Complainant

Respondent

Parties

Norbert  Rygielski

Thermoshield Limited

Representatives

  In person

 Did not attend

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-00056901-001

29/05/2023

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

CA-00056901-002

29/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056901-003

29/05/2023

The complainant was employed by the respondent as a Painter from on or about 29th August 2022 until 24th April 2023.The complainant supplied all payslips that he had been given but stated that he was not given payslips on numerous occasions throughout the employment. The complainant’s employment ended on 24th April 2023, and he commenced as a sub-contractor with the respondent in May 2023, but this arrangement ceased as the complainant stated he was not paid for the work he carried out as a self-employed contractor. The periods of self-employment are outside the scope of this adjudication as the complainant was not employed under a contract of employment.

Further complications arise in the adjudication process as there is no participation from the respondent and there are two separate respondents named in the complaint. The respondent is named as Thermoshield Limited in respect of the employment claims. In respect of the periods of self-employment it appears that the main contractor is Thermoshield Building Services Limited and invoices are submitted to this entity by the complainant. On that basis, I find that the correct respondent in respect of the employment rights complaints is Thermoshield Limited.

Timing of the complaints

The complaint relating to pay was submitted to the WRC on 29th May 2023. The cognisable period of the complaint is 30th November 2022 – 29th May 2023. The complainant sought an extension of time so that the entirety of his employment commencing on or about 29th August 2022 could be considered. I have not granted the extension of time as there were no reasons submitted that explain and excuse the delay in submitting the complaints as set out in Labour Court Determination No: DWT 0338 Cementations Skanska v Carroll. Accordingly, I will consider the cognisable period of the complaint only.

Representation

The complainant represented himself at adjudication and was assisted in his presentation by a WRC appointed Interpreter. The complainant had minimal documents available apart from a small number of payslips that had been provided during the employment and his online banking statements that showed the payments that were made to him during the employment.

Additional Information

At the adjudication hearing on 28th January 2025, the complainant was given an opportunity to supply any additional written documentation that he may have in support of his complaints. The complainant was unsure if he had any further documentation that would assist. No further documentation was submitted.

CA-00056901-001 – Payment of Wages Act, 1991

The complainant is seeking that he be paid outstanding wages in the sum of €4700. The complainant stated that he did not receive 16 payslips during his employment and worked for the respondent on a full-time basis from on or about 29th August 2022 until 24th April 2023. The complainant stated that he worked 40 hours per week and was paid at €20 per hour. The complainant also provided payslips that he had received as well as online banking payments in respect of the payments he did receive. The complainant quantifies the shortfall in payments to be €4,700.

CA-00056901-002 – Organisation of Working Time Act, 1997

The complainant stated that he took holidays during the employment and was not paid for same. The dates of the holidays are: 7/10/22 -11/10/22, 20/12/22-15/01/23 and 5/4/23 – 11/4/23. The complainant is seeking payment for the holidays in question.

CA-00056901-003 – Terms of Employment (Information) Act, 1994

The complainant stated that he sought his terms and conditions of employment in writing from his employer when he commenced employment but was never provided with same.

The respondent did not attend the adjudication hearing and was not represented despite being corresponded with on a number of occasions in respect of the complaints and the matter being rescheduled to facilitate his attendance.

It is unfortunate that the respondent chose not to attend the adjudication hearings on the within complaints and the absence of the employer’s participation in the process as well as a lack of records on the matters raised have greatly hindered the adjudication process. The conclusions and decisions below are based on the verbal submissions of the complainant as assisted by the WRC appointed Interpreter as well as consideration of the minimal amount of documentation that the complainant had in his possession to be provided as evidence.

CA-00056901-001 – Payment of Wages Act, 1991

I have reviewed the online banking payments that were submitted in respect of payments made to the complainant. For the cognisable period of the complaint, the following payments were made:

December 2022        €1,800 paid

January 2023                €800 paid

February 2023              €950 paid

March 2023               €3,650 paid

April 2023                €627.78 paid

Employment ended 24th April 2023

From the records provided, the total paid to the complainant between 1st December 2022 and 3rd April 2023 was €7,827.78 net.

The total amount due to be paid based on payslips showing 40 hours of work per week for a weekly wage of €800.00 gross (€772.00 net) was €14,400 gross (€13,896 net) up to 3rd April 2023. The shortfall is therefore €6,068.22 net.

From the records provided, there was no payments made at all between 4th April 2023 and 24th April 2023 when the employment ended, at which time the complainant briefly became a self-employed sub-contractor for the respondent. In this three-week period the payments due would have been €2,400 gross (€2,316 net).

Total underpayment of wages €8,384.22 net.

Note: Within the above period, the complainant was on annual leave without payment for approximately 8 days totalling a gross payment of €1,280 (€1235.20 net) which has been awarded below under different legislation. This amount is deducted from the total amount due to the complainant.

Total due - €8,384.22 – €1,235.20 = €7149 net

CA-00056901-002 – Organisation of Working Time Act, 1997

The complaint relates to the non-payment of holiday pay on three occasions during the employment. It is incumbent on the employer to keep records in accordance with Section 25 of the Organisation of Working Time Act, 1997. Based on the information supplied and in the absence of any participation from the respondent or records to the contrary, I find that the complainant accrued 13 days of annual leave during his employment and was paid for 5 days (7/10/22 – 11/10/22. The complainant has a remaining entitlement to eight days pay in respect of annual leave (8 days @€160.00 per day).

CA-00056901-003 – Terms of Employment (Information) Act, 1994

In the absence of any participation from the respondent or records to prove the contrary, I am satisfied on the basis of the complainant’s verbal submission that he did not receive written terms and conditions of employment from his employer, which is in contravention of Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00056901-001 – Payment of Wages Act, 1991

The complaint is well founded. The respondent is directed to pay the complainant €7,149.00 net in respect of unpaid wages for the cognisable period of the complaint.

CA-00056901-002 – Organisation of Working Time Act, 1997

The complaint is well founded in part. The respondent is directed to pay the complainant €1,280.00 gross in respect of outstanding annual leave entitlements at the end of his employment.

CA-00056901-003 – Terms of Employment (Information) Act, 1994

The complaint is well founded. The respondent is directed to pay the complainant €1,600 (two weeks gross pay) in respect of not providing him with a written contract of employment on commencement of employment.

Underpayment of wages, annual leave entitlement, no written terms and conditions of employment