ADJ-00016542

Complainant

Respondent

Anonymised Parties

A Façade Fitter

A Construction Sub-contractor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015.

CA-00021523-001

02/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021523-002

02/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015.

CA-00021523-003

02/09/2018

The respondent company installed windows and façades on buildings under construction. The complainant commenced employment on September 10th 2017 and his employment was terminated on August 10th 2018.

From the date he commenced employment on September 10th 2017, the complainant said that he was paid €17.60 per hour. In January 2018, his hourly rate increased to €18.36 per hour, which is the rate set out in the Sectoral Employment Order (Construction Sector) 2017 (SEO).   This rate of pay came into effect on October 19th 2017. The complainant claims that he was entitled to be paid the SEO rate of €18.36 per hour from October 19th 2017 and that he is owed the shortfall of 76 cents per hour for the hours worked from October 19th until December 31st.

On his complaint form, the complainant indicated that his weekly pay was €756. I have reached my findings in this decision on the basis that, from January 2018, the complainant was paid €18.96 for 41 hours each week (€756 ÷ €18.36) and that his wages were paid on the basis of a 41-hour week. However, while he was employed by the respondent, the complainant said that he generally worked around 46 hours per week and that he was never paid overtime.

The respondent did not attend the hearing.

Hourly Rate of Pay in the SEO

On the basis of the uncontested evidence of the complainant, I find that, for a period of 11 weeks from October 19th until December 31st 2017, he was not paid the correct hourly rate of pay of €18.36 that applies to a Category 2 worker in the SEO. As he worked was paid for 41 hours per week, he suffered a shortfall of 76 cents per hour for 451 hours (11 weeks @ 41 hours per week), a total of €342.76.

Overtime Rate SEO

With respect to his complaint about not being paid for overtime, as the respondent did not attend the hearing, I accept the evidence of the complainant. The complainant said that he worked an average of 46 hours per week and that he was not paid for overtime.

The SEO provides that overtime is paid as follows:

Monday to Friday normal finishing time to midnight:   Time plus a half.

Monday — Friday midnight to normal starting time:   Double time.

Saturday - First four hours from normal starting time:   Time plus a half.

Saturday - All subsequent hours after the first four hours until midnight: Double time

Sunday - All hours worked: Double time.

Public Holidays - All hours worked: Double time plus an additional day’s leave.

I have decided to assume that all the hours worked by the complainant as overtime fall into the time plus a half category.

Overtime from September – December 2017

If the complainant worked an average of 46 hours per week, it follows that he worked an average of seven hours per week as overtime.

From his start date on September 10th 2018 until December 31st 2017, a period of 16 weeks, the complainant said that he was paid €17.60 per hour.   For the final 11 of these 16 weeks, he should have been paid €18.36 per hour.

Overtime in the First Five Weeks

As he was paid for 41 hours per week at a flat rate, he has suffered a shortfall of €8.80 per hour (17.60 ÷ 2) for 2 hours and €26.40 per hour (€17.60 at time plus a half) for five hours each week for 5 weeks.

5 weeks @ 2 hours = 10 hours. 10 hours @ €8.80 = €88.80

5 weeks @ 5 hours = 25 hours. 25 hours @ €26.40 = €660

The complainant’s loss of overtime pay for the first five weeks of his employment to €748.80.

Overtime from October 19th 2017 until August 10th 2018

From October 19th 2017 until his last day at work on August 10th 2018, a period of 44 weeks, the complainant said that he was not paid for overtime and that, on average, he worked seven hours’ overtime per week.

As he was paid for 41 hours per week at a flat rate, he has suffered a shortfall of €9.18 per hour (18.36 ÷ 2) for 2 hours and €27.54 per hour (€18.36 at time plus a half) for five hours each week for 44 weeks.  

44 weeks @ 2 hours = 88 hours. 88 hours @ €9.18 = €807.84

44 weeks @ 5 hours = 220 hours. 220 hours @ €27.54 = €6,058.80

The complainant’s loss of overtime pay from October 2017 until his last day at work on August 10th 2018 therefore amounts to €6,866.64.

I find that the complainant’s complaints about the pay provisions of the SEO are upheld. Taking the combined shortfall in pay into account, I decide that the respondent is to pay the complainant €7,958.20.

The complainant said that, at the termination of his employment, he had two weeks of holidays not taken and that he was not paid for these untaken holidays.

The respondent did not attend the hearing.

Based on the uncontested evidence of the complainant, I find that, at the termination of his employment, he was entitled to pay for two weeks’ holidays that he did not take in 2018.

As I have found that this complaint is upheld, I decide that the respondent is to pay the complainant €1,432.08 (78 hours @ €18.36).

This is a complaint that the respondent did not comply with section 3(1) of the Terms of Employment (Information) Act 1994 as he failed to provide the complainant with a written statement of his terms and conditions of employment. The complainant said that he asked the respondent’s director for a statement of his terms and conditions but that he never received one.

This complaint has been submitted under the Workplace Relations Act 2015, whereas a complaint about a statement of terms and conditions should be submitted under the Terms of Employment (Information) Act 1994. I find that this was an error on the part of the complainant, as he was not a member of any union and had no legal advice prior to completing the complaint form. I have decided to consider this complaint under the appropriate statute, which is the Terms of Employment (Information) Act.

The respondent did not attend the hearing.

Section 3 of the Terms of Employment (Information) Act provides that, within two months of the commencement of an employee’s employment, they must get a written statement setting out their terms and conditions of employment. Generally written up in the form of a contract, these statements are to include the following:

(a) The name of the employer and the employee;

(b) The address of the employer;

(c) The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d) The job title or the nature of the work that the employee is required to carry out;

(e) The date that the employees commences in the job;

(f) If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g) The rate or method of calculation of the employee’s pay;

(h) The frequency of pay;

(i) Any terms or conditions relating to hours of work (including overtime);

(j) Any conditions relating to paid leave (other than paid sick leave);

(k) Any terms or conditions relating to –

       (i) Incapacity for work due to sickness or injury and paid sick leave;

       (ii) pensions and pension schemes;

(l) The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m) Details of any collective agreement which affects the employee’s terms and conditions of employment.

From the evidence of the complainant and his union representative, it is apparent that the respondent in this case ignored his legal responsibilities to this employee with regard to his entitlement to a written statement setting out his terms and conditions of employment. At a minimum, the respondent should have given the complainant a copy of the SEO which applies to employees in the construction sector. The effect of not doing so is to tarnish the employment relationship with uncertainty and to make it difficult for the employee to assert his rights during, and at the termination of his employment. This is precisely what the enactment of the Terms of Employment (Information) Act 1994 is intended to avoid.

As he worked for the respondent for 11 months, the duration of the illegality was therefore nine months. I decide that the respondent is to pay the complainant compensation of €1,432.08, equivalent to two week’s pay.

CA-00021523-001: €7,958.20       Reason: Failure to pay the correct hourly rate and overtime

CA-00021523-002: €1,432.08       Reason: Failure to pay holiday pay

CA-00021523-003: €1,432.08        Reason:   Failure to issue a statement of terms of employment

Total award:             €10,822.36

Sectoral Employment Order (Construction Sector) 2017