Complainant

Respondent

Anonymised Parties

A Painter

A Painting and Decorating Company

Representatives

SIPTU

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-00022202-001

27/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022202-002

27/09/2018

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

CA-00022202-003

27/09/2018

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

CA-00022202-004

27/09/2018

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

CA-00022204-001

27/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022204-002

27/09/2018

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

CA-00022204-003

27/09/2018

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

CA-00022204-004

27/09/2018

The complainant is a time-served painter and he joined the respondent company on March 26th 2018. The respondent had a contract to paint an office building in Dublin 4. On June 14th, the complainant said that he queried his rate of pay and the next day, he was told that there was no more work and he was dismissed.

For the 12 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.

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.

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 12 weeks that he was employed by the respondent, I find that he was underpaid by €1.93 per hour for 480 hours (12 weeks @ 40 hours per week).

As this complaint is well-founded, I decide that the respondent is to pay the complainant €926.40, which is the shortfall in the amount that he should have been paid when he was from March 26th 2018 until June 15th 2018.   I have arrived at this figure by taking the number of hours worked over 12 weeks, 480 hours, and multiplying this by €1.93, the shortfall in the hourly rate.

The complainant did not receive a statement of his terms and conditions of employment.

No evidence was produced which indicated that the complainant received a statement of his terms and conditions of employment.

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.

It is apparent that the respondent in this case failed to carry out 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.

This complaint is well-founded. As he worked for the respondent for 12 weeks, the duration of the illegality was therefore four weeks. The respondent is to pay the complainant compensation of €757.20, equivalent to one week’s pay.

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.

No evidence was presented at the hearing to show that the complainant was paid his entitlement to holidays.

The complainant worked for the respondent for 12 weeks. In accordance with the Organisation of Working Time Act 1997, he is entitled to one third of a week’s pay for each month that he was employed. I find therefore that he is entitled to one third of a week’s pay for each of the four weeks that he was employed by the respondent, equivalent to one week’s pay.

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 of €757.20, equivalent to one week’s pay.

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 €380 as compensation for this breach of the Act.

Three public holidays occurred during the tenure of the complainant’s employment with the respondent; April 2nd (Easter Monday), May 7th (May public holiday) and June 4th (June public holiday). While he was paid for these days, the union argues that he was paid the incorrect rate of pay, €17 per hour instead of €18.93 per hour.    

The respondent’s evidence was that the complainant accepted the job of painter at a rate of €17 per hour.

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 three public holidays that fell during the course of his employment with the respondent.

As he suffered a shortfall in his hourly rate of €1.93 per hour for eight hours on each of the public holidays that occurred during his employment with the respondent, I have decided that the respondent is to pay the complainant the shortfall of €46.32 (24 hours @ €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 €380 as compensation for this breach of the Act.

In his submission at the hearing, the complainant claimed 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.

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.

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.

As the complainant worked for the respondent for 12 weeks, he has missed out on employer contributions of €319.56 (26.63 x 12). I decide therefore that the respondent is to pay the complainant €319.56 in lieu of unpaid pension contributions.

CA-00022202-001: €926.40         Reason:   Compensation for shortfall in the hourly rate of pay

CA-00022202-002: €757.20        Reason: Compensation for failure to issue a written statement

CA-00022202-003: €1,137.20      Reason: Compensation for failure to pay for annual leave

CA-00022202-004: €426.32       Reason: Compensation for failure to pay correct public holiday pay

CA-00022204-001: €319.56       Reason: Compensation for failure to pay pension contributions

Total award:             €3,566.68

Sectoral employment order