ADJ-00017128

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014466 and ADJ-17128

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A precast concrete products manufacturing/fitting company

Representatives

In person

Eamon Carolan, Solicitor, Patrick J. Carolan and Co. Solicitors

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00018770-001	27/04/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00018773-001	27/04/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00022216-001	27/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00022216-002	27/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00022218-001	27/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00022218-002	27/09/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00022219-001	27/09/2018

Date of Adjudication Hearing: 02/09/2019

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints / disputes to me by the Director General, I inquired into the complaints / disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints / disputes.

Background:

The Complainant is a construction worker who was employed by the Respondent as one part of a team of two, a driver and himself. Their job was to deliver and fit pre-cast concrete products to building sites. This complaint, comprising of seven separate complaints, arose following a dispute between the complainant and his employer over his rate of pay, after which his employment terminated.

Summary of Complainant’s Case:

CA-00018770-001. The Complainant states that for the duration of his employment, as he was a construction worker, he should have been in receipt of the payment rate agreed under the Sectoral Employment Order (Construction Sector) 2017, hereafter referred to as the 2017 SEO. He described his work which included the delivery of pre-cast concrete products to a site and then fitting those products on site. All the workers on the sites that he attended were treated as construction workers and were paid in accordance with the 2017 SEO rates. The Complainant referred to definitions of construction work and construction workers contained in the Construction Contracts Act 2013 and the Safety Health and Welfare at Work Construction Regulations 2006 under which the Complainant meets the definition of construction worker. The Complainant also referred to a WRC case in which a pre-cast concrete company did not dispute the operation of the 2017 SEO to their workers CA-00018773-001. The Complainant submits that he was constructively dismissed when his employer denied his rights to be paid under the 2017 SEO and when he was asked to sign a backdated contract identifying him as a general operative and which required an acceptance by him that his rate of pay was not the rate set out in the 2017 SEO. CA-00022216-001. The Complainant withdrew this complaint at the hearing CA-00022216-002. The Complainant submits that he did not receive a continuous 11-hour rest period on 24/25^th October 2017 CA-00022218-001. The Complainant submits that he was required to work in excess of 48 hours per week on a number of specified weeks CA-00022218-002. The Complainant withdrew this complaint at the hearing CA-00022219-001. The Complainant submits that more often than not, he was not informed of his start/finish time of work 24 hours in advance of his working hours

Summary of Respondent’s Case:

CA-00018770-001. The Respondent does not accept that the Complainant was either a construction worker but even if he was they submit that the 2017 SEO does not apply to their employees because their business does not meet the definition of building firm as set out in the 2017 SEO. They are primarily a manufacturing business and even if the work that the Complainant included construction work, as they are not a building firm, the pay rates do not apply to their workers. The 2017 SEO is a sectoral agreement that applies to workers within specified sectors. As their principal business is manufacturing as opposed to construction, their business, is not covered by the 2017 SEO. Any definition of construction work or construction worker which fall outside the definitions found in the 2017 SEO itself are not relevant (for example definitions in the Construction Contracts Act 2013 or the Safety, Health and Welfare at Work Construction Regulations 2006). The WRC decision referred to is not relevant insofar as the Respondent in that case, unlike the present, did not dispute the operation to the 2017 SEO to their employees CA-00018773-001. The Respondent submits that the Complainant resigned his post without providing any reason or notice for doing so. CA-00022216-001. The Complainant withdrew this complaint at the hearing CA-00022216-002. This complaint is outside the 6 month time limit however the substance of the complaint is conceded CA-00022218-001. The Respondent concedes that within two of the three claims under section 15 OWT Act (using four-month averaging periods) there were minor breaches, during which, it is acknowledged, the Complainant worked an average of 49.69 hours per week and 49.61 hours. CA-00022218-002. The Complainant withdrew this complaint at the hearing CA-00022219-001. The Respondent submits that as no specific dates have been provided as to when the section 17 OWT Act breaches occurred it is not possible to meet this complaint however they submit that in the main he would have been given 24 hours notice of his working hours however practically this may not always be possible if some issue arose on site which required more time to deal with, this extra work was not foreseeable. They submit that the driver was given 24 hours notice and therefore he should have been given that information from the driver. However they accept the Complainant’s evidence that the driver may not have passed on this information to the Complainant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00018770-001. The Respondent is primarily a manufacturing firm and is not primarily a building firm under the definition of sector in the 2017 SEO (SI 455 of 2017). I do not dispute that the Complainant’s work may have been primarily construction work however, for the purpose of this complaint, it is not necessary for me to determine that question. What lies to be determined is whether the Respondent, as primarily a manufacturing company, comes within the reach of the 2017 SEO and I find that it does not. The WRC decision, ADJ 19891 referred to by the Complainant is not relevant. Just because one precast fitting concrete company accepts that they are a building firm within the meaning of the 2017 SEO does not mean that all precast concrete firms are building firms, regardless of the work that an individual worker may do. In this matter, the definition of building firm is what is determinative, not the definition of construction work or construction worker. For this reason, this complaint fails. CA-00018773-001. The evidence of the Complainant is that he resigned his position having been told he was not entitled to the SEO rate and on being asked to sign a backdated contract (which would bind him to an acceptance that the SEO rate did not apply to him and which he was not prepared to do.) However, in a constructive dismissal case the employee intending to resign, must ensure that the employer is on notice of the reasons for his departure. Also, he has an obligation is to use any grievance procedures that are available to him prior to resignation. The Complainant did not provide the reasons for his resignation prior to executing his decision to leave and for that reason his claim for constructive dismissal fails. CA-00022216-001. The Complainant withdrew this complaint at the hearing CA-00022216-002. I accept that there was reasonable cause for the complaint to be lodged outside the 6-month time limit, namely the Complainant did not have access to legal advice and, in error, believed that the complaint had been lodged as part of Adj. 144466 CA 00018770-001, which was lodged within time. As this complaint is conceded in substance, I find it to be well founded and I award the Complainant €1000.00 CA-00022218-001. As this complaint is in part conceded I find it to be well founded and I award the Complainant €4000.00 CA-00022218-002. The Complainant withdrew this complaint at the hearing CA-00022219-001. As this complaint is in part conceded I find it to be well founded and I award the Complainant €4000.00. In respect of this particular complaint I accept that while flexibility in relation working hours may be necessary where the nature of the task to be done is not precisely ascertainable, it is unacceptable to corrode an employee’s free time and indeed the free time of his family when the start and finish time of one’s working day is more often than not, not known in advance.Total Award: €9000.00

Dated: 21 October 2019

Workplace Relations Commission Adjudication Officer: Emile Daly

Key Words:

Pay – Unfair Dismissal – Sectoral Employment Order (Construction Sector) 2017 – Organisation of Working Time Act