ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00016390
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | A construction firm |
Representatives | Bébhinn Murphy, BL instructed by | Colm Fortune, BL instructed by McGarr Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00021239-001 | ||
CA-00021239-002 | ||
CA-00021239-003 | ||
CA-00021239-004 | ||
CA-00021239-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
On 20 August 2018, the complainant referred complaints to the Workplace Relations Commission. The complaints were heard at adjudication on 10 December 2018. Bébhinn Murphy, BL instructed by O’Hanrahan Lally Solicitors represented the complainant, who attended to give evidence. Colm Fortune, BL instructed by McGarr Solicitors represented the respondent. The respondent director and the contracts manager gave evidence for the respondent.
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant asserts that he was not paid the prevailing SEO rate in the construction sector and is owed outstanding annual leave. He claims contraventions of the Employment Equality Act on nationality and disability grounds. The respondent denies the claims. |
Summary of Complainant’s Case:
The complainant outlined that he was working for a different employer when he was recommended for a job with the respondent. He had a five-minute conversation with the director at the start of his employment with respondent.
The complainant was initially paid €12.50 per hour and after a conversation with the director in May 2017, this was increased to €13 per hour. Others were paid more than the complainant and his Polish colleague. A named colleague, who is Irish, spoke about his increased rate of pay at the Christmas party in 2017. In January 2018, the complainant spoke with the respondent director and his pay increased to €15 per hour. Everyone else was getting €17 or €18 per hour. In March 2018, the complainant approached the main contractor and was offered €18.36 per hour.
The complainant outlined that in May 2018, the director told the complainant that he and other “Polish foreigners” were going to court and ruining businesses. This comment caused the complainant great stress and he decided to end his employment. There was only the complainant and the director present for the conversation. The complainant worked hard and did not say stupid things. He made some phone calls and resigned. He resigned the day of the conversation and left 30 minutes early. He wanted to calm down after the conversation. He received a P45 a week later. He said that he did not think of communicating his unhappiness about the conversation with the respondent when he received the P45.
The complainant commented that he was injured at work in October or November 2017, when an aluminium sheet fell on his leg, causing a swelling. He reported the incident to the health and safety representative. His GP certified he was unfit for the week. On the second day of the period of certified sick leave, the director rang to say the complainant had to return on light duties. He did so but was assigned the hardest duties. The director told the complainant to get his GP to certify him as fit. He went to the GP and said that he needed the medical certificate changed. He was not aware of the sick pay provision in the SEO. He returned to work with the swelling, which died down after two weeks. He was in pain during this time and had ongoing muscle contractions at night.
In respect of the Payment of Wages complaint, the complainant said he was paid below the SEO rates and accrued an entitlement to €1,393 and €1,515. At the outset of the adjudication, the complainant indicated that he withdrew the Payment of Wages complaint (CA-21239-004) as this related to an expense.
In respect of the annual leave claim, the complainant said he took four days off for health reasons between 28 June and 2 July 2017. The site closed on 21 December 2017 and re-opened on 2 January 2018. He was paid for the Christmas leave. In 2018, the complainant took annual leave around Easter for health reasons.
In questioning, the complainant said that the initial conversation with the director was a two-minute one where they agreed a rate of pay of €12.50. He had spoken to the director about working in construction before and his current glazing role. It was put to the complainant that he was engaged as a cleaner; he replied that he did this for two weeks but then moved to glazing work. The complainant accepted that his pay had increased but he had worked hard for this. The complainant re-iterated that the director had spoken about foreigners and the complainant’s nationality. It was put to the complainant that he did not know he was paid less than Irish workers; he replied that there was no evidence of the rates of pay. It was put to the complainant that he is marked on the register as present on the site between the 28 July and 2 August; he replied that the period of leave was at the end of August to 1 September. He said that he had told the director of the transplant and having cancer. He was stressed and had fainted at work on 21 December.
It was put to the complainant that he was paid for 40 hours of annual leave after his employment came to an end; he replied that he was due more hours and should have received six days in early 2018. In relation to his current work, he said that he had to look after what he did but could now do a normal job. The complainant was asked why he had not informed the director of the incident of 23 October 2017; he replied that he had informed the safety officer and finished what he was doing. He left the site at 4pm. It was put to the complainant that the director had phoned the next day to ask how the complainant was; he rejected this account and said that he was told he had to work. It was put to the complainant that there was no pressure from the respondent to get an amended certificate; he replied that he needed the money and his GP would support his account. The complainant said that he convinced the GP to change the certificate. He had bills to pay even when his leg was swollen. The complainant started on a new site on 30 November and did not disclose this medical information to the new employer as this was private. |
Summary of Respondent’s Case:
The director outlined that the respondent is a glazing company. It has about four employees, two of whom are long term. He was looking for someone to keep the site clean and the complainant was recommended to him. He met the complainant, who said he was then working as a chef. He did not say that he had previous construction experience. They agreed a rate of pay of €12.50 per hour and the director assumed the complainant had a Safe Pass. In July 2017, they agreed an increase in the complainant’s pay and he was a good worker. There was one other Polish employee, who left to start his own business. The director refuted the allegation of abusing the complainant or anyone else.
The director said that he became aware of the Sectoral Employment Order after Christmas 2017. He acknowledged that there was a deficit in the complainant’s pay and he should have been paid an extra 77 cent per hour as a “new entrant”. In April 2018, the complainant said that he wanted to leave and needed a medical card. The director begged him not to give up his job to get a medical card, but the complainant wanted his P45. The complainant took one week’s holiday in August 2017 and wanted to carry over leave to 2018 to visit home. He was paid for his Christmas holidays and paid for a week in Easter. He wanted to finish on the 2 May and was paid for 40 hours annual leave.
The director outlined that the date of the incident was 23 October 2017. The job was near completion and he was on the site of the next job. The head contractor’s safety officer contacted him about the incident, He rang the complainant on the Wednesday to ask how he was. The complainant said that he would be in work the next day. The director denied telling the complainant he had to return to work. The job was winding down so there was no urgency. The complainant attended work on the Thursday and was told by the contracts manager that he needed a fitness to work certificate. The complainant attended work the following day but was told by the director that he could not work unless he had the fitness to work cert. The complainant then agreed to get this. The complainant was paid for the week regardless and would have been paid as he was injured on site. The director said that construction sites are inherently dangerous, and the respondent worked with glass. The director said that he did not want the complainant to end his employment. The complainant had told him he was leaving because he needed a medical card and hospital treatment.
In questioning, the director said that he employed two long-term members of staff who are Irish. Since January 2018, they were paid €17.04 per hour as they are glazers. The director said that he agreed to pay the complainant higher than the new entrant rate as he was a good worker. He said that everyone knows that you need a Safe Pass to go on a building site, so he did not ask the complainant whether he had one. The director had asked the complainant about his previous experience. The complainant was not employed as a glazer but to keep the site clean and to put rubber onto glass. They were training the complainant in glazing. He outlined that the respondent did not have a sick pay policy.
The contracts manager for the main contractor outlined that he met the complainant as soon as he started with the respondent. He was on the site on the day of the complainant’s work injury and spoke to the site safety officer who had reported the incident. On the Tuesday, the complainant submitted a medical certificate but was back in work on the Thursday. The contracts manager said that he told the complainant that he should not be on site. He rang the respondent on the Friday to say that the complainant could not work without being certified as fit. The complainant then obtained a back-dated certificate. The complainant was then allowed to work and said that he returned as he needed the work. |
Findings and Conclusions:
CA-00021239-001 This is a complaint relating to the minimum rate of pay payable to the complainant pursuant to the Construction Sectoral Employment Order. The respondent acknowledged paying the complainant below the rate of pay provided in the SEO but asserted that the complainant was only entitled to the New Entrant rate of pay. The complainant said that he had previously worked in a glazing-related role at a supermarket chain and was entitled to a higher rate of pay than the New Entrant grade.
I find that the complainant was entitled to be paid the Category 1 Worker rate of pay per the SEO, i.e. €17.04 per hour. He gave a cogent account of a previous glazing role. I note that he came recommended for the role with the respondent and already had his Safe Pass. The evidence was that the duties assigned to the complainant increased as he became established with the respondent. Taken together, this points to the complainant not being a New Entrant in the construction sector.
The complainant was initially paid €12.50 per hour and this increased to €13 per hour in May 2017. In January 2018, the complainant’s rate of pay was increased to €15 per hour. The complainant is entitled per this complaint to recover the difference in pay between what he was paid and the applicable SEO rate of pay (€17.04/hour) for the period of time he worked for the respondent and the SEO was in force.
The complainant’s employment began prior to the coming into force of the SEO on 20 October 2017. There cannot be a breach of the SEO prior to 20 October 2017. As of 20 October 2017, the complainant was paid an hourly rate of pay of €13, while he should have been paid €17.04; this is a difference of €4.04. On 19 January 2018, the complainant’s pay was increased to €15 per hour; there was a difference in hourly pay of €2.04 from this date to the end of employment on 8 May 2018.
The complainant worked 37.5 hours per week. The period between 20 October 2017 to 19 January 2018 is a period of 13 weeks (487.50 hours). The period from 20 January to 20 May 2018 is a period of 15 weeks (562.50). There was a shortfall of €1,969.50 for the first period and €1,147.50 for the second period. I take into account the €375.37 already paid by the respondent to the complainant. The total owed by the respondent is now €2,741.63.
Where there is a contravention of a SEO, section 23 of the Industrial Relations (Amendment) Act, 2015 permits redress that is “just and equitable in all the circumstances”. In assessing redress, I note the persistent underpayment of the complainant, even below the New Entrant rate. On top of the financial loss of €2,741.63, I award an additional €1,000 for the contravention of the SEO. As a result, the respondent shall pay to the complainant redress of €3,741.63.
CA-00021239-002 This is a complaint of discrimination on the race/nationality ground pursuant to the Employment Equality Act. In the first instance, the complainant must establish a prima facie case of discrimination, i.e. facts of such significance that raise the inference of discrimination. He must establish those primary facts on the balance of probabilities. Where such a prima facie case is raised, it falls on the respondent to rebut the inference of discrimination.
The complainant referred to being underpaid by the respondent, as compared to the SEO and the pay of two Irish staff. He referred to a conversation in May 2018, where he says the respondent director made derogatory comments about Polish people going to the courts. The respondent director denied making the derogatory comment and said he wished for the respondent to stay.
It is clear that the respondent underpaid the complainant in breach of the SEO (as I have held above) and paid him less than two Irish colleagues. However, the mere fact of falling within a discriminatory ground does not raise the inference of discrimination (see Graham Anthony & Co. Ltd v Margetts [2003] EDA 038). While I note that the respondent underpaid the complainant, it did increase his pay, first to €13 and then to €15, following conversations between the complainant and the director. I note that the respondent sought to comply with the SEO, paying some of the monies due to the complainant, albeit in line with the New Entrant rate. While there is non-compliance, I find that the efforts at compliance indicate that the underpayment is not a fact that points to discrimination.
There was a conflict in evidence regarding whether the director made a derogatory comment regarding Polish people taking court cases. Having considered the evidence, I find that the derogatory comment was not made. The director gave strong evidence of his conversations with the complainant and his wish for the complainant continue to work for the respondent. It is striking that the complainant did not immediately challenge the reference to his nationality or complain about it when he was sent the P45 a week later. His evidence was that this was the only occasion such a slur was made, and one would expect to see a reaction to such a slur, especially in the context of the complainant resigning his employment.
Taking these factors together, I find as fact that the complainant has not established on the balance of probabilities that the director made the derogatory comment referring to his nationality. An allegation cannot raise an inference of discrimination where such a negative finding of fact has been made.
I find that the complainant has not established a prima facie case of discrimination on the race/nationality ground.
CA-00021239-003 This is a complaint pursuant to the Organisation of Working Time Act for unpaid annual leave. For completeness, when the complaint form was submitted on the complainant’s behalf, the drop box referring to annual leave for civil aviation mobile workers (SI 507/2012) was selected. Clearly, the complainant did not work in civil aviation, so I have amended the report to record that this complaint is one for adjudication pursuant to section 27 of the Organisation of Working Time Act.
The evidence that the complainant took paid annual leave between 28 August to 1 September 2017 as well as Easter week in March 2018. He received two weeks’ pay while the site closed over Christmas 2017/New Year 2018. The complainant, therefore, received his entitlement of four weeks paid annual leave, given that he worked for the respondent for 12 months.
CA-00021239-004 This complaint pursuant to the Payment of Wages Act was withdrawn at the adjudication as it related to expenses, which do not fall within the ambit of “wages” under this Act.
CA-00021239-006 This is a complaint pursuant to the Employment Equality Act where the complainant asserts that he was discriminated against on grounds of disability and that the respondent failed to provide reasonable accommodation of his disability. I find that the complainant has not established a prima facie case of discrimination or that the respondent failed to provide reasonable accommodation.
It is clear that there was an accident on 23 October 2017; this is documented on the health and safety incident forms. It is also clear that the complainant was initially unfit for work, but submitted a fitness to work certificate, dated 27 October 2017. The complainant says that the respondent director told him to return to work immediately. The director, however, gave cogent evidence of this job winding down and a new job starting up; it was not a busy week. In any event, the complainant was paid for the full week.
Given that a practicing general practitioner signed off on the complainant being “Fit to return to work. Thursday 26 October”, it is not possible to look behind the document to conclude that the complainant was unfit or otherwise fell within the ambit of “disability”. The evidence is that there was an accident, the complainant was paid while out and returned after producing a fitness to work certificate. I do not accept that the director required him to return to work immediately. The complainant has not established a prima facie case of discrimination or a failure to provide reasonable accommodation. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00021239-001 I find that this complaint is well founded and the respondent shall pay to the complainant redress of €3,741.63.
CA-00021239-002 I find that the complainant has not established a prima facie case of discrimination on the race/nationality ground.
CA-00021239-003 I find that this complaint is not well founded as there was no contravention of the Organisation of Working Time Act in respect of annual leave.
CA-00021239-004 The complaint pursuant to the Payment of Wages Act was withdrawn by the complainant.
CA-00021239-006 I find that the complainant has not established a prima facie case of discrimination on the disability ground, nor that the respondent failed to provide reasonable accommodation to the complainant.
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Dated: June 12th 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Construction SEO / S.I. 455/2017 Section 23 Industrial Relations (Amendment) Act, 2015 / “just and equitable” Employment Equality Act / prima facie case |