Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021003-001

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021003-002

03/08/2018

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

CA-00021003-003

03/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021003-004

03/08/2018

The Complainant was initially employed as an apprentice electrician by the Respondent on 18/09/2017, the employment ended on 19/04/2018.

This complaint was received by the Workplace Relations Commission on 03/08/2018.

Background

The Claimant commenced employment with the Respondent as an apprentice electrician on 18th September 2017.

On 28th March 2018 the Claimant received correspondence from Kildare and Wicklow ETB confirming the completion of his apprenticeship and qualification as an Electrician on 26th March 2018.

On 19th April 2018 the Claimant’s employment was terminated without notice of pay in lieu.

On 2nd July 2018 the Trade Union wrote to the Respondent in an attempt to address the matter.

On 13th October 2018 the Respondent outlined his reason for non-payment.

Unions Argument

Rate of Pay for Electricians Role

The Claimant did not receive the rate commensurate with the role of an Electrician i.e. €21.77 applicable from 27th March 2018 and €22.31 from 31st March 2018. Therefore, a shortfall of €881.60 was accrued through non-payment.

The argument by the Respondent that they did not deem the Claimant as qualified or competent is irrelevant as the competent authority to make such a decision is SOLAS only.

The statutory apprenticeship is governed by very specific pieces of legislation including SI Number 168/1997 – Labour Services Act 1987 – Apprenticeship Rules. The period of apprenticeship is mapped and while it may exceed 208 weeks, no employer has the right to withhold or impede qualifications relative to an apprentice.

Therefore, the Claimant is deemed qualified by SOLAS and not his employer.

Holiday Pay

Upon termination of employment, the Claimant did not receive a payment for outstanding holiday entitlements. He contends that he took annual leave at Christmas time only. The Claimant states that the outstanding payment of €1650.20 is due in respect of holiday pay.

Minimum Notice

As the Claimant did not receive the minimum notice period of one week, it is our contention that payment in lieu should have been made equal to one weeks’ pay or €870.09.

Outstanding Payment for Materials

The Claimant stated that €70.00 was outstanding for payment of a trolley. The Respondent acknowledged this in his letter of 13th October 2018 and stated that it would be paid. This payment may still be outstanding.

Union Claims

The Trade Union respectfully requests that an award be made in favour of the Claimant and that all outstanding payments be made by the Respondent

By letter dated 13/10/2018 and sent to the representative of the Complainant the Respondent makes the following points and these were re-iterated at the hearing of this complaint:

The Complainant was not a qualified electrician and had not been signed off by the Respondent.

The Complainant was not ready to move on to be a qualified electrician and his knowledge of the electrical trade was not up to standard.

On numerous occasions between the months of January and April 2018 the Respondent had said they would not be signing him off as he was a danger to both himself and to others on site and that he was no where near where he needed to be as a 4th year electrician.

When the Respondent discovered that the Complainant had taken it upon himself to send in and sign off on his own papers the Respondent felt that there was no alternative but to let him go.

The Complainant had not been signed off as an electrician by the Respondent and his rate of pay was €16.48 per hour.

In relation to the complaint submitted under the Payment of Wages Act the Respondent did leave the Complainant short of €104.00, this is accepted and was due to the Complainant not completing time sheets, it had been reported to the Respondent that the Complainant was arriving for work at 7.45am and signing in for 7.00am, this happened on numerous occasions. The Respondent has no problem paying this amount to the Complainant once they have the timesheets submitted in a proper manner.

In relation to holidays the Complainant had three days leave over the Christmas period i.e. 27th, 28th and 29th December 2017. With the bad weather conditions early in 2018 three days were deemed to be holidays i.e. 28th February 2018 and the 1st and 2nd of March 2018. The Respondent accepts that there are two days holidays due to the Complainant.

There is acceptance that the Complainant is owed €70 for items purchased by the Complainant.

By letter dated 28th March the Complainant was notified that SOLAS had approved the completion of his apprenticeship to the trade of Electrical on 26th March 2018. This letter goes onto inform the Complainant that his Advanced Certificate -Craft will be issued in due course. I interpret this letter as notification that his apprenticeship ended on 26th March 2018.

If the Respondent had reservations in relation to his competence, they do not appear to have done anything about it. There are methods and processes that can be used to address capability and/or performance issues in the workplace.

Employers must comply with the statutory obligations imposed by the Industrial Training Act, 1967 (as amended), and any Apprenticeship Rules (which may apply in relation to the relevant Apprenticeship Programme from time to time).

These statutory obligations are contained within a Code of Practice for Employers and Apprentices issued by SOLAS; section 8 of this Code of Practice outlines the Employer Obligations, these are as follows:

a) Apply to SOLAS through their local ETB, for approval to train apprentices for a specific statutory apprenticeship.

b) Notify their local ETB within two weeks of an apprentice commencing employment. Within two weeks of an apprentice commencing employment the employer must submit to the ETB an

application for the registration of the apprentice as a statutory apprentice.

c) Ensure that the apprentice meets the minimum entry requirements specified in the applicable Apprenticeship Programme.5

d) Be familiar with and implement the applicable Apprenticeship Programme.

e) Ensure that the apprentice is released to attend the mandatory apprenticeship induction presentation.

f) Train the apprentice in the required on-the-job elements of the Apprenticeship Programme and ensure that the apprentice has access to the full range of work specified for the on-the-job elements of the Apprenticeship Programme.

g) Provide access for the apprentice to the appropriate equipment, tools and resources to facilitate the required assessments for the on-the-job elements of the Apprenticeship Programme. If the employer cannot do so within the time allocated for completion of on-the-job assessments, the employer must arrange, in consultation with its assigned SOLAS authorised officer, to have the apprentice trained with another SOLAS approved employer for that curriculum item(s).

h) Provide the apprentice with the opportunities to practice elements of the Apprenticeship Programme under supervised conditions while having regard to the apprentice's skill level at the time the task is being undertaken.

i) Employ a person qualified in the occupation to which the Apprenticeship Programme relates who has been approved by a SOLAS authorised officer to act as a mentor and/or assessor/verifier to his/her assigned apprentices for the on-the-job elements of the apprenticeship, in accordance with the quality assurance requirements set out in the Apprenticeship Programme, including, where

appropriate, completing the SOLAS-approved Assessor/Verifier Programme.

j) Ensure all on-the-job assessments are conducted in a fair and consistent manner and in accordance with the quality assurance requirements set out in the Apprenticeship Programme.

k) Ensure that all on-the-job training assessment results are returned to the SOLAS authorised officer or the relevant Programme Board, as appropriate, as per schedule when the apprentice has reached the qualifying standard required in the Apprenticeship Programme.

l) Release the apprentice for the off-the-job training elements of the Apprenticeship Programme on the dates and to the location as notified.

m) Communicate, co-operate with and support, as appropriate, SOLAS, the consortium relevant to the Apprenticeship Programme and the off the- job training provider(s) (e.g. ETB Training Centre, Institute of Technology, College of Further or Higher Education) or as otherwise

required by SOLAS to ensure that the apprentice receives the training

specified in the Apprenticeship Programme.

n) Ensure on-the-job training and assessment records, as defined in the applicable Apprenticeship Programme are maintained for each apprentice and retained for a period of seven years from the end of the apprenticeship and that SOLAS authorised officers or such other persons as SOLAS may direct shall have access to these records when required.

o) Afford every assistance and co-operation to SOLAS and SOLAS authorised officers in the statutory monitoring of apprenticeship, including granting access to copies of all appropriate documentation

connected with apprenticeship and to an apprentice's place of work. Monitoring visits will be undertaken by authorised officers appointed by SOLAS to ensure that the apprentice is properly trained and confirming the employer’s continued suitability to train.

p) Afford every assistance and co-operation to the Apprenticeship Programme Board, in the administration of the Apprenticeship programme.

q) Regularly communicate with the apprentice and his/her workplace mentor and/or assessor/verifier to monitor how the apprentice is progressing.

r) Be proactive in reviewing the apprentice's progress and provide support, advice and encouragement to the apprentice throughout the apprenticeship.

s) Furnish a report to the SOLAS authorised officer or, where applicable, SOLAS, on the apprentice's training programme/progress (if requested), in particular where an assessment appeal has been

requested by the apprentice.

t) Ensure that the apprentice receives appropriate training and information on the requirements of the Safety, Health and Welfare at Work Act 2005 and any regulations and codes of practice made

thereunder.

u) Contact the SOLAS authorised officer in writing at least two weeks prior to the introduction of any short-time working arrangements for apprentices. Any such short-time working arrangements must be approved in advance by the SOLAS authorised officer. Approved short-time working of up to 6 weeks in any 12 month period will count as full weeks towards completion of the Apprenticeship Programme.

Any approved short-time working time in excess of 6 weeks in any 12 month period will only count towards completion of the Apprenticeship Programme on the basis of the actual number of full

training days completed and will lead to an extension in the minimum period required to complete an apprenticeship. (A “training week” is 5 days and a “training day” is a minimum of 7.8 hours.) If an apprentice is on short-time, the employer is required to submit a copy of the OWT 1 Form(s) or substantially similar forms to the SOLAS authorised officer on completion of the approved period of short-time working.

v) Contact the SOLAS authorised officer in writing prior to terminating the employment contract with an apprentice (for any reason, including redundancy). Employers must also take all reasonable steps to have their obligations in connection with apprenticeship transferred to another employer in the case of redundancies. An employer is not permitted to register a new apprentice with SOLAS unless the employer has first offered the role to any SOLAS apprentice made redundant by the employer within the past 12 months.

w) Contact the SOLAS authorised officer within 2 weeks of any of the following occurrences:

i. Placing an apprentice on temporary lay-off

ii. An apprentice going on maternity, adoptive, carer's or parental leave or other period of statutory protective leave

iii. An apprentice being on sick leave for more than 6 weeks (in a 12 month period).

In particular I would draw attention to clause i which reads as follows:

i) Employ a person qualified in the occupation to which the Apprenticeship Programme relates who has been approved by a SOLAS authorised officer to act as a mentor and/or assessor/verifier to his/her assigned apprentices for the on-the-job elements of the apprenticeship, in accordance with the quality assurance requirements set out in the Apprenticeship Programme, including, where

appropriate, completing the SOLAS-approved Assessor/Verifier Programme.

If the Respondent had misgivings regarding the competence of the Complainant I find that this is a reflection, not just on the Complainant, but a more serious reflection on the Respondent vis- a- vis the quality of the on-the-job training provided to the Complainant by the Respondent.

The Respondent’s only comment at hearing was that the Complainant would not listen to senior people on site. The Respondent made no reference at the hearing to any actions they may have taken to address any performance issues with the Complainant.

The bottom line in this complaint is that we have a Respondent who is saying that the Complainant is not qualified and we have SOLUS who have issued a certificate of qualification to him.

In this situation I have to find in favour of the Complainant, any actions the Respondent took appear to be ‘after the event’.

Complaint CA – 00021003 – 002. Payment of Wages Act, 1991.

The Representative of the Complainant has calculated an underpayment of €881.60. Under the Payment of Wages Act, 1991 I now order the Respondent to pay this amount to the Complainant.

Complaint CA – 00021003 – 002. Payment of Wages Act, 1991.

The Complainant alleges that the sum of €104.00 was deducted from his wages.

This sum should now be paid to the Complainant.

Complaint CA – 00021003 – 003. Organisation of Working Time Act, 1997.

Upon termination of employment the representative for the Complainant states that the Complainant is due €1,650.20. The Respondent accepts that two days holiday pay are due and that three days of inclement weather were deemed to be holidays.

I now order the Respondent to pay the Complainant 5 days holiday entitlement and these should be calculated at the hourly rate of €22.31 per hour (22.31 x 39 = €870.09)

Complaint CA – 00021003 – 004.

Under the Minimum Notice and Terms of Employment Act, 1973 the Complainant is entitled to one weeks’ notice or payment in lieu thereof.

I now order the Respondent to pay the employee the sum of one weeks pay in lieu of notice (22.31 x 39 = €870.09).

All awards should be paid to the Complainant within 42 days from the date of this decision.

Decision as outlined above.