Complainant

Respondent

Anonymised Parties

A Plumber

A Construction Company

Representatives

Unite the Union

Ms. Bairbre Ryan B.L. on the instructions of Sean Ormonde & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00027450-001

02/04/2019

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

CA-00028178-001

03/05/2019

The Complainant was employed by the Respondent as a plumber from 14 January, 2019 until 10 April, 2019. The Complainant claims that he did not receive his entitlements in relation to pay, pension, assurance and sick pay in accordance with the SEO for the Mechanical, Engineering, Building Services and Contracting Sector during his period of employment with the Respondent. The Complainant also claims that he was subjected to penalisation contrary to Section 20(1) of the Industrial Relations (Amendment) Act, 2015 for having tried to invoke his rights under the terms of the SEO.

The Respondent disputes the claim that it contravened the Complainant’s entitlements under the SEO or that he was subjected to penalisation for having tried to assert his rights under the SEO.

The Complainant submits that he mandated the Regional Organiser of his Trade Union to engage with the Respondent concerning payment of rates of pay, pension, assurance and sick pay contributions as provided for under the SEO. On 15 March, 2019 the Regional Organiser met with Mr. A and Mr. B (Directors of the Respondent) concerning non-compliance with the SEO. It was agreed by the Directors that the company was covered by the terms of the SEO and they undertook to address underpayments to employees concerning the entitlements provided for under the SEO. The Complainant submits that it was clear to the Regional Organiser that Mr. B was deeply unhappy about being asked to make retrospective payments to the Complainant.

On 27 March, 2019, the Regional Organiser wrote to the Respondent advising of actions taken against the trade union members who had mandated him to seek application of the terms of the SEO. In this e-mail the Regional Organiser described the actions of the Respondent as victimisation of trade union members. On 3 April, 2019, the trade union advanced complaints to the WRC on behalf of the Complainant concerning the underpayment of entitlements under the SEO and alleged penalisation for having invoked rights under the SEO. The Complainant submits that he received a week’s notice from the Respondent on 8 April, 2019 and his contract of employment was being terminated on the basis that the employer did not have enough work for him.

The Complainant contends that he remains at a significant loss due to the fact that the Respondent has failed to address underpayments of pay, pension, assurance and sick pay contributions as provided for in the SEO during the period of his employment from January, 2019 to April, 2019. The Complainant claims that he incurred a loss amounting to €2,094.00 in respect of the underpayment in relation to his pay, pension, assurance and sick pay contributions during this period.

The Complainant also contends that he was subjected to penalisation by way of dismissal from his position contrary to Section 20(1) of the Industrial Relations (Amendment) Act 2015 for having asserted his rights under the SEO. The Complainant claims that he has suffered a detriment of loss of employment and the wages he would have earned but for the actions of the Respondent. The Complainant claims that he also accrued a further loss of €13,588.40 in relation to pay and pension entitlements during the period from the termination of his employment on 10 April, 2015 until 23 July, 2019 when he obtained alternative employment.

The Complainant contends that the reasons put forward by the Respondent concerning the termination of his employment are spurious. He contends that even if it could be established that the Respondent’s levels of work had reduced and lay-offs were inevitable, that sector norms should have dictated that the principle of last in first out should have applied. The Complainant contends that after his contract of employment was terminated that plumbers with less services than him were kept in employment by the Respondent. The Complainant also contends that while his contract of employment was being terminated the Respondent advertised widely for plumbers and hired several employees to perform this role.                                                                                                                                

The Respondent submits that the Complainant was working as a plumber on one of its sites when his employment was terminated on 10 April, 2019. The Respondent contends that at the time of the Complainant’s dismissal the company was winding down work on this project and that he had been informed on 25 March, 2019 that the duration of his placement would be for one month.

The Respondent accepts that matters were raised by the Complainant’s trade union in March, 2019 on his behalf in respect of rates of pay under the SEO. The Respondent states that it was not aware of its obligations under the SEO at that juncture and it does not dispute that the Complainant was not being paid the applicable rate as per the SEO. However, the Respondent submits that it immediately took measures to address any underpayments in relation to the applicable rates upon being made aware of this and put in place an amendment to the payroll to ensure compliance.

The Respondent contends that there was no provision for pension or sick pay rights in the Complainant’s contract of employment and therefore such rights cannot be implied by the terms of the SEO.

The Respondent submits that when the Complainant commenced his employment the company had 41 employees. However, when the Complainant’s employment ended the number of employees had reduced to 35 and on the date of the hearing this figure had further reduced to 29 employees. The Respondent submits that the cessation of the Complainant’s employment was totally unrelated to any steps taken by him to invoke his rights under the SEO but was simply a redundancy brought about by the natural reduction in the work available to the company and completion of projects upon which it had acted as a contractor or subcontractor.

The Respondent submits that the Complainant’s contract of employment with the company was terminated validly, for good cause and that the decision to dismiss him was unrelated to any effort to invoke his rights pursuant to the Industrial Relations (Amendment) Act 2015.

Notwithstanding the above arguments in relation to the substantive claim, the Respondent also submits that the Complainant is precluded from pursuing the complaint of penalisation contrary to Section 20(1) of the Act. The Respondent submits that the Complainant did not invoke any right under the SEO and that it was his trade union representative that raised the issue with the Respondent in relation to the alleged non-compliance with the terms of the SEO.

The Respondent relied upon the following cases in support of its position, namely: Paul O’Neill v Toni & Guy Blackrock Limited [2010] 21 E.L.R. 1 and Anna Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 E.L.R. 8.

Evidence of Mr. A, Managing Director

Mr. A stated that the Respondent was established in 2002 and that he is the current Managing Director of the company. Mr. A stated that he was approached by the Trade Union representative who was acting on behalf of the Complainant and a number of other employees in March, 2019 who brought it to his attention that there was an issue in relation to the company’s compliance with the SEO. Mr. A stated that he was not aware of the company’s obligations under the SEO prior to this contact from the Trade Union representative. Mr. A stated that the Respondent immediately put measures in place thereafter to ensure compliance with the terms of the SEO in relation to the Complainant and other employees.

Mr. A stated that the Complainant was working on a large project on one of its sites in March, 2019. Mr. A stated that as a result of delays in this project around that juncture it was necessary to reduce the number of workers employed by the company 41 to 35 in April, 2019. Mr. A stated that the number of workers employed by the company was reduced further to 29 by the end of the Summer in 2019. Mr. A stated that it was necessary to let the Complainant go from his position as a result of the delays in the project. He emphatically denied that the termination of his employment was in any way connected to the issues which had been raised in relation to compliance with the SEO.

In cross examination, Mr. A stated that the Complainant was not offered a period of temporary lay-off as an alternative to dismissal at the material time in question. Mr. A stated that the Respondent had no other option but to terminate his employment at that juncture due to the delay in the project. Mr. A stated that the selection criteria of the candidates for redundancy was based first and foremost on their respective levels of skill. Mr. A accepted that he didn’t inform the Complainant about the selection criteria that were applied when making the decision to terminate his employment.  

Issues for Decision

It was common case that the Complainant is a qualified plumber and was employed by the Respondent from 14 January, 2019 until 10 April, 2019. It was not in dispute that the Complainant’s employment falls within the remit of the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018. Therefore, the issues which I must decide in the present case are as follows:

(1)    Whether the Respondent contravened the provisions of the SEO in relation to the Complainant’s pay, pension, death in service and sick pay entitlements, and

(2)    Whether the Complainant was subjected to penalisation by the Respondent contrary to Section 20(1) of the Industrial Relations (Amendment) Act, 2015 for having invoked his rights under the SEO.

The Complainant referred complaints to the WRC in relation to the alleged contravention of the terms of the SEO on 3 April, 2019 and 3 May, 2019. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, I am satisfied that the alleged contraventions of the SEO and penalisation contrary to Section 20(1) of the Industrial Relations (Amendment) Act, 2001 fall within the cognisable period of this complaint.

Complaint in relation to pay, pension and sick pay entitlements under the SEO

The first element of the complaint relates to the Complainant’s claim that the Respondent has contravened the provisions of the SEO in relation to his employment. In considering this matter, I note it was common case that the Complainant was not being paid the applicable rate of pay under the SEO (i.e. €23.60 per hour) until this matter was raised with the Respondent on behalf of the Complainant by his trade union representative in early March, 2019. It was common case that the Complainant was being paid an hourly rate of €20.00 from the outset of his employment. Therefore, I am satisfied that the Respondent was in contravention of its obligations under the SEO in respect of the Complainant’s rate of pay. It was not in dispute that the Respondent adjusted the Complainant’s rate of pay after the matter was raised by his trade union representative and that he was being paid the correct hourly rate of €23.60 on the termination of his employment. However, there was a dispute between the parties in relation to the date upon which the Respondent started to apply the correct hourly rate and the total amount of pay still outstanding to the Complainant arising from the underpayment of the applicable rate during his period of employment.

The Complainant adduced compelling evidence, both oral and documentary, that the correct hourly rate was applied with effect from the week commencing 22 March, 2019 and that he was owed a total of €1,592.65 by way of underpayment of the applicable hourly rate under the SEO during the period from 18 January, 2019 to 22 March, 2019. I am satisfied the Respondent has failed to adduce any cogent evidence or produce payroll records to dispute the Complainant’s contention on this matter. In the circumstances, I find that the Complainant has an entitlement to €1,592.65 in respect of the arrears in pay arising from the underpayment of the applicable hourly rate of pay under the SEO during his period of employment.

In relation to pension entitlements, the SEO provides that the right to contribute to a pension fund is a legal entitlement under Part 2 of the Pensions (Amendment) Act 2002. This entitlement is unaffected by any provision in an employee’s contract of employment. Therefore, I am satisfied that the Respondent cannot avoid its obligations in relation to the payment of pension contributions in respect of the Complainant’s employment purely on the basis that there was no such provision made in his contract of employment.

The terms of the pension scheme agreed between the Construction Industry Federation and the construction trade unions is at Appendix 1 of the SEO. This Order came into force on 19 October, 2017 and it provides that, for employees whose employment is governed by the SEO, a minimum contribution of €26.63 is to be paid every week by an employer, with the employee contributing €17.76.

In addition to the pension benefits, employers are required to submit €1.11 each week to the CWPS in respect of death in service benefits, with employees paying the same amount.

In respect of sickness benefits, the SEO provides that employers are to pay €1.27 per week and employees are to contribute 0.63 cents per week to the Construction Industry Sick Pay Scheme, a total contribution of €1.90 per week.

Having regard to the evidence adduced, I find that the Respondent has contravened its obligations under the SEO by failing to pay the applicable pension, sick pay and death in service contributions during the period of employment from 18 January, 2019 to 22 March, 2019. The amount of the employer contributions which the Respondent should have remitted during the material period in question are set out in the table below.

Complaint of Penalisation

The next element of the complaint relates to the Complainant’s claim that he was subjected to penalisation contrary to Section 20(1) of the Industrial Relations (Amendment) Act 2015 for having invoked his rights under the SEO. Section 20 of the Act provides as follows:

Prohibition on penalisation of worker by employer

“20. (1) An employer shall not penalise or threaten penalisation of a worker for—

(a) invoking any right conferred on him or her by this Chapter,

(b) making a complaint to the Workplace Relations Commission that a provision of this Chapter has been contravened, or

(c) giving notice of his or her intention to do either of the matters referred to in paragraph (a) or (b).

(2) Subsection (1) does not apply to the making of a complaint that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

(3) In proceedings under Part 4 of the Act of 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the worker concerned has acted reasonably and in good faith in forming the opinion and making the communication concerned.

(4) If a penalisation of a worker, in contravention of subsection (1), constitutes a dismissal of the worker within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the worker in respect of that penalisation both under section 23 and under those Acts.

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects a worker to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

Jurisdictional Issue

The first issue that I must address in relation to this complaint relates to the Respondent’s contention that the Complainant is precluded from pursuing the complaint of penalisation contrary to Section 20(1) of the Act. The Respondent submits that the Complainant did not invoke any right under the SEO and that it was his trade union representative that raised the issue with the Respondent in relation to the alleged non-compliance with the terms of the SEO. The Complainant disputes the Respondent’s position on this matter and contends that he did, in fact, invoke his rights under the SEO via his trade union representative. The Complainant claims that he mandated his trade union representative to pursue the issue with the Respondent on his behalf in relation to entitlements under the SEO.

It is clear from the provisions of Section 20(1) of the Industrial Relations (Amendment) Act, 2015 that a person is required to have invoked and/or given notice of his/her intention to invoke certain rights (such as those under an SEO) in order to ground a claim of penalisation contrary to the Act.

Section 41 of the Workplace Relations Act 2015 (as amended) makes provision for the presentation of complaints and the referral of disputes under employment legislation to the Director General of the WRC. Schedule 5 of the Act sets out details of the individual employment enactments under which a person is entitled to present a complaint or refer a dispute to the Director General of the WRC in accordance with the provisions of Section 41. Item 11 of Part 2 of Schedule 5 provides that: “A sectoral employment order within the meaning of Chapter 3 of Part 2 of the Industrial Relations (Amendment) Act 2015” is a relevant enactment for the purpose of the referral of complaints in accordance with Section 41 of the Act. Section 41(19) of the 2015 Act provides that a person’s trade union representative is a specified person for the purpose of the referral of a complaint to the WRC in respect of a contravention of the provisions of an SEO.

In the present case, I note that it was not in dispute that the Complainant’s trade union representative contacted the Respondent in early March, 2019 and raised issues on behalf of the Complainant in relation to his rights and entitlements under the SEO. The Complainant’s trade union representative subsequently referred the instant complaint to the WRC on 2 April, 2019 (i.e. prior to his date of dismissal) seeking redress in relation to the alleged contravention of his rights under the SEO. A further duplicate complaint was also submitted by the Complainant’s representative on his behalf in relation to this matter on 3 May, 2019. It is clear that the Complainant’s representative was fully entitled to do so being a specified person for the purposes of Section 41(19) of the Workplace Relations Act, 2015. I am satisfied that the actions of the Complainant’s representative, in referring the complaint to the WRC on 2 April, 2019, constitutes the act of invoking and/or giving notice of the Complainant’s intention to invoke his rights under the SEO. Accordingly, I find that the Complainant has satisfied the provisions of Section 20(1) of the Industrial Relations Amendment (Act), 2015 i.e. that he has invoked his rights under the SEO and is therefore entitled to pursue the complaint in respect of penalisation.

Substantive Issue

The Complainant claims that he was subjected to penalisation by being dismissed from his employment and the resultant reputational damage that ensued for having sought to invoke his rights under the SEO. The Respondent disputes this claim and contends that the Complainant’s employment was terminated as a result of a downturn in the business.

As I have already alluded to above, it is clear from the language of Section 20(1) of the Act that a person must have committed a protected act by invoking and/or giving notice of his/her intention to invoke certain rights (such as those under an SEO) in order to ground a claim of penalisation contrary to the Act. In the instant case, I am satisfied that the Complainant did seek to invoke his rights in relation to the payment of his entitlements under the SEO. Accordingly, I find that the Complainant’s actions in this regard constitute a protected act within the meaning of Section 20(1) of the Act.

The Labour Court has held in the case of Toni & GuyBlackrock Limited -v- Paul O’NeillHSD095 that: “It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

Therefore, in order to make out a complaint of penalisation contrary to the Act, it is necessary for the Complainant to establish not only that he suffered a detriment of a type referred to at subsection (1) but that the detriment complained of was imposed because of, or was in retaliation for, having committed a protected act.

The Complainant contends that having made a protected act that he was subjected to a detriment of dismissal and the resultant reputational damage that ensued which it is claimed constitutes an act of penalisation within the meaning of Section 27(3) of the Act. The Respondent does not dispute that the Complainant’s employment was terminated around the material time in question but claims that this dismissal was wholly attributable to a downturn in business and the requirement to implement a reduction in staff. The Respondent adduced evidence that it was necessary to reduce its workforce from 41 to 35 around the material period. The Complainant disputes the Respondent’s contention that his dismissal was unrelated to the fact that he had sought to invoke his rights under the SEO. The Complainant adduced evidence that there were other plumbers with less service than him who were retained in employment by the Respondent on the site where he was working at that juncture. The Complainant also adduced evidence in relation to advertisements made by the Respondent to recruit experienced plumbers within a short timeframe following his dismissal.

Having regard to the totality of the evidence adduced, I have found the Complainant’s evidence on this matter to be more compelling and I find that the fact of him having sought to invoke his rights under the SEO was an operative cause in relation to the Respondent’s decision to terminate his employment.

In coming to this conclusion, I have taken account of the manner in which the Complainant’s employment was terminated and the procedures adopted, or lack thereof, in effecting this dismissal within such close proximity to him having sought to invoke his rights under the SEO. It was not in dispute that the Respondent did reduce the numbers employed on the site where the Complainant was employed around the time of his dismissal. However, I note the Complainant’s uncontradicted evidence that the Respondent retained other plumbers with less service than him at that juncture. I am satisfied that the Respondent failed to initiate any process of consultation with the Complainant prior to his dismissal and did not inform him of the criteria that was applied in his selection for redundancy. The Respondent also failed to adduce any evidence to suggest that there were legitimate reasons which could be objectively justified to depart from the application of the industry norm of the last in first out principle in his selection as a candidate for redundancy. I find that the credibility of the Respondent’s assertion that his dismissal was not connected to the protected act is further diminished by virtue of the fact that the company advertised for the recruitment of experienced plumbers in the general area where the Complainant had been employed within a few weeks of his dismissal.

Having regard to the totality of the evidence adduced and the submissions made by the parties on this matter, I find that there is sufficient evidence to conclude that the “but for” test has been met and that the Complainant was subjected to the detrimental treatment complained of for having sought to invoke his rights under the SEO. Accordingly, I find that the Complainant was subjected to penalisation by the Respondent contrary to Section 20(1) of the Act.

In accordance with the provisions of Section 23(2) of the Industrial Relations (Amendment) Act 2015, I declare that the complaints in relation to the contravention of Section 20(1) and a sectoral employment order (within the meaning of Chapter 3) of the Act are well founded. I require the Respondent to:

(i)   pay the Complainant compensation in the amount of €7,500.00 which I consider just and equitable having regard to the circumstances of the case in relation to the contravention of Section 20(1) of the Act.

(ii)  pay the Complainant the sum of €1,592.65 in respect of the arrears in pay arising from the contravention in relation to the underpayment of the applicable hourly rate of pay under the SEO during the relevant period of his employment.

(iii)   pay to the Construction Workers Pension Scheme for the benefit of the complainant, the sum of €290.10 in respect of unpaid employer’s contributions in relation to pension, death in service and sick pay entitlements during the relevant period of his employment.

Industrial Relations (Amendment) Act, 2015 – Section 20(1) – Penalisation – Section 17 – Sectoral Employment Order -Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018 – Plumber – Rate of Pay – Pension – Sick Pay – Death in Service entitlements