ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000507

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

Date of Adjudication Hearing: 11/03/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the above mentioned Act, 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 submits that the respondent refused to pay him for his attendance at a training course to ensure statutory compliance with health and safety legislation. The complainant is a scaffolder whose employment is embraced within the provisions of the Safety, Health and Welfare at Work (Construction) Regulations 2013 (S. I. No. 291 of 2013). S. 5 of the Regulations sets out the specifics of the certification requirements and the training was undertaken for compliance purposes. The complainant was required to pay for the time off to attend the course by reimbursing the respondent in either of two ways viz. by taking 7 days of annual leave or alternatively by way of €50 deduction per week for a period of 12 weeks. In advancing his argument the complainant relies on the provisions of the s. 10 (4) of the Safety Health and Welfare at Work Act, 2005 – “Where in respect of any particular work, competency requirements are prescribed, the employer shall provide for the release of the employees, during working hours, where appropriate and without loss of remuneration for the purpose of attending training in matters relating to safety health and welfare at work as regards the particular work”.

It is submitted that the respondent is in flagrant breach of the provision and that in all of the herein circumstances the complainant be reimbursed losses incurred to include any expenses normally paid for travel off site and that a compensation based on the principle set out in Von Colson should apply.

Respondent’s Submission and Presentation:

The respondent submits that in 2010 the UK scaffolding card was recognised in Ireland. This was confirmed by Solas in 2011. A client pointed out to the contrary in 2015 and it was established that recognition was subject to 2 years continuous employment experience in scaffolding in the certifying state. The complainant and two colleagues did not have the requisite continuous experience and employment in the UK. It was imperative that they would receive the local certification in these circumstances and arrangements were made to provide the same on the basis that they would pay for the training.

Decision:

I note at the outset that I have not received a complaint under the Safety Health and Welfare at Work Act, 2005 nor has a complaint been lodged to the proper authority under the Regulations of 2013. Furthermore I note that the suggestion by the respondent that the complainant would use his statutory annual leave entitlement to offset the cost of the training would had it been accepted by the complainant and implemented by the respondent have amounted in my opinion to a material breach of the Organisation of Working Time Act, 1997 and therefore subject to compensatory redress in line with the principle established by the ECJ in the Von Colson judgement.

That said I am satisfied that the onus rests with the respondent in the circumstances described to provide the training to the respondent in line with the provisions set out at s. 10 (4) of the aforementioned statute.

Therefore I find for the complainant and I hereby require that the respondent repay the amount recouped and pay expenses in accordance with its normal practice as appropriate (off-site attendance) to fully comply with the requirements of the relevant statute. To award compensation as petitioned in this case would offend the spirit of the Act and contravene established practice.

Dated:   25^TH May 2016