be held off for a while due to personal circumstances.

There were discussions during the complainant’s employment about an apprenticeship, pay rates, payslips, overtime and late payments. 

The complainant was not registered as an apprentice during his employment with the respondent.

The complainant did not receive payslips or a contract of employment until after the termination of his employment.

The complainant ought to have been paid weekly and was not paid in accordance with either the apprentice rate or the Employment Regulation Order for the construction industry.  He did not receive notice of termination of employment or holiday pay on termination of employment.

Before referral of the complaints to the Commission, the complainant wrote to the respondent setting out pay-related issues in connection with his employment, but did not receive a response.   The complainant claimed that as he was never registered as an apprentice with the respondent, he ought to have been paid the minimum wage as a labourer.  The complainant also complained of significant discrepancies between what payslips detailed he was paid and what he in fact received in pay from the respondent. 

The complainant was employed as an apprentice joiner doing carpentry work. 

On several occasions, the respondent raised with the complainant the matter of going ahead with the apprenticeship, but the complainant did not want to register as an apprentice and go to college due to personal circumstances.   The complainant requested that he remain on working with the respondent.  The respondent’s position was that he could only stay on if he was registered as an apprentice.

The respondent currently employs an apprentice and outlined the initial set-up and registration process for apprentices with SOLAS.

The respondent had payslips for the complainant, but the accountants did not have the complainant’s email address for issue to the complainant.

The respondent did not have records of annual leave taken by the complainant in April and May 2024.  The complainant was paid for any leave days taken and for public holidays in employment.

The complainant applied for an apprentice joiner role advertised by the respondent.  He did a 2-week trial period, and it was then agreed that he would undertake an apprenticeship with the respondent.  A contract of employment, provided to the complainant after the termination of his employment, referred to the complainant’s employment primarily as an apprentice carpenter.

It was common case that the complainant was not in fact registered as an apprentice joiner/carpenter.  The reasons for why the complainant’s registration and commencement of the statutory training and educational apprenticeship programme did not occur are not material to the complaints before me.

It was accepted that the SEO for the construction sector applied to the complainant’s employment with the respondent, and that he was employed by the respondent from July 2023 until 23 May 2024. 

Section 41 of the Workplace Relations Act 2015 applies to the complaints referred to me for adjudication.  Of note are the statutory timeframes for presentation of a complaint, which are set out in section 41 as follows:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complaints for adjudication under section 41 of the Workplace Relations Act 2015 were presented by the complainant to the Commission on 24 October 2024. 

In accordance with section 41(6) of the 2015 Act, the cognisable period or period the subject of adjudication is 25 April 2024 to 24 October 2024.  In this regard, it is relevant that the complainant’s employment with the respondent terminated on 23 May 2024.  There was no reasonable cause before me such as to warrant an extension of time under section 41(8) of the Workplace Relations Act 2015.  

From the evidence relating to payments and hours of work, I find that the complainant’s weekly working hours were 41.25, with an hourly rate of pay of €7.03.

After the first hearing date, the respondent paid to the complainant the sum of €2,124.00 by way of satisfaction of a complaint in relation to a shortfall in wages paid. 

CA-00066930-001 (Industrial Relations Act 1946)

The complainant was not an employee to whom an Employment Regulation Order applied. 

I therefore find, in accordance with section 45A of the Industrial Relations Act 1946, that the complaint of non-receipt of the minimum rate of pay set out in an Employment Regulation Order is not well founded. 

CA-00066930-002 (Industrial Relations Amendment Act 2015)

This is a complaint that the complainant did not receive the minimum rate of pay set out in a Sectoral Employment Order.  

Based on the cognisable period referred to above, the relevant Sectoral Employment Order is S.I. 207 of 2023, Sectoral Employment Order (Construction Sector) 2023 (the “SEO of 2023”).

In relation to pay rates, the SEO of 2023 provides:-

“The following minimum hourly rates of basic pay will apply in the sector from 18 September 2023 to 4 August 2024.

Craftsperson              €21.49 per hour

Category A Worker   €20.86 per hour

Category B Worker   €19.35 per hour

Apprentice Year 1 -  33.33% of Craft Rate

      Year 2 – 50% of Craft Rate

      Year 3– 75% of Craft Rate

      Year 4 – 90% of Craft Rate

A minimum hourly rate of basic pay of €15.64 will apply for two years after entrance to the Sector to all New Entrant Operative Workers who are over the age of 18 years and entering the sector for the first time.

…”

Having regard to the Sectoral Employment Order (Construction Sector) 2019, the SEO of 2023 applies to “persons employed in the Construction Sector as craft persons, construction operatives and apprentices”, and “apprentice and apprenticeship has the same meaning as it has in the Industrial Training Act 1967”.

Section 2 of the Industrial Training Act 1967 (the “1967 Act”) defines an apprentice as “a person employed by way of apprenticeship in a designated industrial activity and includes any person to whom regulations under section 28 of this Act apply.” 

The respondent’s business is a designated industrial activity within the meaning of the 1967 Act by virtue of S.I. 47/1969.

I have considered the Apprenticeship Code of Practice for Employers and Apprentices issued by SOLAS, the relevant State Agency for the purpose of the 1967 Act.  It describes the statutory apprenticeship as a statutory validated training and educational programme for SOLAS-registered apprentices, which is enterprise-led in conjunction with the relevant stakeholders.   At clause 5, it is expressly stated that the start date of a statutory apprenticeship is the date the apprentice registration is approved by SOLAS. 

In circumstances where the complainant was not registered as an apprentice joiner with SOLAS, I find that he was not employed by way of an apprenticeship within the meaning of the 1967 Act and the SEO of 2023.  Based on the complainant’s experience and circumstances at the material time, I find that he fell to be paid as a new entrant operative under the relevant Sectoral Employment Order for the duration of his employment with the respondent.

Section 23 of the Industrial Relations Amendment Act 2015 (the “2015 Act”) applies to this decision under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a Sectoral Employment Order. 

Section 23(2) of the 2015 Act provides:-

“A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurs, as references to the person who, by virtue of the change, becomes entitled to such ownership.”

As the complainant was not paid as a new entrant operative in accordance with the SEO of 2023, I find that the complaint is well founded, and I require the respondent pay to the complainant compensation of €3,500.00 which I consider just and equitable having regard to all the circumstances.  In determining compensation payable, I have taken account of the pay differential between the hourly rate of €7.03 paid to the complainant and the new entrant operative rate of pay of €15.64 under the SEO of 2023, the weekly working hours, the cognisable period/statutory timeframe for presentation of a complaint under the Workplace Relations Act 2015, and the ad hoc nature of pay to the complainant in the relevant period.

CA-00066930-003 EC (Road Transport) Regulations 2012 – S.I. No 36/2012

These Regulations apply to mobile workers and those engaged in international road transport activities.  

The complainant was employed in a carpentry business and engaged in carpentry work.  

The complainant does not have locus standi to maintain a complaint under the European Communities (Road Transport) Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.  

Accordingly, my decision is that this complaint against the respondent is not well founded.

CA-00066930-004 (Industrial Relations Act 1946)

The complainant was not an employee to whom an Employment Regulation Order applied. 

I therefore find, in accordance with section 45A of the Industrial Relations Act 1946, that the complaint of non-receipt of paid holiday/annual leave entitlements set out in an Employment Regulation Order is not well founded.

CA-00066930-005 (National Minimum Wage Act 2000)

The complaint is about non-receipt of the national minimum rate of pay.

The National Minimum Wage Act 2000 (the “2000 Act”) entitles employees to a national minimum hourly rate by way of remuneration for employment.   In accordance with section 24 of the 2000 Act, a dispute between an employee and their employer may be referred to an adjudication officer.   A dispute exists where the employee and their employer cannot agree on the appropriate entitlement of the employee to pay in accordance with the 2000 Act.  

Based on my finding above that the complainant was employed as a new entrant operative at the relevant time, the hourly rate to which the complainant was entitled exceeded the minimum entitlements provided for under the 2000 Act.

In the circumstances, I find that the dispute is not well founded.

CA-00066930-006 (Payment of Wages Act 1991)

The complaint under the Payment of Wages Act 1991 (the “1991 Act”) is in respect of a shortfall in pay, based on the apprentice rate of pay, from commencement of employment in July 2023 until the termination of the complainant’s employment in May 2024, for the monetary value of notice not received on termination of employment in July 2024 and for the monetary value of holiday pay not received.

The previously mentioned section 41(6) of the Workplace Relations Act 2015 applies to this complaint.

It is noted that the complainant advised the Commission in May 2025 of receipt of €2,124.00 as part payment of the complainant’s claim for a shortfall in wages from 2023 and 2024 in the sum of €2,130.12.

It is further noted that complaints bearing reference CA-00066930-007 and CA-00066930-008 relate to annual leave entitlements under the Organisation of Working Time Act 1997.

The complainant did not receive notice of termination of employment in July 2024 and claims one week’s wages in lieu of notice under the 1991 Act.

Wages are defined in section 1 of the 1991 Act as follows:-

“…, means any sums payable to the employee by the employer in connection with his 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 contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.”

There is no provision for payment in lieu of notice in the contract of employment and no evidence before me of the parties having agreed payment in lieu of notice. Having regard to the definition of ‘wages’ in section 1(1) of the 1991 Act, and section 1(1)(b) in particular, I am not satisfied that a sum in lieu of notice was payable to the complainant on termination of employment. I find therefore that the complaint under the 1991 Act for the monetary value of notice not received is not well founded.

As the complaint of holiday pay not received is addressed under CA-0066930-007 and CA-00066930-008, and the complaint of a shortfall of wages is from July 2023, which shortfall was addressed by the respondent after the first hearing date, I find that these complaints under the 1991 Act are also not well founded.

CA-00066930-007 (Organisation of Working Time Act 1997)

The complaint is that the complainant did not receive paid holiday/annual leave entitlement.

Section 19 of the Organisation of Working Time Act 1997 (the “1997 Act”) provides for minimum annual leave entitlements based on hours worked in a leave year as follows:-

“. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

 (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).”

Section 20 of the 1997 Act provides for the taking of annual leave and at section 20(1)(c) for leave being granted within the leave year to which it relates, or, with the employee’s consent, within six months of the end of the leave year.

Section 2 of the 1997 Act defines the leave year as a year beginning on any 1st day of April.

The previously mentioned section 41(6) of the Workplace Relations Act 2015 applies to this complaint.

As this complaint was presented to the Commission on 24 October 2024, having regard to the statutory timeframe for presentation of a complaint and the definition of a leave year in the 1997 Act, the cognisable period covered by this complaint is the leave year commencing 1 April 2024.  A complaint concerning a failure to provide paid annual leave in the leave year 1 April 2023 to 31 March 2024 carries a date of contravention of 31 March 2024, and has therefore been referred outside of the timeframe provided for in section 41(6) of the Workplace Relations Act 2015.  In the circumstances, I find that the complaint in respect of the leave year 2023/2024 is not well founded.

As the complainant’s employment ended on 23 May 2024, it is appropriate to deal with a complaint in respect of annual leave entitlement in respect of the leave year 2024/2025 by way of the complaint referred under CA-00066930-008 which relates to compensation on cessation of employment.

CA-00066930-008 (Organisation of Working Time Act 1997)

This complaint is that the complainant was not compensated for loss of annual leave entitlement on cessation of employment.

Section 23 of the Organisation of Working Time Act 1997 (the “1997 Act) provides:-

“(1)(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

(b) In this subsection—

“relevant period” means— in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year, in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year— the current leave year, and the leave year immediately preceding the current leave year, in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)— the current leave year, and the leave year immediately preceding the current leave year, or in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)— the current leave year, and the 2 leave years immediately preceding the current leave year.

…

(5) In this section “appropriate daily rate” and “normal weekly rate” mean, respectively, the appropriate daily rate of the employee concerned's pay and the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.”

The relevant period for the purpose of section 23 is the leave year 2024/2025.                                                                                                                                  

The respondent did not produce records to show compliance with the 1997 Act in relation to the complainant and has not proven to my satisfaction that the complainant was granted annual leave in the relevant period in accordance with the 1997 Act. 

Based on a termination date of 23 May 2024, the complainant had accrued untaken annual leave in respect of the leave year commencing 1 April 2024, which leave entitlement I calculate, by reference to section 19(1)(c) of the 1997 Act, to be 0.62 weeks. 

The respondent did not compensate the complainant for loss of annual leave entitlement on cessation of employment.  I therefore find that the complaint of a contravention of section 23 of the 1997 Act concerning compensation on cessation of employment in respect of the leave year commencing 1 April 2024 is well founded.

The right to annual leave is a fundamental social right in European law.  Redress for infringement of the right should not only compensate for economic loss sustained but provide a real deterrent against future infractions. 

Based on a normal working week of 41.25 hours and a new entrant operative’s rate of pay of €15.64 per hour, the compensation payable on cessation to the complainant under section 23 of the 1997 Act was €399.99.

Having regard to the financial value of the contravention and the need for a proportionate, effective and dissuasive remedy, in accordance with section 27(3) of the 1997 Act, I require the respondent pay to the complainant compensation of €800.00 which I consider just and equitable having regard to all the circumstances.

CA-00066930-009 (Organisation of Working Time Act 1997)

This complaint is that the complainant was not compensated for loss of public holiday entitlement on cessation of employment under the Organisation of Working Time Act 1997 (the “1997 Act”). 

Section 23(2) of the 1997 Act provides:-

“Where—

(a) an employee ceases to be employed during the week ending on the day before a public holiday, and

(b) the employee has worked for his or her employer during the 4 weeks preceding that week,

the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.”

The complainant’s employment ended on 23 May 2024.  The June public holiday in 2024 was 3 June 2024. 

In the circumstances, I find that the complaint of a contravention of section 23(2) of the 1997 Act is not well founded.  

CA-00066930-001

For the reasons set out above and in accordance with section 45A of the Industrial Relations Act 1946, I find that the complaint is not well founded.

CA-00066930-002

For the reasons set out above and in accordance with section 23 of the Industrial Relations (Amendment) Act 2015, I find that the complaint is well founded, and I require the respondent pay to the complaint compensation of €3,500.00 which I consider just and equitable having regard to all the circumstances.

CA-00066930-003

For the reasons set out above and in accordance with Regulation 18 of S.I. No 36/2012, I find that the complaint is not well founded.

CA-00066930-004

For the reasons set out above and in accordance with section 45A of the Industrial Relations Act 1946, I find that the complaint is not well founded.

CA-00066930-005

For the reasons set out above, I find that the dispute under the National Minimum Wage Act 2000 is not well founded.

CA-00066930-006

For the reasons set out above, I find that the complaints under the Payment of Wages Act 1991 are not well founded.

CA-00066930-007

For the reasons set out above, in accordance with section 27 of the Organisation of Working Time Act 1997, I find that the complaint in respect of annual leave entitlements under this complaint reference number is not well founded.

CA-00066930-008

For the reasons set out above, in accordance with section 27 of the Organisation of Working Time Act 1997, I find that the complaint of a contravention of section 23(1) of the 1997 Act is well founded, and require the respondent to pay to the complainant compensation of €800.00 which I consider just and equitable having regard to all the circumstances.

CA-00066930-009

For the reasons set out above, in accordance with section 27 of the Organisation of Working Time Act 1997, I find that the complaint of a contravention of section 23(2) of the 1997 Act is not well founded.  

Various complaints – SEO – Apprentice - Pay – Annual leave – Public holidays - Notice