Complainant

Respondent

Anonymised Parties

An Apprentice Plumber

A Construction Company

Representatives

Unite the Union

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

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-00027482-001

03/04/2019

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

CA-00033241-001

18/12/2019

The Complainant was employed by the Respondent as an apprentice plumber from 23 July, 2018 until 28 June, 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. The Complainant submits that 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 and 18 December, 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 his rights under the SEO.

The Complainant stated that he received a number of telephone calls from the Respondent’s Director, Mr. B, after the representations had been made on his behalf by the Trade Union representative, enquiring why he was looking for the “extra money”. The Complainant stated that he felt intimidated by Mr. B as a result of the issue having been raised about compliance with the SEO. The Complainant stated that his average weekly working hours were reduced after this issue was raised and that he was informed by the Site Foreman that Mr. B had indicated that had he wasn’t to be allowed work overtime hours or to obtain transport home from the site in the company vehicle.

The Complainant stated that he was scheduled to return to work on site for the Respondent on 17 June, 2019 after completing Phase 4 of his apprenticeship block release. The Complainant stated that he tried to make contact with Mr. B on several occasions after finishing his block release to ascertain the location of the site where he would be based but was unable to do so until about a week after he had finished. The Complainant stated that Mr. B informed him that work on the specific site where he had been previously based had finished and that he would be contacted when further work became available. The Complainant stated that he also received an e-mail from Mr. B on 28 June, 2019 to confirm there was no work for him at that juncture and “that hopefully this situation will change in the future”.

The Complainant stated that he did not receive any further contact or work from the Respondent thereafter and as a result was unable to complete his apprenticeship. The Complainant contends that one of his colleagues (who was also an apprentice plumber) with the Respondent cancelled his trade union membership and withdrew his claim for arrears in pay arising from an underpayment of the applicable rate under the SEO. The Complainant claims that this colleague was retained in employment by the Respondent despite the fact that he had less service than him.

The Complainant contends that the reasons put forward by the Respondent concerning the failure to provide him with further work after completing his block release in June, 2019 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 plumbers with less services than him were kept in employment by the Respondent. The Complainant also contends that while he was left at home without work the Respondent advertised widely for plumbers.

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 €17,403.14 in respect of the underpayment in relation to his pay, loss of earnings, pension, assurance and sick pay contributions.

The Complainant also contends that he was subjected to penalisation by way of loss of work and income and reputational damage contrary to Section 20(1) of the Industrial Relations (Amendment) Act 2015 for having asserted his rights under the SEO.

The Respondent submits that the Complainant commenced employment as an apprentice plumber with the company on 23 July, 2018. The Complainant had been working on one of the Respondent’s sites prior to commencing a period of block release as part of his apprenticeship. The Respondent submits that the Complainant was off site due to this block release when his employment was terminated by way of redundancy on 28 June, 2019. The Respondent submits that it was necessary to make the Complainant redundant at that juncture due to a downturn in the business.

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. B, Director

Mr. B stated that he informed the Complainant during a telephone conversation towards the end of June, 2010 after he had completed his block release that there was no further work available and that it would therefore be necessary to make him redundant. Mr. B stated that he sent the Complainant an e-mail on 28 June, 2018 to confirm the discussion that they had in the telephone conversation and that there was no work available for him. Mr. B stated that the Complainant’s contract of employment was terminated at that juncture by way of redundancy.

Mr. B denied that the Complainant’s dismissal was in any way related to the fact of his Trade Union representative having raised issues with the company in relation to compliance with the terms of the SEO. Mr. B denied that he had instructed the Site Foremen where the Complainant had previously been based not to allow him to work overtime or to travel in the company vehicle.

Issues for Decision

The Complainant was employed by the Respondent as an apprentice plumber and it was not in dispute that his 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 a complaint to the WRC in relation to the alleged contravention of the terms of the SEO on 3 April, 2019. By application of the time limits provided for at 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, the cognisable period covered by this element of his complaint is the six-month period from 4 October, 2018 to 3 April, 2019.

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

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. €11.37 per hour being the correct rate for a first year apprentice) prior to this matter being raised with the Respondent on his behalf by his trade union representative in early March, 2019. The Complainant commenced employment with the Respondent on 23 July, 2018 and having regard to the evidence adduced it is clear that he was being paid an hourly rate of €8.39 from the outset of his employment until the date that he commenced his Phase 4 period of block release on 25 March, 2019. I am satisfied that the Complainant was not entitled to payment during the period of his block release until his employment was terminated on 28 June, 2019. Therefore, I find that the Respondent was in contravention of its obligations under the SEO in respect of the Complainant’s rate of pay during the cognisable period of this complaint.

The Complainant adduced compelling evidence, both oral and documentary, that he was owed a total of €3,895.02 by way of underpayment of the applicable hourly rate under the SEO during the cognisable period. 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 €3,895.02 in respect of the arrears in pay arising from the underpayment of the applicable hourly rate of pay under the SEO during the cognisable period.

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 detailed 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 cent per week to the Construction Industry Sick Pay Scheme, being 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 six-month cognisable period of this complaint from 4 October, 2018 to 3 April, 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 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 3 April, 2019 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 18 December, 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 3 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 on 28 June, 2018 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 in question. 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, including another apprentice who did not pursue arrears of pay under the SEO, 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 on 28 June, 2019.

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 including another apprentice who did not pursue arrears of pay under the SEO. 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 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 €10,000.00 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. In assessing the level of compensation, I have taken cognisance of the fact that the Complainant had not completed his apprenticeship at the time of his dismissal and the consequent detrimental impact that this has had on his future career development. The Complainant adduced compelling evidence, both oral and documentary, that he has been unable to secure alternative employment in order to complete his apprenticeship as a plumber despite extensive efforts to do so. As a result, the Complainant has now commenced a third level course of education which is related to the construction trade.

(ii)  pay the Complainant the sum of €3,895.02 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 cognisable period of this complaint.

(iii)   pay to the Construction Workers Pension Scheme for the benefit of the complainant, the sum of €754.26 in respect of unpaid employer’s contributions in relation to pension, death in service and sick pay entitlements the cognisable period of this complaint.

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