FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONWAY BROTHERS SLIGO LIMITED - AND - A WORKER (REPRESENTED BY EDDIE DAVENPORT) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Alleged unfair dismissal.
BACKGROUND:
2. The worker was employed by the Company in August, 2001. The Company claims it employed him at the behest of his father who was site foreman. His basic hourly rate was agreed at €9.52 per hour. He claims that he was unfairly dismissed in April, 2002. Among the worker's complaints was that he was not paid overtime or double time for a 50 hour week, his pension scheme was not paid up to date and he was not supplied with safety boots. The Company's case is that the worker agreed the rate of pay and that, whilst he may have been on site for 50 hours per week, he was not working all the time.
The worker referred his cast to the Labour Court on the 15th of October, 2002, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd of September, 2003, in Sligo, the earliest date suitable to the parties. The worker did not attend the hearing but was represented by his father. He agreed to be bound by the Court's recommendation.
WORKER'S ARGUMENTS:
3. 1. The worker worked, on average, 50 hours per week but was not paid overtime.
2. The worker believes that he was dismissed for personal reasons, in that his father, who was foreman, left the Company in March, 2002, and would not return. The worker was dismissed shortly afterwards.
COMPANY'S ARGUMENTS:
4. 1. The rate of pay was agreed between the worker, his father and the Company. The Company considerd it excessive in terms of the worker's contribution. He was taken on as a favour to his father.
2. The worker was never requested to do, and never did, overtime. The reason he was on site for so long is that he was waiting for a lift home from his father.
3. Evidence from the Construction Industry Federation shows that pension contributions were paid on behalf of the worker in 2002.
RECOMMENDATION:
The Court is satisfied that the conditions of employment now complained of were agreed between the claimant and his now representative who, at the material time was the employer's foreman. Throughout the period of his employment, neither the claimant or his representative made any formal complaint regarding these conditions. The Court further notes that the claimant did not attend the Court nor did he make the complaints personally. In these circumstances, the claim before the Court has little merit from a normal industrial relations perspective.
However, the employer and the claimant are encompassed by the Registered Employment Agreement for the Construction Industry (REA) and in applying the conditions of employment at issue, the employer may have contravened that Agreement. Moreover, the REA gives the claimant a statutory right to conditions of employment which are no less favourable than those prescribed by the Agreement. These are matters which the Court cannot overlook.
The Court recommends that the claimant's pay and conditions of employment be recalculated in respect of his period of employment so as to conform with the conditions prescribed by the REA at the material time.
Signed on behalf of the Labour Court
Kevin Duffy
18th September, 2003______________________
MB/CON.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.