ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014363
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Construction Recruitment Agency |
Representatives |
|
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00018722-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant detailed that following a request, through his union representative, for appropriate rates of pay, his employment was terminated and that this amounted to penalisation by the respondent. |
Summary of Complainant’s Case:
The complainant outlined that the respondent is a construction company and is covered by the terms of the Sectoral Employment Order (Construction Sector) (hereinafter referred to as SEO). The complainant had previously worked in construction including with the respondent and his most recent employment with the respondent commenced around the 30th January 2018 and ceased on 2nd February 2018. It was detailed that the complainant should have been engaged on the general operative rates of pay under the SEO but that when representation was made on his behalf by his union, he was told by text message on Saturday 2nd February 2018 that he was no longer needed. It was detailed that the complainant was not a cleaner as the respondent had suggested but was engaged in more specific work to remove concrete which involved more specialised equipment. It was alleged that the dismissal arose upon the complainant’s assertion of his rights to same pay that were payable to others workers of the hirer on the project, and that the complainant had been given a commitment of eight weeks work by the respondent. The complainant outlined that but for the fact that the complainant mandated his union representative to pursue underpayment of wags on his behalf; his employment would not have been terminated. With regards to where the probative burden of proof rests in the first instance, it was detailed that as set out in Elizabeth Stafford v Ernest Isaacson & Others as well as Team Obair AWD134, the burden of proof rested with the respondent. Other case law cited included Toni &Guy Blackrock v Paul O’Neill HSD095. |
Summary of Respondent’s Case:
The respondent opened their submission by outlining their concerns that the complainant was quoting legal case law which was not what they had expected. It was denied that the complainant was performing general operative work as defined under the SEO and it was also denied that the complainant had been given a commitment of 8 weeks work. The nature of the industry is that you are hired for what might be very short periods of employment as occurred in this instant case and it was denied that somebody else was hired to replace the complainant. The respondent confirmed that no contract of employment had been given. The respondent outlined that in all his years with the respondent he was never aware of anybody promised greater than a few weeks work and the complainant would never have been guaranteed 8 weeks work. The respondent outlined that he had been asked to find workers for the project that the complainant worked on and it was detailed that it would be normal to have cleaners on such sites. The respondent put forward that it was cleaning work and not general operative work which the complainant was required to do. |
Findings and Conclusions:
The respondent raised that he was not expecting the complainant to quote legal case law. The respondent was offered additional time to review the complainant’s submission if he required it and the hearing then proceeded. Section 2 defines an “agency worker” as “an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency; It is also detailed that : ““basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to— ( a) pay, ( b) working time, ( c) rest periods, ( d) rest breaks during the working day, ( e) night work, ( f) overtime, ( g) annual leave, or ( h) public holidays; Section 6 of the Act details that: 6.— (1) Subject to any collective agreement for the time being standing approved under section 8 , an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment. It was not disputed by the respondent that the respondent is covered by the Construction Sector SEO as their principal business is within the definition as detailed in the order and it was also not disputed that the complainant was an agency worker as defined under the Act. I note the complainant was paid the hourly rate of €11.50 which the respondent detailed was a higher than normal rate for a cleaner which he was employed as. The complainant detailed that he was a Category 1 Worker under the terms of SI 455/17 and that the appropriate rate should have been €17.04 and that this had been the rate others employed by the hirer doing a similar job would have secured. The specific complaint is that the complainant was penalised by the termination of his employment when he invoked his right to pursue what he saw as inequity of pay and that but for him invoking this right, he would have remained in employment. Section 23 sets out under prohibition on penalisation by employer. “(1) An employer shall not penalise or threaten penalisation of an employee for— ( a) invoking any right conferred on him or her by this Act, ( b) having in good faith opposed by lawful means an act that is unlawful under this Act, ( c) making a complaint to a member of the Garda Síochána or the Minister that a provision of this Act has been contravened, ( d) giving evidence in any proceedings under this Act, or ( e) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs. “ Section 23(3) prescribes the circumstances in which penalisation is rendered unlawful under the Act. (3) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— ( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2007), or the threat of suspension, lay-off or dismissal, While the Act is silent on the question as to whom the burden of proof rests with and the complainant’s representative put forward that the burden of proof rests with the respondent on the basis of Mullholland v QED Recruitment 2015 IEHC151 and Team Obair AWD134, I note that the said cases were in relation to rates of pay. In the Department of Justice, Equality and Law Reform v Kirwan, (HSD/082) held: “It is clear, however, that in the absence of any contrary statutory provision, the legal burden of proof lies on the person who asserts that a particular fact in issue is true (see Joseph Constantine Steamship Line v Imperial Sheltering Corporation [1942] A.C. 154, where this rule of evidence was described by Maugham V.-C. as ‘an ancient rule found on considerations of good sense and it should not be departed from without strong reasons’).” and therefore I find that the burden of proof rests with the complainant. The provision for “penalisation” under the Act must be a matter connected with inter alia “invoking any right conferred on him or her by this Act”. While much of the case law relates to penalisation under health and safety, such case law remains relevant with the Labour Court stating that the concept of penalisation should, similar to victimisation, be construed as widely and literally as can be fairly done (Panuta v Watters Garden World Ltd [2010] E.L.R. 86.). Section 23(3) provides that the employee must have suffered a detriment. The court has also set out in Shamoon v Chief Constable of the Royal Ulster Constabulary ([2003] UKHL 11 per Lord Hope at para.33; [2003] I.C.R. 337; [2003] I.R.L.R. 285; [2003] 2 All E.R. 26.) that “the test for what constitutes a detriment is an objective one and the Court should consider if a reasonable worker would or might take the view that the treatment complained of was, in all the circumstance, to his or her detriment”. The Labour Court stated that there is a requirement “to show a chain of causation between the impugned detriment and the protected act or omission” Óglaigh Náisiúnta na hÉireann v McCormack (HSD/115). As detailed in O'Neill v Toni & Guy Blackrock LtdPaul O'Neill v Toni & Guy Blackrock Limited [2010] ELR 1, (a case that deals with penalisation under health and safety legislation), “the Claimant must establish, on the balance of probabilities, that he made complaints. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.” The Complainant must show that ‘but for’ having made a protected act under the subsection (namely invoking his right to pay as conferred on him by the Act; the detriment would not have happened. The complainant detailed the dismissal was because the complainant mandated his union representative to pursue his rights under the legislation. The respondent denied he was entitled to such pay and denied that the employment was terminated because of pursuing this claim. The respondent also detailed that it is the nature of the business to give short term contracts to employees, albeit no written contact as given. I note that the complainant started work on the Tuesday but was absent due to sickness on the Wednesday and returned to work on the Thursday. The respondent did not suggest that the termination of employment was in any way related to this absent day, and the text messages between the respondent and the complainant was very cordial thereafter with the complainant apologising for his absence. It is noteworthy that the complainant’s employment was terminated on the Saturday when he was not on site and that he was not offered any other work by the respondent in an area that is a large urban area. It would have been expected that other work would have been made available to the complainant if, as the respondent detailed there was just no work available for him at that particular site. Instead the complainant was not offered any other work within the urban area. While I do not find any evidence that the complainant was offered 8 weeks work; I find the complainant’s evidence more credible that it was because he mandated his union representative to pursue a right conferred on him by the legislation, that he was therefore dismissed. With the burden of proof having shifted to the respondent, they have not met the burden of proof required. The complainant detailed it took some time to secure employment and that the respondent did not offer him any work in the urban area thereafter, and I find that a reasonable person would find that the dismissal was a detriment and that the dismissal did impact negatively on him. I find that this complaint is well founded and I require the respondent to pay to the complainant compensation of €1,500 which I find just and equitable in all the circumstances. |
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.
I find that this complaint is well founded, and I require the respondent to pay to the complainant compensation of €1,500 which I find just and equitable in all the circumstances. |
Dated: July 16th 2019
Workplace Relations Commission Adjudication Officer:
Key Words: Penalisation, agency worker, construction