Complainant

Respondent

Anonymised Parties

Plasterer

Construction Company

Representatives

Operative Plasterers & Allied Trades Society of Ireland

Self

Act

Complaint Reference No.

Date of Receipt

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

CA-00026897-001

08/03/2019

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

CA-00026897-002

08/03/2019

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

CA-00026897-003

08/03/2019

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

CA-00026897-004

08/03/2019

The Complainant started his employment with the Respondent on 8th January 2019 as a plasterer.

The Complainant was employed in a job that is covered by the Sectoral Employment Order which came into effect on 19 October 2017.

The Complainant submitted his claims against the Respondent to the Workplace Relations Commission (‘WRC’) on 8th March 2019.

An additional submission was received from the Respondent on 7th June 2019.

The Complainant alleges a breach of the provisions of Section 3(1) of the Terms of Employment (Information) Act, 1994. It is alleged that the Respondent contravened the relevant section in circumstances that it either failed or neglected to provide the Complainant with a written statement outlining the main particulars of the terms of his employment, within the time provided for in the Act.

The Complainant asks that the Respondent is ordered to pay compensation which is just and equitable in all the circumstances. The Complainant asks for the maximum award of four weeks in line of the decision of ECJ in Von Colson and Kamann [1984] ECR1891.

The Respondent conceded that no written statement of terms of employment was issued to the Complainant. The Respondent argues that the Complainant started his employment on 8th January 2019 and was on probation and for that reason no statement was furnished to him.

Section 3 of the Act provides as follows:

“ Written statement of terms of employment

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.”

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of his terms and conditions of employment within the time period outlined in the Act.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €1,000.

The Complainant submits that he is entitled to the provisions of the S.I. 455 of 2017 as he is a craft worker to whom the order applies working in the construction sector. Sectoral Employment Orders are governed by Chapter 3 of the Industrial Relations (Amendment) Act, 2015 whereby workers of a particular class, type or group as specified in the Order are entitled to the provisions of an order.

The Order sets out that a worker of the class or group to which the order applies is entitled to the provisions of an occupational pension scheme which includes a provision for death in service and a sick pay scheme. The Respondent failed or neglected to provide the required terms as set out in the order.

The Respondent submits that it had passed the details of the Complainant to its accountant for the purpose of processing of the relevant benefits and registrations. Post hearing, the Respondent furnished a one-page document with the names, PPS numbers and headings “weeks”, “rate”, “amount” in respect of 5 persons, including the Complainant, and contact details of the Construction Workers’ Pension Scheme.

The SEO sets out in detail requirements in relation to pension provision, death in service benefit and sick pay.

Appendix 1 of the SEO provides that: “Every employer to whom the SEO applies shall participate in an SEO pension scheme that meets the pensions requirements of the SEO.”

A contribution of €26.63 per week is to be remitted to the scheme by employers with employees contributing €17.76 in respect of pension scheme. In respect of a death in service benefit, each party is to remit €1.11 per week

The document provided by the Respondent post-hearing is not of much of evidential value. However, from the payslips provided it is evident that no contributions were made to a pension scheme on behalf of the Complainant.

Appendix 2 of the SEO provides for sick pay schemes to be established with the employer’s contribution of €1.27 per week and the employee contributing €0.63 per week. From the payslips provided it is evident that no payments in respect of these benefits were remitted for this Complainant.

Having examined these matters, I have concluded that the Respondent contravened the SEO by failing to provide the sick pay, pension and death-in-service benefits to which the Complainant was entitled.

In accordance with section 23(2)(a) of the Industrial Relations Act 2015, I decide that this complaint is well-founded. I decide that the Respondent is to pay compensation to the Complainant of €1,000.

The Complainant submits that the Respondent failed to pay him the minimum rate of pay as provided for in the SEO. The Complainant argues that he has 27 years of experience as a plasterer and that the minimum rate for craft workers is €18.93 per hour. The Complainant argues that he was paid €120 net per day.

The Complainant further argues that upon being placed on temporary lay-off the Respondent failed to pay wages to the Complainant. In the absence of any statement governing the main terms and conditions of employment, the Complainant claims his entitlement to his wages for the duration of lay-off. As the Complainant’s dismissal was not confirmed at any stage by the Respondent, it leaves outstanding as to whether or not the employment has ended.

The Complainant further argues that Section 22 of the Act lays a requirement upon all employers within the construction sector in respect of records keeping.

The Complainant relies on Section 22(3) and submits that where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Part in relation to a worker, the onus of proving, in proceedings before the Workplace Relations Commission or the Labour Court, that the provision was complied with lies on the employer.

The Respondent rejects that the Complainant was employed as a craft worker. The Respondent submits that the Complainant’s work had to be corrected and the Complainant agreed that he has to “up his game”. The Respondent claims that, as a result of the Complaint’s performance it lost a private contract of 16 years.

Neither party provided any evidence in relation to the hourly rate of pay of the Complainant. The payslips provided show different weekly gross payment.

OPATSI submitted that the Complainant has had 27 years of experience as a plasterer. The Respondent did not dispute this but expressed dissatisfaction with the Complainant’s performance. Performance shortcomings, even if they arose, cannot excuse the payment of an hourly rate of pay below the statutory minimum. There was no dispute that the Complainant was paid €120 net per day. The payslips provided show that the Complainant was paid between €126.08 and €146.44 gross per day. There was no agreement between the parties in respect of the hours worked by the Complainant. The Respondent argued that the working hours were 8am-5pm. The Complainant disputed that. At the hearing, the Complainant claimed that he started work at 7.45am and finished at 6pm.

In his written submission the Complainant stated that “He was approached by [MC] son of the managing director [JC] as to why he left the site at 4.30 the previous day. The complainant explained that it was his finishing time.”

I note that Section 22(3) of the Act stipulates that:

“(3) Without prejudice to subsection (2), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Part in relation to a worker, the onus of proving, in proceedings before the Workplace Relations Commission or the Labour Court, that the provision was complied with lies on the employer.”

The effect of subsection (3) is to shift the evidential burden of proof to the employer in cases where appropriate records are not maintained. In Antanas v Nolan Transport DWT 17/2011 the Labour Court said that, in such cases, “the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

“Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”

In the instant case, the Respondent did not present any records to confirm the hours worked by the Complainant. However, the evidence the Complainant gave was not credible. In his submission he claims that his “finishing time” was 4.30pm but at the hearing he claimed it was 6pm. The Union’s calculations on behalf of the Complainant show that he would have worked between 8.6 hours and 8.8 hours a day. OPATSI claims that in total, the Complainant worked 215 hours. On the basis of these calculations and having reviewed the payslips available to me, I find that the Complainant would have been paid below the rate of pay provided for in the SEO of €18.93 per hour. The underpayment would vary every week (payment between €14.49 and €16.83 per hour).

In respect of the Complainant’s request to be compensated for the temporary lay-off I find that, although it appears that the Complainant was not required to work on two occasions (4 days in total) he was not given notice of a temporarysuspension of his contract. It is unclear whether the Complainant was in receipt of any social welfare benefits during the four days in question.

In any event, in the High Court judgement in relation to lay off Petkevicius v Goode Concrete Limited (In receivership), Kearns P. found that “There is no right to lay-off with pay. It is well established law that lay-off without pay may occur where it can be established that that is the custom and practice of the trade. This custom must be reasonable, certain and notorious; Jelp J. Devonald and Rosser (1906) 2 K.B. 728. “

He went on to state “The Tribunal stated the position and practice to be that lay-off means lay-off without pay within the custom and practice of the construction industry.”

I declare this complaint to be well-founded in part. I direct the Respondent to pay the Complainant compensation of €1,000.

The Complainant claims that he is entitled to receive a payment for annual leave in accordance with Section 19 of the Organisation of Working Time Act, 1997. The Respondent failed or neglected to pay his entitlement to the Complainant.

The Complainant claims that he worked a total of 215 hours and therefore is entitled to 17.2. hours in respect of annual leave at the rate applicable under the SEO.

The Respondent conceded that no annual leave entitlements were given to the Complainant.

The Parties agreed at the hearing that the Complainant did not receive his annual leave entitlements.

I declare this complaint to be well-founded. I direct the Respondent to pay the Complainant €325.60 for the economic loss in respect of the annual leave. In addition, I direct the Respondent to pay the Complainant additional €300 in compensation for breaches of his rights under this Act.

Construction SEO- annual leave- lay-off – terms of employment- annual leave