Complainant

Respondent

Parties

Leo  Hogan

Entegro Limited (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

Fergal Doyle BL instructed by  Francis B. Taaffe & Co Solicitors

 Barry O’Mahoney BL instructed by ARAG Legal Protection

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-00065931-001

11/09/2024

The Complainant was employed by the Respondent as a Telecoms Field Surveyor commencing employment on 4 January 2022 and resigning from this employment on 18 September 2024 with an end date of 22 September 2024. The Complainant gave evidence on Oath.  Mr Doyle BL appeared on the day. It was submitted Mr Taaffe was unable to attend.

Two witnesses gave evidence on Affirmation on behalf of the Respondent: Anita Walsh, Head of HR and Amy Caulfield, HR Business Partner.

The name of the Respondent was amended at the outset of the hearing.

Submissions were received from the Respondent but not the Complainant. Clear directions were given at the end of the hearing allowing the Respondent to file the Employee Handbook and information about Toolbox Talks. No further post hearing submissions were considered from the Complainant on the basis that the parties were given equal time to prepare and file submissions

The Complainant gave evidence that he travelled to and from work onsite as a Telecoms Field Surveyor. He earned a gross sum of €730 per week and worked 45 hours until he resigned on 22 September 2024.

The Complainant gave evidence that he was not paid the sum of €4,837.25 on 4 July 2024 relating to his hours of work.

It was his evidence that he was not paid for the travel time he spent as required by his job. He relied upon his contract of employment and “Toolbox Talks”.

It was his evidence that from 26 April 2024 he worked 40 hours, as per his contract of employment, but once reached he stopped working. His working hours were communicated to the Respondent.

The Complainant lodged his complaint with the Workplace Relations Commission (WRC) on 11 September 2024. It was submitted that the Complainant had been on certified sick leave since 8 July 2024. Accordingly, he was not entitled to any wages from that date onward and had exhausted his entitlement to Statutory Sick Pay (SSP) by the time the complaint was submitted.

It was the Respondent’s submission that the reckonable period therefore spans from 12 March 2024 up to 8 July 2024, the date on which the Complainant commenced his period of sick leave. It is further submitted that the Complainant did not return to work following this absence and subsequently tendered his resignation.

The sole matter before the WRC is the Complainant’s allegation that he was not paid the sum of €4,837.25 on 4 July 2024. This claim is based on the assertion that the employer failed to pay wages in accordance with the hours worked. The Respondent submits that this is the only complaint properly before the WRC, and that any other potential claims are now statute-barred and therefore inadmissible.

The Respondent relied upon CJEU decision in Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another Case 266/14, Breffni Carpentry Services Ltd and Deniss Solodounikovs (DWT0816), Gfencheva v ISS Ireland DWT1157 and Sylwia Ignocok v Caspian BMP Ltd ADJ 00043205. The HSE v  McDermott 2024 [IEHC] 331 was also referred to.

Preliminary Objection

The first consideration is that of time.

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

“(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.”

HSE v  McDermott 2024 [IEHC] 331 held:

“14. In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention "to which the complaint relates." As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the maimer in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning "on the date of the contravention to which the complaint relates", the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

Depending, of course, on the manner in which the complaint is framed, only complaints which "relate" to the last six months (or, if the Rights Commissioner is satisfied that there are "exceptional circumstances" which prevented the bringing of the complaint, twelve months) prior to the presentation of the complaint to the Rights Commissioner will not be time-barred.

The Complaint Form was received by the Workplace Relations Commission on 11 September 2024 which claimed the Complainant should have been paid the sum of €4,837.25 by the Respondent on 4 July 2024.  Therefore, date of contravention on which the complaint relates is 4 July 2024. 

It was the Complainant’s evidence that from 26 April 2024 he refused to work beyond his contracted hours of 40 hours per week where it was his position travel time to and from the site amounted to “working time”.

The contract of employment provides for a biweekly pay period in arrears.

Therefore, applying the Judgment in HSE v McDermott, the Complainant must demonstrate the wages of €4,837.25 were due to be paid in the 12 July 2025 payslip which shown a payment of €902.26. Where there was evidence that the Complainant did outline the calculation was due to time spent driving to and from the sites, there was no breakdown from the Complainant as to how the sum of €4,837.25 was calculated.  

Substantive matter

Section 1 of the Payment Wages Act 1991

"wages", in relation to an employee, 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,

(vi) any payment by way of tips or gratuities”

Section 1 of the Organisation of Working Time Act 1994 defines “working time” as

“working time” means any time that the employee is— (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying on or performing the activities or duties of his or her work, and “work” shall be construed accordingly.”

The Complainant’s contract of employment provided for a 40 hour week from Monday to Friday. It also requires employees to be flexible in their start and finish times necessary for the performance of his duties. The contract also refers to the expectation that the Complainant work a “professional day” so your working hours may not be limited to these hours”.

It was the Complainant’s evidence that from 26 April 2024 he refused to work beyond his contracted hours of 40 hours per week. It was the Respondent’s evidence that overnight accommodation was provided to the Complainant, but he chose not to avail of this. This would have significantly reduced the working day.

Relying on the decision in Ignacok v Caspian B.M.P Limited Caremark Galway, ADJ-00043205 where it was held; “The [t]ime spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act.”

I find the complaint is not well founded.

I find the complaint is not well founded.