Case Number: ADJ-00000719. Workplace Relations Commission

• Docket Number: ADJ-00000719
• Date: 02 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000719

Complaint(s)/Dispute(s) for Resolution:

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-00001072-001	24/11/2015

Date of Adjudication Hearing: 25/01/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submitted in evidence that he had been employed by the respondent as an apprentice plumber from 31 August 2015 until the 30^th October 2015. He was never given a written contract of employment nor did he receive any payslips during his period of employment. He was paid weekly in arrears, by EFT to his bank account. His net weekly pay amounted to €220.12.

On 29 October the complainant worked the morning as normal but attended for interview with Solus, about an apprenticeship scheme. The respondent was aware that the complainant was to attend this interview.

On the morning of 30 October the complainant received a text message from the respondent which read, "Morning name. There's not much going on next week I'm waiting for confirmation on a couple of jobs so I have nothing for you. I'll keep you posted if anything comes in. Wages will be paid for back week and all that. Thanks name."

I was shown a text message by the complainant as above. In response to this text message the complainant texted the respondent enquiring about overtime pay that he was due. The respondent, in reply text message, told the complainant to go to the office and submit his overtime sheets. A sample overtime sheet was admitted. The complainant estimates that he was due 12 hours in overtime. He was also due €220.12 in basic pay, his weekly pay in arrears.

Payment was not forthcoming. The complainant phoned the office several times but his calls were not answered. Eventually he decided to file a complaint with the WRC.

Respondent’s Submission and Presentation:

The respondent was not present and no written submission was available.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Was the complainant an employee of the respondent?

Were the deductions of €202.12 basic pay and 12 hours overtime pay legal deductions?

Legislation involved and requirements of legislation:

Definitions of contract of employment and employee are important in this case.

The Act defines a contract of employment as:

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

The Act defines an employee as:

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as...