ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Scaffolder | A Scaffolding Company |
Representatives | Company Managers |
Complaint(s):
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 7 of the Terms of Employment (Information) Act, 1994; Section 23 of the Industrial Relations (Amendment) Act, 2015; and Section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concern a dispute between a Scaffolder and his former Employer regarding the correct rate of pay that was applied during his term of employment. A number of related T &C related complaints were also considered. |
1: Summary of Complainant’s Case:
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Complaint/Dispute Reference No. | Summary Complaint. | |
CA-00029720-001 | No statement of T & Cs supplied. | |
CA-00029720-002 | The rate of pay provided in the SEO was not paid to the Complainant. | |
CA-00029720-003 | The Complainnat was not afforded an opportunity to join a Pension Scheme | |
CA-00029720-004 | Correct rate of pay for ordinary Holidays not paid. | |
CA-00029720-005 | Correct rate of pay for Public Holidays not paid. | |
2: Summary of Respondent’s Case:
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Complaint/Dispute Reference No. | Summary Response. | |
CA-00029720-001 No statement of T & Cs supplied. | Absolutely denied. Evidence of Contract of Employment supplied. | |
CA-00029720-002 The rate of pay provided in the SEO was not paid to the Complainant. | The Complainant received the correct SEO level NETT rate of pay during his employment. By Oral and Written agreement this was arrived at by a reduced basic rate and an enhanced expenses payment. This arrangement was done at the request of the employee to ensure that his entitlements to various Social Protection /Health Payments were not compromised by a high basic rate of pay. All had worked well until he left the Employment and was now in effect making a “Back Pay” claim. | |
CA-00029720-003 The Complainnat was not afforded an opportunity to join a Pension Scheme | Absolutely denied . The Respondent makes a PRSA arrangement for all staff if they wish to avail of it.
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CA-00029720-004 Correct rate of pay for ordinary Holidays not paid. | As per response to CA-00029720-002 above the rate of pay was agreed with the Complainant. | |
CA-00029720-005 Correct rate of pay for Public Holidays not paid. | As per response to CA-00029720-002 above the rate of pay was agreed with the Complainant. | |
3: Findings and Conclusions:
3:1 I will deal with the two Technical complaints first -CA CA-00029720-001 and 003 – Terms and Conditions Information and 003 - Access to a Pension Scheme. On the basis of clear written evidence supplied and uncontested these complaints are not Well Founded and are Set aside. 3:2 The Rate of Pay. In the oral and written evidence, it was clear that an arrangement had been entered into between the parties in April 2018 regarding how the SEO Rate of Pay was going to apply. It was alleged that the purpose of this arrangement was to facilitate the Complainnat retaining a range of Social Protection and other Welfare benefits that he would no longer qualify for in the correct SEO rate was applied. The arrangement had worked perfectly until the Complainant resigned due to alleged Travel issues. The Complaint and WRC reference was in effect a retrospective pay claim. The Respondent maintained that they had no issue paying the SEO rate but it was at the request of the Complainant the arrangement was entered into. At the Oral hearing the Complainant was decidedly vague on this point. The Respondent stated that the Complainant was an excellent worker and they had not wanted to lose him. They had agreed with great reluctance to his suggestions. Section 23(1) of the Industrial Relations (Amendment) Act, 2015 provides as follows. Decision of adjudication officer under section 41 of Act of 2015 23. (2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely— (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or (c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,
In keeping with Sub Section 2 above my conclusions are as follows. Regarding Sub Section (a) of the Act set out above. The Complaint is well founded – the SEO rate was not paid in a manner acceptable to the Act. Regarding Sub Section (b) Both parties to consider if it might be appropriate to use a method of Self Disclosure with the Department of Social Protection regarding this case. Regarding Sub Section (c) No Compensation is awarded. The Complainant received the correct Nett Pay, albeit by unorthodox means and was at no loss of income. It is important to note that this arrangement was at his request. I did not see any evidence of the Employer exerting unfair pressure or duress on the Complainant to accept this arrangement. It is also most important to observe that the arrangements entered into were playing very fast and loose with Social Welfare disclosure regulations. Any award of financial compensation would not be either “just or equitable.”
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4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 7 of the Terms of Employment (Information) Act, 1994; Section 23 of the Industrial Relations (Amendment) Act, 2015; and Section 27 of the Organisation of Working Time Act, 1997 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision. Please refer to Section 3 above for reasoning. |
CA-00029720-001 No statement of T & Cs supplied. | Complaint Not Well founded. Set Aside. | |
CA-00029720-002 The rate of pay provided in the SEO was not paid to the Complainant. | Complaint Well Founded. For reasons outlined in Section Three above No Compensation is awarded. Parties to consider a Voluntary Disclosure to the Department of Social Protection in relation to this case. | |
CA-00029720-003 The Complainnat was not afforded an opportunity to join a Pension Scheme | Complaint is Not Well Founded. Set Aside. | |
CA-00029720-004 Correct rate of pay for ordinary Holidays not paid. | Complaint is Well Founded on a Technical basis. As per Decision on 002 above. No compensation is warranted. | |
CA-00029720-005 Correct rate of pay for Public Holidays not paid. | As per Decision on 002 above. No compensation is warranted | |
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Dated: 16th October 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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