Edmund Lavin Services Ltd (Represented by Gilvarry & Associates) v Mr Malachy McDonnell (Represented by Mr John Curran)

• Jurisdiction: Ireland
• Judgment Date: 06 March 2020
• Judgment citation (vLex): [2020] 3 JIEC 0611
• Date: 2020
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.PWD2015 ADJ-00019667 CA-00026091-002
• Court: Labour Court (Ireland)

PARTIES:

Edmund Lavin Services Ltd (Represented by Gilvarry & Associates)

and

Mr Malachy McDonnell (Represented by Mr John Curran)

FULL RECOMMENDATION

PW/19/89

DETERMINATION NO.PWD2015

ADJ-00019667 CA-00026091-002

Labour Court

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Ms Connolly

Worker Member: Ms Treacy

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No(S). ADJ-00019667 CA-00026091-002.

BACKGROUND:

2 2. The Employee appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on the 10 December 2019. The Court heard the appeal on the 27 February 2020.

DETERMINATION:

3 This is an appeal on behalf of Mr Malachy McDonnell from a decision of an Adjudication Officer ADJ-00019667, CA-00026091-002 under the Payment of Wages Act 1991 (‘the Act’) against his former employer Edmund Lavin Services Limited. The claim was referred to the Workplace Relations Commission on 6 February 2018. A hearing was held on 2nd September 2019 and the Decision was issued on 19th November 2019. The Notice of Appeal was received by the Court on 10th December 2019.

4 For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Malachy McDonnell will be referred to as “the Complainant” and Edmund Lavin Services Limited will be referred to as “the Respondent”.

5 The Adjudication Officer found in favour of part of his claim and awarded him the sum of €700.00 in respect of a claim that he was not given his appropriate notice entitlement. This aspect of the Complainant's claim was not contested by the Respondent. The Adjudication Officer did not uphold his claim in respect of a claim that he was not paid the correct rate of pay nor paid for overtime worked.

Background

6 The Complainant was employed as a General Operatives by the Respondent from March 2018 until 19 ^th December 2018, working on a major construction site in Longford. The Complainant claimed that he is owed monies due to a failure by the Respondent to pay him an agreed rate of €18.36 per hour and secondly due to the number of overtime hours he worked.

7 The Respondent disputed the Complainant's contentions stating that there was no agreement to pay him €18.36 per hour. He was paid the appropriate General Operative rate of pay, €17.04 per hour. On the second issue, the Respondent said that it correctly applied the terms of the Sectoral Employment Order (SEO) for the Construction Sector, S.I. 455/2017, which stated that an unsocial hours' payment should be paid after “normal finishing times”, and the Complainant did not work in excess of his normal finishing times in the cognisable period covered by the claim.

Summary of the Complainant's Case

8 The Complainant was unrepresented at the hearing. He gave evidence under oath to the Court. He told the Court that his normal working hours were 7.00am to 7.00pm Monday to Friday and 7.00am to 3.00pm on Fridays, earning €17.04 per hour. He said that the Respondent, Mr Edmund Lavin had asked him to come and work for him, so he had left another job to join the company. He said after a few weeks he spoke to Mr Lavin and asked for a higher rate of pay and it was agreed to pay him a Category 2 rate, €18.36 which applies to skilled workers in the construction sector. He said that his rate of pay increased at that point, however, as he was not receiving payslips, he did not know how his hourly rate was calculated. In June 2018 he said that he sought payslips and received four payslips, however, it was not...