Complainant

Respondent

Parties

Gerald  McGuinness

Lites Group

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Martin Duffy, Operations Director

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-00059436-001

17/10/2023

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

CA-00059436-002

17/10/2023

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

CA-00059436-003

17/10/2023

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

CA-00059436-004

17/10/2023

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

CA-00059436-005

17/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00059436-007

17/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave their evidence under affirmation.  The parties were provided with the opportunity to cross examine the witnesses.

The complainant’s salary was €32,000 per annum amounting to a weekly wage of €615.38

001 Payment of Wages

The complainant submitted that he was not paid properly for the work he carried out.  The complainant submitted that he was not paid money to which he was entitled.  He alleged that there was PAYE fraud and that he was paying emergency tax when he should not have been.

He stated repeatedly in evidence that he did not know what amount he was left short and could not provide a figure for that amount.

002 Payment of Wages

The complainant stated in evidence that this complaint was a duplicate of the first complaint.

003 Maximum Working Hours

The complainant submitted that he was employed “on the road” and accordingly was entitled to be paid from the time he left his home until the time he returned. He submitted that he worked more than the maximum working hours.

004 – Notification of Start Times in Advance

The complainant submitted that he did not receive any notification of his working times.

005 – Statement of Core Terms

The complainant stated that his contract indicates that his place of work is listed as Dublin but that he never worked there.

007 - Penalisation

The complainant submitted that he was penalised as a result of disclosing fraudulent behaviour to the Revenue Commissioners.  The penalisation occurred when the respondent deducted €800 from his final salary payment of €900.

Oral evidence:

The complainant gave evidence that he was paid 2 weeks in arrears. The complainant was not aware of how much his wages were left short and despite repeated questions to that effect was unable to provide an amount of the shortfall. The complainant confirmed that the second payment of wages case was a duplicate of the 1st.

The complainant submitted that his place of employment was his home place. He stated that he is required to drive 3 hours to and from the work area that was assigned to him and therefore he ended up working from 10am to 10 pm, five days a week. He stated that he never received notification of his working times.

The complainant pointed out that is contract of employment indicates that his place of work is Dublin but that he was never near the Dublin office. He also noted that the contract of employment says that he should be available from 12 midnight to 9 pm although his normal hours are 37 hours per week.

The complainant stated that he disclosed to the Revenue Commissioners that there was payment fraud in relation to his wages and that he was penalised when the respondent took over €800 out of his final salary of €900.

Under cross examination the witness was asked whether he had any evidence of intentional deductions, but he indicated that he had no evidence of “intentional” deductions. He was asked whether any disciplinary action was taken against him and he said that the wages speak for themselves footstep he was asked whether he raised a grievance and he indicated that he had with his line manager but it was put to him that there was no evidence that he had raised a grievance.

In closing submissions, the complainant made reference to the European Court case of Tyco when noting that his travel time to and from work should be considered travel time.

001 & 002 Payment of Wages

The respondent submitted that there was an administration error with the payroll systems and that when it was rectified, the complainant was reimbursed the emergency tax that had been deducted in error.  It submitted that there was not unlawful deduction from the complainants’ wages.

003 Maximum Working Hours

The respondent submitted that the complainant was contracted to work from 12 to 8pm and no issue was flagged to them regarding this matter.

004 – Notification of Start Times in Advance

The respondent submitted that the complainant was employed in the field to start at 12 and finish at 8pm.

005 – Statement of Core Terms

The respondent made no reference to this complaint other than to reference the complainant’s contract of employment.

007 - Penalisation

The first witness for the respondent noted that there was an error in the system when the complainant was set up and this was quickly rectified when it was brought to their attention.  The second witness noted that the complainant was employed in the field and had to cover a lot of terrain.  He was employed to start at 12 and to finish at 8pm and the role involved a lot of travel.  He noted that the complainant indicated that he was prepared to travel prior to accepting the role.

Under cross examination the witnesses noted that the matters raised were investigated promptly.  Another witness confirmed that there was not intention in terms of the deductions, they arose due to a systems issue.

001 Payment of Wages

The complainant could not put a monetary amount or otherwise indicate the level of any contravention of the Act.  The respondent indicated that any underpayment had been rectified.  In response the complainant indicated that he had been paid outstanding monies but only when the complainant was scheduled before the WRC.  The complainant did not dispute that he had been refunded the monies stopped from his wages by way of emergency tax.

Having regard to all the circumstances of this complaint, I find that the complainant has not established that the Act has been contravened.

002 Payment of Wages

Having regard to all the circumstances of this complaint and to the admission that it is a duplicate, I find that the complainant had not established that the Act has been contravened.

003 Maximum Working Hours

Section 15 (1) of the Organisation of Working Time Act deals with weekly working hours and states:

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

The complainant only worked in the position on the road for approximately 6 weeks which is not long enough as a reference period to indicate whether the respondent was contravening the Act in this regard.  On the basis of the duration of employment in this position, I find that this complaint is not well founded.

004 – Notification of Start Times in Advance

The complainant gave evidence that the respondent regularly called him outside of the stated working hours and that his travel time was not included in his working hours.  He referred to the Tyco case before the European Court (Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, (C266/14).   The court in that case held that

“In the light of all the foregoing considerations, the answer to the question asked is that point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.”

His contract noted that Dublin was his place of work but the evidence on the day was that he had not fixed place of work and that he was regularly expected to travel outside the working hours noted in his contract for exclusively for work purposes.  The respondent pointed out that his start and finish times were contained in the contract of employment.

I note that the issue of working time is not disputed by the respondent other than to say that the complainant was employed from 12 to 8pm.  The contract of employment is silent on the issue of travel times other than to say that times of work will vary, and that overtime just be agreed in advance.

Section 17 (1) – (5) of the Organisation of Working Time Act contains the following:

Provision of information in relation to working time.

17.—(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

(3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

(4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

(5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee’s employment.

The evidence from the complainant regarding mandatory attendance at meetings outside of the working hours notified to him was uncontested.  When this is taken in tandem with the long commute for the exclusive purposes of work, I find that this complaint is well founded.  I find that an award of three weeks wages is appropriate having regard all the circumstances of this complaint – i.e. €1846.14

005 – Statement of Core Terms

Section 3 (1A) of the Terms of Employment (Information) Act states that

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

(f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated,

(g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places;

(h) either—

(i) the title, grade, nature or category of work for which the employee is employed, or

(ii) a brief specification or description of the work;

(i) the date of commencement of the employee’s contract of employment;

(j) any terms or conditions relating to hours of work (including overtime);

(k) where a probationary period applies, its duration and conditions.

Having regard to the written and oral evidence provided by the parties, I find that in specifying an incorrect work location in the contract of employment, the respondent has contravened Section 3(1A)(g) of the Act and the complaint is well founded.  Having regard to all the circumstances of this complaint, I consider an award of one week’s wages is just and equitable, i.e. an award of €615.38.

007 – Penalisation

Section 20(1) of the Criminal Justice Act, 2011 states as follows:

20.— (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee—

(a) for making a disclosure or for giving evidence in relation to such disclosure in any proceedings relating to a relevant offence, or

(b) for giving notice of his or her intention to do so.

(1A) Subsection (1) does not apply to the making of a disclosure that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(2) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1).

Having regard to the evidence presented in relation to this matter, I am not satisfied that the complainant has established that he made a disclosure relating to a relevant offence.  I am not satisfied that the complainant has established that he was penalised under Section 20 (1) of the Act.  Consequently, I find that this complaint is not well founded.

001 Payment of Wages

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant has not established that the Act has been contravened.

002 Payment of Wages

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant has not established that the Act has been contravened.

003 Maximum Working Hours

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

004 – Notification of Start Times in Advance

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is well founded.  Arising from my decision, I award the complainant compensation equivalent to three weeks wages – i.e. €1846.14 which I consider to be just and equitable having regard to all the circumstances of this complaint.

005 – Statement of Core terms

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that this complaint is well founded.  Arising from my decision, I award the complainant compensation equivalent to one weeks wages – i.e. €615.38 which I consider to be just and equitable having regard to all the circumstances of this complaint.

007 - Penalisation

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

Payment of Wages – no contravention established – Working Hours – not well founded – Organisation of Working Time Act – well founded – award of compensation – Terms of Employment (Information) – well founded – award of compensation – Schedule 2 Criminal Justice Act 2011 – not well founded