Complainant

Respondent

Parties

Kenneth  Kapesi

Martin Barnes Haulage

Representatives

John Forde

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059532-001

20/10/2023

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

CA-00059532-002

20/10/2023

The Complainant is a HGV driver who came from South Africa to work for the Respondent towards the end of 2022. He was placed on unpaid lay-off shortly after his arrival as the Respondent’s business experienced a downturn.

The Complainant Kenneth Kapasi gave evidence under affirmation.

He was recruited from South Africa to work for the Respondent as a HGV driver.

He worked excessive hours but was paid a fixed sum of €150 a day rather than an hourly rate. He had raised complaints that others were getting paid more than him for doing the same work.

In December 2022 he was told the work was slowing and the owners asked for a meeting and suggested that he and others go back home for their holidays.  He was supposed to come back first week of February. When he contacted the Respondent in February 2023 they failed to engage with him. He continued to try and text them over the summer of 2023.

He could not work in South Africa because the government knows he has a contract overseas.

The Respondent ignored him until he eventually got through to one of the management figures in September 2023 when he was told he was laid off.

He asked for confirmation of dismissal and then flew to Ireland to collect his belongings. This happened on the 14th of October 2023. He managed to meet two managers. People were shocked to see him there.

The Respondent didn’t comply with the lay-off clause in his contract.  They kept him in limbo for almost 11 months. This had a huge impact on him and his family.

He tried to stay in Ireland but told to leave as his resident’s permit was expiring.  For his status to remain good he needed to leave the republic of Ireland from that date. They gave him letters to renew the permits.

Mr Forde for the Respondent made written and oral submissions. He outlined that Mr Kapesi was working for the Respondent for only 6 weeks. They operate a seasonal business. They had recruited him on the basis that he would come to Ireland in early 2023 but he arrived earlier. They paid his rent and flights.

After he arrived and began working they asked him to provide a ppsn but he did not. They lost a major contract and placed him on lay-off on a first in first out basis. They hoped to build back up the business but were not able to and the rest of the staff were let go in November 2023.

They understand Mr Kapesi has his own HGV business in South Africa which has continued to operate throughout this time. They have kept him on lay-off as he sought residency but now that that has been denied the employment relationship must end.

The Law

The Act at Section 5(1) provides as follows:

5.(1) 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.

Section 5(6) of the Act provides:

(6) Where

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 6 of the Act in relevant part provides as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers 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, were 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.

Wages are defined in s. 1 of the Act of 1991 in relevant part 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…”

Section 41(6) of the Workplace Relations Act 2015 provides that:

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.

Preliminary Issue- Time

As per the time limits outlined above, I do not have jurisdiction to consider any alleged deductions which happened before the 20th of April 2023 unless the Complainant has established reasonable cause for the delay in submitting his complaints. He has not done so.

Review of the relevant evidence

While the Respondent did not provide oral evidence and the Complainant did, the Respondent did make oral submissions through their representative and the Complainant was invited to respond to these. It was not disputed by the Complainant that the Respondent’s business experienced a significant downturn which got progressively worse over the course of 2023. The Complainant has also not disputed that he was selected for lay-off on the basis of his short service. The Complainant is not entirely clear as to what was communicated to him in December 2023 by the Respondent but after only 6 weeks work it is obvious that his return to South Africa for at least 6 weeks unpaid was not just him being asked to take his holidays.

The Respondent did not challenge the Complainant’s evidence that they ceased contact with him. They failed to provide him with clarity or a timeline for his return to work or if this was not foreseeable, his termination. Similarly, the Complainant did not dispute the Respondent’s submissions that this was in some part linked to his applications for Irish residency which they sought to support after there was no reasonable prospect of the Complainant returning to work.

The Complainant’s contract of employment contains a lay-off clause which states: The Company reserves the right to lay you off from work of reduce you’re (sic) working hours if, for circumstances beyond its control, it is unable to maintain you in employment or maintain you in full time employment. You will receive as much notice as reasonably possible prior to such lay-off period or short time. You will not be paid during the lay-off period. You will be paid only in respect of hours actually worked during periods of short time.

Application of the Law 

On review of the above legislation and in line with the High Court’s position in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 I must first determine whether the wages the Complainant seeks payment for were properly payable.

On review of the information available to me it would appear that he was laid-off in line with his contract and did not perform any work from December 2023 and as such there are no wages properly payable from this time.

The Complainant has raised a concerning lack of engagement from the Respondent which began in early 2023 after he believed he was due to return to work. While the Respondent was obviously experiencing serious business difficulties this is no excuse not to communicate properly with their employee and keep him reasonably informed of their expected return to work.

Despite my concerns in how the Respondent failed to engage with the Complainant past a certain point, I do not see how this failure makes any wages properly payable. The Complainant was not carrying out work for the Respondent and was already on lay-off.

In the circumstances the complaint must fail. 

CA-00059532-001

The complaint is not well founded.

CA-00059532-002

The complaint is not well founded.