ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00006611
Parties:
| Complainant | Respondent |
Anonymised Parties | A construction site manager | An employment agency |
Representatives | None | Warren Parkes Solicitors |
Complaints and dispute:
Act | Complaint & Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00008818-001 | 16/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00008818-002 | 16/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00008818-003 | 16/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00008818-005 | 16/12/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00008818-006 | 16/12/2016 |
Date of Adjudication Hearing: 19/07/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 16th December 2016, the complainant referred complaints and a dispute to the Workplace Relations Commission. They were scheduled for adjudication on the 19th July 2017. The complainant attended the adjudication. The respondent agency was represented by Warren Parkes Solicitors and one witness attended on its behalf.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The complainant worked as site manager on a construction site between the 20th August 2016 and the 24th November 2016. He has referred five complaints and one dispute, naming the construction firm as the respondent. The employment agency attended the adjudication and stated that it was the proper respondent to the issues raised by the complainant. |
Summary of Complainant’s Case:
The complainant outlined that he was not provided with a contract or statement of the terms of his employment. He sought this from the agency and the construction firm. He raised this in meetings and in phone calls, but no statement was forthcoming. After having pursued this, the complainant gave a week’s notice and resigned. His employment commenced on the 20th August 2016 and came to an end on the 24th November 2016. In an email of the 23rd November 2016, the complainant indicates that the “resolution” of the pay issue offered by the agency was not acceptable and that he would be finishing up his employment. In further correspondence of the same date, the complainant sets out financial terms of a role as “Senior Site Manager / General Foreman”. The following day, the complainant indicates that he is not a member of the site team.
In an email of the 8th December 2016, the complainant indicates that the common law contract was between him and the construction company. The complainant outlined that the construction firm should be the respondent. He submitted that this was because after 60 days, an agency worker became the responsibility of the hirer. He had been contracted by the agency to provide cover on a different project. He was then interviewed for the site operated by the construction firm. The role was advertised by the agency. He understood that after a probation period, he would be provided with a contract from the construction company, but this did not happen. The complainant did not believe he was an agency worker. He outlined that he had two meetings with the agency. He had been on probation with the agency until the construction company would take him over
The complainant outlines that he did not receive paid annual leave taken on the 26th, 27th, 28th and 31st October 2016. He worked for a quarter of a year and was therefore entitled to five days of annual leave.
The first complaint pursuant to the Protection of Employees (Temporary Agency Work) Act relates to his rate of pay. The complainant was paid an hourly rate €3 lower than others in a similar position. He had initially been on a skeleton package prior to moving to the construction firm’s site. He was paid €17 per hour but did not mind until he got the “holy grail”. The complainant contacted the agency and they discussed the rate of pay for site managers. The agency said that managers received €22 per hour. The complainant said that the rate of €17 per hour was insulting and he expected €22.50 per hour as a site manager on an agency contract.
The second agency work complaint relates to not being informed of a vacant position with the hirer. He was promised a job with certain conditions. The advertisement posted by the agency stated, “generous pay, immediate start, career potential.” The construction firm told him that he was getting the job. The complainant had raised issues regarding the role and a representative of the construction firm had told him that the role was in limbo as a manager was leaving. The complainant raised the issue of the bonus and was told that no bonuses were being paid. The promised job was not forthcoming. He sent the email of the 24th November 2016 after a phone call from the QS department regarding shortfalls. He said that this was strange as he had raised the issues. The complainant said that he then upped and left.
The complainant asked whether he should have become a “[construction firm] man” after 60 days. He had been interviewed by the construction firm and was never told he was working for the agency. He had to work more hours than his 39-hour week. He said that he had never seen the statement presented at the adjudication and this was just a piece of paper. He never signed it and was never informed of the lunch allowance. He had spoken with representatives of both the agency and the construction firm regarding going on annual leave. He said that he was supposed to be employed by the construction firm. |
Summary of Respondent’s Case:
In submissions, the respondent exhibits a contract of employment naming the agency as the employer and the complainant as the employee. This is signed on behalf of the agency and dated the 11th August 2017. It exhibits email correspondence between the complainant and the hirer, where the complainant explains why he resigned and offers to continue with the hirer. In correspondence of the 20th June 2017, solicitors for the agency outlined that it is a licenced supplier of labour to the construction industry and placed the complainant with the construction firm. It submits that the agency is the proper respondent to these complaints. In email correspondence of the 23rd November 2016, the agency informed the complainant of the pay issue being resolved and that the complainant’s hourly rate would increase by €2.50. In follow-up correspondence, the agency submits pay-slips for the week ending the 27th October and the 3rd November 2016. They show that the complainant was paid €386.22 for week 33 and €592.68 for week 34.
In evidence, the respondent outlined that the complainant was an agency worker. His salary was paid by the agency. In respect of the Terms of Employment (Information) Act, the complainant was supplied with a contract for the previous site. The complainant started on this site on the 11th August 2016 and moved to the site operated by the construction company. The complainant could not have been offered a permanent contract unless instructed by the client to do so.
The respondent stated that it was clear that the complainant’s role was not a permanent one with the construction firm. The agency secured the hourly €2.50 increase for the complainant. This was the comparator rate of pay the complainant stated in the complaint form. The complainant was also in receipt of a lunch allowance of €5. The complainant was offered the €2.50 increase but he refused. The agency had never promised to make the complainant permanent and he had inferred that he would get a permanent job.
The respondent indicated that the annual leave due to the complainant was paid on the day of the adjudication.
In respect of the first agency claim, the respondent stated that the complainant was offered the increase of €2.50 per hour. The complainant had been paid what the construction firm was paying and was offered a pay rise. There was no promise of a permanent role with the construction firm. He was an agency worker and his recourse was against the agency.
The respondent stated that the contract of employment was posted to the complainant while the pay slips were emailed. It was not relevant to compare the complainant to current staff. |
Findings and Conclusions:
The complainant lodged five complaints and one dispute in respect of his employment on a building site. The complainant was employed between the 20th August and the 24th November 2016. The complainant resigned, citing difficulties with the agency. A complicating factor is that the case is taken against the construction firm and the agency attended the adjudication to meet the claim. I note that two complaints are made pursuant to the Protection of Employees (Temporary Agency Work) Act and this requires the complainant to be an agency worker.
It is clear that the complainant was an agency worker and employed by the agency. This is clear, for example, from the pay slips. The agency attended the adjudication to meet the claim. They are the respondent to the issues raised by the complainant.
CA-00008818-001 This claim is made pursuant to the Terms of Employment (Information) Act. The complainant states that he did not receive the statement presented at the adjudication. This is a document dated the 11th August 2016 and identifies one site and states that this was the complainant’s initial location of work. It provides for assignment to other sites.
As the respondent agency has not been able to show how and when the statement was provided to the complainant, I find for the complainant that he was not provided the statement. I order redress of €1,250.
CA-00008818-002 This is a dispute lodged pursuant to the Industrial Relations Act. The complainant asserts that he was unfairly dismissed. The agency objected to the dispute being heard. For the sake of completeness, I find that the complainant was not unfairly dismissed. He resigned from his employment. While he was dissatisfied in not getting a contract from the construction company and his rate of pay, this does not amount to constructive dismissal. I do not make a recommendation in the complainant’s favour.
CA-00008818-003 This is a complaint pursuant to the Organisation of Working Time Act. The respondent outlined that the complainant was paid for five days annual leave due to him. This occurred on the day of the adjudication. Given the five days’ cesser pay due to the complainant have been remitted to him, I find that the complaint is not well founded.
CA-00008818-005 This is a complaint made pursuant to the Protection of Employees (Temporary Agency Work) Act. The complainant refers to being paid €3 less per hour than other employees. On the 18th July 2017, the agency emailed the hirer asking for the salary earned by its foremen in the period of August to November 2016. The hirer’s reply refers to this being between €40 and €50,000 per annum, depending on experience and contract duration. Including the daily lunch allowance of €5, the complainant received weekly gross remuneration of €688. This equates to €35,776, indicating that the complainant was paid less than comparable hirer site managers and foreman. The complaint is, therefore, well founded. In assessing redress, I note that in November 2016, the respondent offered the complainant a pay rise that would have taken him over the €40,000 per year mark. I note that the respondent did not comply with its obligation pursuant to section 6 to provide the same basic working and employment conditions, including pay. The complainant incurred a shortfall in pay in his time working for the respondent and I award redress of €1,500.
CA-00008818-006 This is a complaint made pursuant to the Protection of Employees (Temporary Agency Work) Act. This relates to not being informed of a vacant position with the hirer. While the complainant believed that he would be appointed to a role with the hirer, there is no evidence of an actual vacant position. The complaint is, therefore, not well founded. |
Decisions and Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00008818-001 I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €1,250.
CA-00008818-002 Pursuant to the Industrial Relations Act, I do not make a recommendation in favour of the complainant/worker as he was not unfairly dismissed.
CA-00008818-003 I find that the complaint made pursuant to the Organisation of Working Time Act is not well founded as the complainant has been paid the monies owed.
CA-00008818-005 I find that the complaint made pursuant to the Protection of Employees (Temporary Agency Work) Act is well founded and the respondent shall pay to the complainant redress of €1,500.
CA-00008818-006 I find that the complaint made pursuant to the Protection of Employees (Temporary Agency Work) Act is not well founded.
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Dated: 2nd July, 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Terms of Employment (Information) Act / section 3 Organisation of Working Time Act / annual leave Protection of Employees (Temporary Agency Work) Act / section 6 |