Complainant

Respondent

Anonymised Parties

A Bricklayer

A Construction Company

Representatives

BATU

CIF

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015.

CA-00020676-001

20/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00020676-002

20/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015.

CA-00020676-003

20/07/2018

The complainant worked on a building site in south Dublin on Thursday and Friday, June 14th and 15th 2018. He claims that he was dismissed on Monday, June 18th, when he refused to work under a contract known as “RTC” or “ERTC” which refers to “Relevant Contract Tax” and “Electronic Relevant Contract Tax.” He complains that he did not receive the minimum rate of pay and the conditions of employment set out in the Sectoral Employment Order for the Construction Industry. He also claims that his dismissal was a penalisation for refusing to work on an RTC or ERTC contract.  

In her submission, Ms Treanor raised a preliminary issue concerning the naming of the correct respondent. She said that, on June 14th, the complainant was engaged by a named specialist brick-laying company working as a sub-contractor on the site managed by the named respondent. She referred to correspondence to the WRC from a director of the sub-contracting company and a solicitor acting on his behalf. In the correspondence, the sub-contractor stated that “all dealings” with the complainant on the site in south Dublin were with his company. In an affidavit submitted in evidence, the director of the sub-contracting company said that the complainant worked for his company on the named site on June 14th and 15th.

Ms Treanor submitted an induction form signed by the complainant where it is stated that the employer is the sub-contractor. At the hearing, the complainant said that he signed this form but that he did not complete the section giving the name of the employer. On another form, where the sub-contractor is named as the employer, the complainant said that the signature was not his.

A copy of a posting on the Facebook page of the Ancient Guild of Incorporated Brick and Stonelayers was also submitted in evidence. Here, an individual tells the story of his engagement by the sub-contracting company on the same building site in south Dublin on June 14th and 15th 2018, with details of the experience recounted by the complainant at the hearing. In the posting, it is apparent that the character in the story believed that he was employed by the sub-contractor. The complainant said that he was not the author of this post.

Ms Treanor referred to the decision of the adjudicator in ADJ-00015770, a complaint of an office worker against a state agency. Here, a government department identified itself as the employer and the adjudicator found that the complaint against the state agency was misconceived.

Having considered the evidence presented at the hearing, I understand that the main contractor on the site in south Dublin is the respondent named by the complainant.   As is the practice on many building sites, the main contractor has sub-contracted various elements of the work, such as brick-laying, mechanics, electrical, cladding, glazing and so on, to sub-contractors. As a brick-layer, I am convinced that the complainant was employed by the brick-laying contractor which has identified itself as his employer for the two days in question. I find therefore that he was not employed by the named respondent.

Like my colleague in the case referred to above (ADJ-00015770), it is my view that, where an entity holds itself out as the employer and, where a separate entity, the respondent in this case, makes a convincing argument that they are not the employer, then I must find that the entity pleading responsibility is the employer.

I have decided that this complaint is misconceived and that I have no jurisdiction to investigate further.

Respondent incorrectly named