ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Construction worker | A Construction Company |
Representatives |
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Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00024955-001 | ||
CA-00024955-002 | ||
CA-00024955-003 | ||
CA-00024955-005 | ||
CA-00024955-006 | ||
CA-00024955-007 | ||
CA-00024955-008 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
In particular, this matter comes before an Adjudicator of the Workplace Relations Commission on foot of certain complaints which are contained in a Workplace Relations Complaint Form dated the 11th of January 2019, wherein contravention of certain relevant provisions of Acts specified in the Schedule 5 aforementioned.
Four complaints have been brought under the Organisation of Working Time Act of 1997. Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended) it shall be open to me to decide whether or not any of the three complaints are well founded.
The complaints include a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. So that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
There is also a complaint of a contravention under Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
There is a complaint under Section 11 of the Organisation of Working Time Act 1997 which directs that an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours that an employee works for an employer.
Lastly is an allegation of a contravention under Section 21 and a contravention of Section 21 which set out the entitlements in respect of Public Holidays.
It is noted that an Employee has entitlements in respect of a public holiday: becomes entitled to Annual leave equal to:
A paid day off on the day;
A paid day off within a month of the day;
An additional day of pay.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
In addition the Complainant has made a complaint under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee herein employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).
A further complaint has been made of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
The last complaint brought is a complaint that the Complainant did not receive the terms and conditions as laid down in an applicable sectoral employment order (the sector herein is the Construction Sector). In the event that the Adjudicator finds that there has been a contravention of a Sectoral Employment Order the Adjudicator can:
Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
Background:
The Complainant worked with the Respondent Construction company for a period of time between September and December 2018. The parties fell out and the Complainant has made some complaints regarding the employment. |
Summary of Complainant’s Case:
I was provided with a written submission by the Complainant’s representative and the WRC had also secured the services of an interpreter at the request of the Complainant and I was therefore able to hear from the Complainant directly. |
Summary of Respondent’s Case:
The Respondent was represented by a Mr. MM who presented the Respondent’s evidence. |
Findings and Conclusions:
I have carefully considered the evidence adduced by the parties herein and have had a chance to consider the oral evidence and paperwork provided. The Complainant and his colleague (with whom he has brought and listed this claim ADJ file 19104) are both Romanian nationals and have travelled to Ireland to work in construction. I accept their evidence that have come to Ireland with a certain level of skill and expertise and that whilst this might be their first time working in Ireland it is certainly not their first time working within the building/construction sector. The Complainant and his friend (ADJ 19104) came to be employed by the Respondent company in and around August and September of 2018 and it seems that the company had not been long set up before that time. Initially, the Complainant signed an employee identification sheet which simply set out the personal and contact details. The Complainant knew he was on a probation period and understood he would be working in excess of 40 hours a week but beyond that, details were limited. The Complainant worked under a foreman who was also a native Romanian and from whom the Complainant took daily instruction and direction. The Complainant and his colleague worked together and were sent to numerous sites under the control and operation of the employer. The Complainant was never provided with a statement of the terms and conditions of employment. The Complainant worked in excess of the two month period during which an Employer is obliged to provide the statement of the terms of the employment. These two facts were conceded by the Respondent in circumstances that the parties knew there was a probationary period being worked out. The Respondent did not, it seems, feel obliged to provide the Complainant with further details of the employment during the probationary period. There can be little doubt that there has been a contravention of the Terms of Employment (Information) Act, 1994. I have given some thought to the issue of the application of the Sectoral Employment Order (Construction Sector) 2017. I understand that the enactment of the Industrial Relations (Amendment) Act 2015 provided a mechanism for trade unions to request the Labour Court to examine pay and terms and conditions of employment in certain sectors and to make a recommendation on these matters to the Minister at the department of Business, Enterprise and Innovation. The preamble to the Act sets out its objective: “An Act to make further and better provision for promoting harmonious relations between workers and employers and, in particular, to make provision for a system of registered employment agreements and sectoral employment orders…” An SEO providing for agreed terms in the construction sector, was signed into law by the minister on October 20th 2017 (SI 455 0f 2017). Section 16(2)(e) of the Industrial Relations (Amendment) Act provides that the Labour Court, in its recommendation to the minister on rates of pay and conditions of employment in a particular sector, must have regard to the fact that, “…the sectoral employment order shall be binding on all workers and employers in the economic sector concerned.” Both parties accepted that the workplace was one of construction and must therefore be governed by the relevant SEO. The applicable SEO herein is the Sectoral Employment Order (Construction Sector) 2017 - it was created on foot of the comprehensive recommendations made by the Labour Court, thereby putting them on a statutory basis. It is binding across the sector to which it relates. It is an unavoidable fact that the SEO places an obligation on the Employer in the sector to participate in an SEO pension scheme that meets the pension requirements of the SEO. The Respondent was unable to demonstrate a compliance with this obligation. There is a clear contravention of the obligation. The Complainant has made a complaint in this regard. The Complainant commenced his employment in and around September and I note that his first payslip is dated the 29th of September and presumably relates to a back week. This payslip specifies that the Complainant worked 48 hours at a rate of €17.50. The Complainant continued to work and get paid on a weekly basis up to the 24th of November at which stage the Complainant gave evidence that he continued to work for the Respondent company for a further three week period but for which he did not get paid. I have considered all the payslips provided in the booklet of documents and can see that the Complainant was paid at a rate of €17.50 per hour and often worked in excess of 48 hours in a given week. The Respondent gave evidence to the effect that the Complainant was not working for the Respondent during this last three week period up to the middle of December and was in fact working directly for the Foreman. However, the records I was presented with in this regard were contradictory with some days the Complainant working with the Respondent and some days not. What is clear, is the fact that whilst the Respondent denies that the Complainant worked out this three week period the Complainant presented for work in the same manner as always, worked under the direction of his Foreman for the hours claimed and was not advised that his Employer had changed or that he was no longer working with the Respondent company. The Employer employed this individual directly and is therefore responsible to ensure he is paid regardless of what the secondment/contracting out arrangements might have been. This amounts to a deduction for the purpose of a complaint under the Payment of Wages Act, 1991. After three weeks of not getting paid, the Complainant moved on and sought employment elsewhere but has now brought a Payment of Wages claim for the unlawful deduction of his last three weeks of employment. The Complainant had also become aware in the course of his employment and in conversing with others that he was being paid at a lesser rate than he believed he should have been getting paid. The Complainant was engaged as a “carpenter” (evidenced by Employer’s letter provided to me) and although he had no formal qualifications he had a high degree of specialisation and expertise albeit he was primarily working with concrete for the duration of this employment. I reject the argument that it was open to the Respondent to pay the Complainant at an entry level of €13.77. As previously stated the Complainant was new to the Irish building sites but had previously worked in the sector in his own home. The Complainant gave evidence that he was a craft worker as defined in the Sectoral Employment Order (Construction Sector) of 2017. On balance, and in relation to this Complainant, I am not prepared to look behind the Employer’s own description (per the Managing Director Mr. B) of this worker as a “carpenter” and would accept his assertion that he is a craft worker. Therefore this Complainant should have been getting paid at an hourly rate of €18.93 per hour. This amounts to a deduction under the Payment of Wages Act 1991. The Complainant submitted that he was never paid for the Public Holiday which occurred while he was in the employment. Additionally, no provision seems to have been made to discharge annual leave obligations at the termination of this employment (by way of P45) Decision:Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to each of the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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Dated: 23rd July 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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