ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017191
Parties:
| Complainant | Respondent |
Anonymised Parties | A Painter | A Painting & Decorating Company |
Representatives | Des Courtney, SIPTU |
|
Complaints:
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-00022201-001 | 27/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00022201-002 | 27/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022201-003 | 27/09/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00022201-004 | 27/09/2018 |
Date of Adjudication Hearing: 14/01/2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a hearing on January 14th 2019 at which I inquired into the complaints and gave the parties an opportunity to be heard and to present evidence relevant to the complaints.
The complainant was represented by Mr Des Courtney of SIPTU. For the respondent, the managing director attended and gave evidence.
Background:
The complainant is a time-served painter and he joined the respondent company on April 4th 2018. He was dismissed after six weeks on May 17th 2018. |
CA-00022201-001
Section 41 of the Workplace Relations Act 2015
Summary of Complainant’s Case:
Hourly Rate For the six weeks that he was employed by the respondent, the complainant was paid €17 per hour. The rate of pay that applies to craft workers, as set out in the Sectoral Employment Order (Construction Sector) 2017 is €18.93. Pension In his submission on behalf of the complainant, Mr Courtney said that his former employer did not register him with the Construction Worker’s Pension Scheme and that no pension contributions were paid in his behalf. |
Summary of Respondent’s Case:
Hourly Rate For the respondent, the company director who attended the hearing said that, when the complainant was recruited, he accepted an offer of work as a painter for €17 per hour. The director said that this is the rate for general operatives. The complainant was recruited through Seetec, an agency working in partnership with the Department of Social Protection to support unemployed people to take up work. The director said that his company informed Seetec that the rate for the job that the complainant was offered was €17 per hour. Pension No evidence was presented at the hearing to show that the complainant was enrolled in the Construction Workers’ Pension Scheme (or any scheme). As a result, it is evident that no pension contributions were made on his behalf. |
Findings and Conclusions:
Hourly Rate As a qualified painter, the complainant was entitled to be paid the minimum rate that applies to craft workers which is currently €18.93 per hour. As he was paid €17 per hour for the six weeks that he was employed by the respondent, I find that he was underpaid by €1.93 per hour for 240 hours (6 weeks @ 40 hours per week). Pension The provisions of a pension scheme agreed between the Construction Industry Federation and the construction trade unions is at Appendix 1 of the Sectoral Employment Order (Construction Sector) 2017. This provides that, for employees whose employment is governed by the SEO, a contribution of €26.63 is to be paid every week by an employer, with the employee contributing €17.76. As a construction worker, the employee in this case was entitled to become a member of the Construction Workers’ Pension Scheme and his former employer was obliged to submit weekly contributions of €26.63 on his behalf. It is apparent that he was not enrolled in the pension scheme and no contributions were submitted on his behalf. It is of concern that this respondent failed to co-operate with a scheme supported by the association representing his industry. The Construction Workers’ Pension Scheme is a long-established and reputable pension scheme and its purpose is to enhance the income of workers in the sector in their retirement, and to facilitate employers so that they do not have to set up their own schemes. It is not acceptable for the respondent not to take advantage of the convenience of the scheme and make contributions for his workers. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Hourly Rate As this complaint is well-founded, I decide that the respondent is to pay the complainant €463.20, which is the shortfall in the amount that he should have been paid when he was working for the respondent from April 4th until May 17th 2018. I have arrived at this figure by taking the number of hours worked over six weeks, 240 hours, and multiplying this by €1.93, the shortfall in the hourly rate. Pension As the complainant worked for the respondent for six weeks, he has missed out on employer contributions of €159.78 (26.63 x 6). I decide therefore that the respondent is to pay the complainant €159.78 in lieu of unpaid pension contributions. |
CA-00022201-002
Section 7 of the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The complainant did not receive a statement of his terms and conditions of employment. |
Summary of Respondent’s Case:
No evidence was produced which indicated that the complainant received a statement of his terms and conditions of employment. |
Findings and Conclusions:
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. As the complainant had less than two months’ service with the respondent, before the expiry of two months, there was no legal obligation on his employer to provide him with a statement of his terms and conditions of employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Due to the fact that the complainant had completed less than two months’ service at the time of his dismissal, I have no jurisdiction to consider this complaint and it is not upheld. |
CA-00022201-003
Section 27 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
This is a complaint about the fact that, for the duration of his employment with the respondent, the complainant did not take any holidays and, when his employment was terminated, he did not receive any holiday pay. |
Summary of Respondent’s Case:
No evidence was presented at the hearing to show that the complainant was paid his entitlement to holidays. |
Findings and Conclusions:
The complainant worked for the respondent for six weeks. In accordance with section 19(1)(c) of the Organisation of Working Time Act 1997, as holidays, he is entitled to 8% of the hours he worked before the termination of his employment. As he worked for six weeks for 40 hours each week, I find that he is entitled 19.2 hours’ pay as holiday pay ((6 x 40 = 240) x .08). |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is well-founded. In respect of his failure to pay him for holidays not taken, I have decided that the respondent is to pay the complainant €363.45 as holiday pay (19.2 x 18.93) In accordance with Section 27(3)(c) of the Organisation of Working Time Act, I also decide that the respondent is to pay the complainant €190 as compensation for this breach of the Act. |
CA-00022201-004
Section 27 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
One public holiday fell during the tenure of the complainant’s employment with the respondent on Monday, May 7th 2018. While he was paid for this day, the union argues that he was paid the incorrect rate of pay, €17 per hour instead of €18.93 per hour. |
Summary of Respondent’s Case:
The respondent’s evidence was that the complainant accepted the job of painter at a rate of €17 per hour. |
Findings and Conclusions:
As I have concluded that the complainant was not paid the appropriate hourly rate, I must therefore find that he was not paid the correct rate of public holiday pay for the public holiday that fell during the course of his employment with the respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
As he suffered a shortfall in his hourly rate of €1.93 per hour for eight hours on Monday, May 7th, I have decided that the respondent is to pay the complainant the shortfall of €15.44 (8 hours x 1.93). In accordance with Section 27(3)(c) of the Organisation of Working Time Act, I also decide that the respondent is to pay the complainant €125 as compensation for this breach of the Act. |
Summary of Awards:
For the avoidance of doubt, I have summarised below the awards made under each complaint heading.
CA-00022201-001: €463.20 + €159.78 = €622.98Reason: Compensation for shortfall in the rate of pay & non-payment of pension contributionsCA-00022201-002: No award is madeCA-00022201-003: €553.45Reason: Compensation for failure to pay for annual leaveCA-00022201-004: €140.44Reason: Compensation for failure to pay correct public holiday payTotal award: €1,316.87 |
Dated: April 29th 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Sectoral employment order |