ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00042895

Parties:

Complaints:

Date of Adjudication Hearing:  10/04/2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

These complaints were referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 22nd November 2022.  Following delegation to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant was represented by Mr Henry Kelly BL instructed by Kirwan & Kirwan Solicitors.  When contacted by the WRC Case Manager and Concierge, the Owner/Director of the Respondent contended that his business had closed down following a WRC workplace inspection.  He declined to participate in this investigation or attend at any of the hearings.  I satisfied myself that the Respondent was properly notified of all hearing dates.  The legal status of the Respondent remains ‘trading normally’.  These complaints were heard over a number of dates to enable the Complainant’s Solicitors to obtain requisite additional information with the final hearing held on 10th April 2025.  Owing to various difficulties accessing that information, these complaints can only now be brought to a conclusion.  Detailed written submissions and vouching documentation was furnished on behalf of the Complainant.  The hearings were held in public and the Complainant’s evidence was taken under affirmation.  Complaints CA-00053814-001 and CA-00053814-002 were withdrawn at the hearing in favour of pursuit under CA-00053814-003, the main issue being the underpayment / non-payment of wages by the Respondent.

Background:

The Complainant was employed by the Respondent between 7th February 2022 and 6th September 2022.  He is pursuing complaints for the non-payment of his wages and non-provision of a written statement of the terms of his employment.  The Respondent has confirmed that it is not engaging with these complaints.

CA-00053814-003 – Complaint under Section 6 of the Payment of Wages Act 1991 – Underpayment / Non-payment of Wages at the applicable SEO rate

Summary of Complainant’s Case:

The Complainant outlined his employment history with the Respondent giving rise to these complaints.  The Respondent is a small bespoke carpentry business, and at the material time was primarily engaged in manufacturing custom made Irish pubs in a workshop in Enniscorthy which would be transported to Europe where they were fitted.  The Complainant came to Ireland from France and as such, had limited knowledge of his statutory employment rights.  With some carpentry experience, he wished to train as a joiner. 

On 7th February 2022, the Complainant commenced employment with the Respondent based upon representations by the Owner/Director to the effect that he would be registered as an apprentice joiner with SOLAS in accordance with the Industrial Training Act 1967 and a traditional training curriculum would be followed in accordance with applicable guidelines.  The Owner/Director further indicated that a contract of employment was not required in the context of an apprenticeship, and at no stage during his employment did the Complainant ever receive either a contract or written statement of the terms of his employment.  Neither did the Owner/Director ever register him as an apprentice with SOLAS or provide him with the requisite course of training for a joiner.  He received limited ad hoc direction on the job.  He was also informed that he would be paid an “apprenticeship rate” of €260 for working a 42.5 hour week, equating to a rate of pay of €6.12 per hour.  The statutory rate of pay for a 1st year apprentice under S.I. No. 598/2021 was €6.84 per hour at the time.  The Complainant was frequently required to work in excess of 42.5 hours per week in respect of which he was paid €6.12 per hour.  He was also required to travel abroad to transport materials and stay there whilst fitting the Irish pubs.  He was paid a flat rate of €120 per day whilst working abroad but required to bear most of his own travel costs including fuel and accommodation.

The Complainant undertook five projects in Switzerland and as there had been a delay with the last project undertaken in May 2022, he had worked long hours and through weekends to get it completed.  However, the Owner/Director had been verbally abusive to him on his return.  There were numerous other breaches of his employment rights which fall outside the scope of these complaints.  From 22nd May 2022, there was a shortfall in his wages and from 11th July 2022, he was not paid at all.  In mid-July 2022, the Complainant had to return to France for three weeks to attend his father’s funeral and attend to his affairs which had been a difficult time for him.  Owing to the non-payment of his wages, he had to borrow from his family to pay for a return ticket to Ireland.  He returned to work on 8th August 2022.  Upon receiving no further payment, he went to see the Owner/Director on 15th August 2022 and informed him that he was unable to put petrol in his car to drive to work and as such could not continue to work for him.  The Owner/Director cited financial difficulties arising from the client for the last job withholding payment owing to dissatisfaction with the delay.  He offered to make a small payment towards petrol to secure the Complainant’s return the following day.  When this was not forthcoming, he was unable to return to work. 

On 6th September 2022, the Complainant emailed the Respondent setting out a breakdown of his outstanding wages and expenses and stating: “The word ‘disappointed’ is not strong enough to express what I feel.  I just ask you for €40 or €50 to put petrol in my car and be able to come back to work.  I know you have issues being paid by the client…, but this is not supposed to be my problem.  After everything I have done for you and RMI (all the travel between Ireland and the client, the overtime…).  I trusted you and you treated me as though I’m worthless.  You depleted all my savings, you put me in danger so many times, you insulted me even though I worked during weekends for you with no pay.  It’s been 3 weeks with no news from you and not a penny in my account.  I think I’ve wasted long enough.”  The Complainant did not receive any response and regards this email as his resignation.  Having received no payment whatsoever, he referred these complaints to the WRC on 22nd November 2022.  He subsequently requested a statement of his average hourly rate of pay from the Respondent, in respect of which there was also no response. 

The Complainant acknowledges that he cannot recoup his unpaid expenses under the Payment of Wages Act 1991 and seeks compensation in respect of his unpaid wages.  It is submitted on his behalf that his employment fell within the terms of the S.I. No. 598/2021 – Sectoral Employment Order (SEO) (Construction Sector) 2021 which came into force on 1st February 2022 and was applicable during the cognisable six-month period before referral to the WRC.  This SEO governs the rates and pay and other employment conditions of employees including apprentices within the construction sector and is legally binding on employers.  The requisite terms remained valid amidst legal challenges to this and other SEO’s. 

It was submitted that as the Respondent had failed to meet any of the legal/other criteria for the provision of an apprenticeship programme, the Complainant was employed by the Respondent as an employee in a regular capacity and must be regarded as a New Entrant Operative Worker to the construction sector in terms of his rate of pay.  In this respect, S.I. No. 598/2021 provides: “An hourly rate of pay of €14.93 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.”  By way of explanation, an apprenticeship is a training and education programme entailing mixed learning in a college or training institution with work-based learning in a company leading to internationally recognised qualifications.  Statutory apprenticeships are currently governed by the Industrial Training Act 1967.  Section 2 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."  Section 28 provides: "An Chomhairle may by regulations under this section declare that every person employed in a particular manner in a designated industrial activity by a particular employer shall be deemed to be an apprentice for the purposes of this Act."  An Chomhairle was the State Agency established by the 1967 Act.  The Labour Services Act 1987 replaced An Chomhairle and vested all of its functions in a new statutory entity, An Foras Áiseanna Saothair (FAS).  FAS was replaced by An tSeirbhís Oideachais Leanúnaigh agus Scileanna (SOLAS) under the Further Education and Training Act 2013.  Section 2 of the Qualifications and Quality Assurance (Education and Training) Act 2012 provides further guidance on the legal definition of an apprenticeship stating that a "'programme of education and training' means a process by which a learner acquires knowledge, skill or competence and includes a course of study, a course of instruction and an apprenticeship."  Accordingly, a statutory apprenticeship falls within the legal definition of a ‘programme of education and training’.  Section 28 imposes various legal obligations on apprenticeship providers including the requirement to “… establish procedures for quality assurance for the purposes of establishing, ascertaining, maintaining and improving the quality of education, training, research and related services the provider provides.”  Local Education and Training Boards (ETBs) administer aspects of the apprenticeship process on behalf of SOLAS.  Prior approval of an employer as an apprenticeship provider and registration of the apprenticeship with SOLAS is required for receipt of financial supports and QQI awards.  It is further noted that a useful outline of the parties’ legal/other obligations is provided in the online ‘Apprenticeship Code of Practice for Employers and Apprentices’ issued by SOLAS.  In particular, apprenticeship providers are required to abide by all employment-related legislation and those who fail to abide by the Code of Practice are subject to sanction.

Accordingly, the Complainant contends that he is entitled to payment of the shortfall in his wages within the cognisable six month period at the New Entrant Operative Worker SEO rate of pay of €14.93per hour from 22nd May 2022 up until his resignation on 6th September 2022, comprising of a fifteen week period.  As vouched with payslips, bank statements and spreadsheets setting out his hours worked / contracted versus the wages he was paid for same, the Complainant received a total of €1,204 in wages during the cognisable period.  Had he been paid the applicable SEO rate of €14.93 per hour, he would have received €634.53 per week and his pay would have been €9,517.86.  Accordingly, there was a shortfall in his wages of €8,313.86.

Summary of Respondent’s Case:

The Respondent did not attend at any of the hearings or proffer any evidence in rebuttal of this complaint.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions.  Section 1(1) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as “…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,”  There is no issue in the instant case that the monies sought by the Complainant comprising of unpaid wages constitutes ‘wages’ under the Act.

In relation to deductions from wages, Section 5(1) of the Payment of Wages Act 1991 provides: “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.”  It is well-settled law that a reduction in wages constitutes a deduction from wages under Section 5 of the Act.  The remainder of Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages not applicable to the instant case.  Section 6 of the Act provides for the referral of complaints to the WRC and the available redress.

As stipulated in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1R 478, a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5 of the Payment of Wages Act 1991.  In the instant case, the Complainant was not provided with a contract or written statement of the terms of his employment setting out his rate of pay.  Based upon his credible evidence, I am satisfied that he was not registered as an apprentice joiner with SOLAS in accordance with the Industrial Training Act 1967 and/or provided with training which had any of the features associated with an apprenticeship as helpfully set out above on his behalf.  Accordingly, the Complainant fell to be paid as a New Entrant Operative under S.I. No. 598/2021 at €14.93 per hour.

The next question to be considered is whether the Respondent was lawfully entitled to reduce and/or make deductions from the Complainant’s wages under Section 5 of the Payment of Wages Act 1991.  In this respect, the legislation is unequivocal and Section 5(1) expressly requires either a statutory power, a contractual term or the employee’s prior written consent for an employer to lawfully reduce or make a deduction from an employee’s wages.  Based upon the Complainant’s credible evidence as supported with detailed vouching, I am satisfied on the balance of probabilities that there was a shortfall in his wages as outlined and accordingly, the Respondent is in breach of Section 5 of the Payment of Wages Act 1991. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions.  I find this complaint to be well-founded for the reasons set out aforesaid.  Once a complaint has been declared well-founded, Section 6(1) of the Payment of Wages Act 1991 provides that an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as considered reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”  Whilst acknowledging that the Respondent may have run into financial difficulty, it is noted that he did not take any steps to address this with the Complainant who was left in an invidious position whereby he had to depend upon savings and borrow from his family until he was unable to purchase petrol necessary to travel to work.  This was aggravated by other factors including the absence of a written statement of terms of employment setting out his rate of pay and failure to register him as an apprentice joiner with SOLAS, thereby denying him associated protections.  I therefore consider this breach of the Act to be towards the upper end of seriousness.  Accordingly, I find it reasonable in all of the circumstances to direct that the Respondent pays the Complainant compensation in the sum of €15,000 (comprising of €8,313.86 in unpaid wages and €6,686.14 in compensation) within 42 days hereof.

CA-00053814-005 – Complaint under Section 7 of the Terms of Employment (Information) Act 1994 – No Written Statement of Terms of Employment

Summary of Complainant’s Case:

The Complainant contends that he never received a written statement of the terms of his employment contrary to Section 3 of the Terms of Employment (Information) Act 1994.  He gave evidence confirming that from the commencement of his employment to date, he had never been furnished with same.  As a consequence, he had been unaware of his statutory employment entitlements and in particular, his correct rate of pay in accordance with S.I. No. 598/2021 – Sectoral Employment Order (Construction Sector) 2021.

Summary of Respondent’s Case:

The Respondent did not attend at any of the hearings or proffer any evidence in rebuttal of this complaint.

Findings and Conclusions:

As at the commencement of the Complainant’s employment on 7th February 2022, Section 3(1) of the Terms of Employment (Information) Act 1994 provided that: ”An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,” as listed therein.  Again, I find the Complainant’s evidence to be credible and I am satisfied on the balance of probabilities that he was never given a written statement of the terms of his employment by the Respondent in contravention of Section 3 of the Terms of Employment (Information) Act 1994.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  In addition to various remedies dealing with the provision / content of a written statement, Section 7(2) provides that an Adjudication Officer may “…order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with the Regulations under Section 17 of the Unfair Dismissals Act 1977.”  Noting that the Respondent had made no effort to comply with the legislation and the prejudice caused to the Complainant by the lack of clarity regarding his rate of pay and other conditions, I direct that the Respondent pays a sum of €2,538 (4 weeks’ wages) in compensation as being just and equitable in all the circumstances within 42 days hereof.

Overall Award:

For the avoidance of doubt, the overall award to the Complainant in respect of both complaints is €17,538.

Dated:   04.06.2025

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Non-payment of wages in accordance with S.I. No. 598/2021 – Sectoral Employment Order (Construction Sector) 2021 contrary to Section 5 of the Payment of Wages Act 1991 – No written statement of terms of employment given contrary to Section 3 of the Terms of Employment (Information) Act 1994