Complainant

Respondent

Anonymised Parties

A Construction Worker

A Construction Supplies Company

Representatives

Colm Hennessy B.L. instructed by Rogers Law Solicitors

Stratis Consulting

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043255-001

25/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00043255-002

25/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043255-003

25/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043255-004

25/03/2021

The complainant was employed by the respondent on January 26th  2015 and his employment came to an end on February 17th 2021.

He had been involved in a disciplinary matter and shortly afterwards was placed on lay-off.

The manner in which the selection for lay off was conducted was unfair and contrary to natural justice and to the terms of the complainant’s contract of employment.

His selection for layoff was a result of him not being able to carry out a specific task in the time and manner determined by the employer.

The lay-off was in fact a disciplinary sanction as opposed to a genuine lay-off. No prior notice was given, and no fair and objective selection criteria were applied. The complainant was the only employee selected, although other employees had shorter service and less experience.

The respondent failed to adhere to or have in place a fair and objective selection process and no criteria were applied in order select employees for layoff.

There was no consultation with the complainant or fellow employees.

The notice to lay off, which had immediate effect, was served on him at the end of a working day on the February 17th, 2021, within hours of the incident referred to above and he was placed on a temporary unpaid leave of absence effective (layoff) beginning on February 18th, 2021.

As far as the complainant is aware no other employee was subject to this treatment on that day.

There was no adequate period of notice. The employer failed to serve proper and reasonable notice in accordance with law.

The employer has failed to keep records detailing the selection criteria adopted and used for Lay-off.

The applicant was unfairly placed on a temporary leave of absence (lay off) without pay, effective immediately, despite no specific provision in the employment contract relating to non-payment of wages during any lay off period.

As a result, he was not paid and has an estimated net loss of €3,570.11.

There is no provision in the complainant`s contract providing for the non- payment of wages during the layoff period.

Therefore, the non-payment of the Complainants salary during the period of layoff must be considered an unlawful deduction pursuant to the Payment of Wages Act 1991. In the amount of €3570.00.

CA-00043255-001- Terms & Conditions of Employment

This complaint is made under Regulation 18 of the European Communities (Road Transport) Organization of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 – S.I. No.36/2012.

The complainant is employed as a carpenter at the respondent’s factory and is permanently based there producing product to be used on construction sites. He is not a mobile employee. The contract confirms his specific place of work as being Newcastle, Co. Dublin.

The S.I. No.36/2012 that the Complainant is relying on in this matter is not relevant to the complaint.

(ii) CA-00043255-002 - Industrial Relations Issues

The complainant’s primary role involved the making of T-Walls available for production.  As a result of the serious continued decline in business, the respondent no longer had a requirement for T-Walls. Evidence was submitted of the fall in quantities of T-Walls required.

On the February 17th, 2021, he was told that he was being put on layoff with immediate effect due to there being no work arising from the lock down related closure of the construction sector.

Another employee was also put on lay-off at the same time, and seven other employees were already on layoff prior to this. In total, approximately 25% of the company’s employees were put on lay-off.

The respondent initially expected this to be short term, but due to Government concerns over increasing Covid-19 levels, the construction sector did not reopen until May 4th 2021.

However, the complainant was called back to work on April 19th, 2021 in anticipation of an earlier reopening of the construction sector and the expectation that there would be work available.

The respondent disputes any allegation that the complainant was put on lay-off because of a disciplinary matter.

There is absolutely no evidence to support this position by the Complainant. The respondent has a Disciplinary Policy and Procedure which is strictly adhered to in cases of poor performance or conduct.

The complainant is aware of this Disciplinary Policy.

There was no choice but to lay-off other employees in different areas of the factory at the same time.  Every effort was made by the Respondent to reduce the number of lay-offs hence the approach by role and function which applied equally across the company.

(iii) CA-00043255-003 - Minimum Notice

There is no legal requirement to give employees notice in a lay off situation.

Despite the challenging business environment, the respondent made every effort to limit the number of employees on lay-off across the whole company and kept the factory open as much as possible, despite the fact it would have been commercially more cost effective to have completely closed all areas of work during this period.

(iv) CA-00043255-004 - Pay

The Respondent says that it is not required to pay the complainant during a period of Lay-off and refers to the complainant’s contract.

a) Section 3.5 Contract.

“The Company reserves the right to lay you off from work or reduce your working hours where, due to circumstances beyond its control it is unable to keep you in employment.

b) Section 3.2 Handbook“

The company reserves the right to lay you off from work or reduce your working hours where, due to circumstances beyond its control, it is unable to keep you in employment.. Employees are paid for hours worked only”. Added emphasis for hours worked only.

The respondent has put employees on lay-off without pay and this has occurred in the past; most notably during the recession preceding the financial collapse in 2008.

The company had other layoff periods without pay including 2009, 2012, 2013, 2014 and 2017. And documentary evidence was submitted. Lay-off without pay is standard practice within the precast, quarrying and ready-mix sector and generally within the construction sector.

In a letter from the CEO of the Irish Concrete Federation (ICF) (submitted in evidence)he states the following,

The requirement for unpaid temporary lay-off during periods of low activity is a common occurrence for member companies in our sector and is necessary in order to protect businesses and save jobs.

In 2014, in a case before the Employment Appeal Tribunal (EAT) on the same matter it concluded that layoff without pay was the accepted norm and practice in the industry.

Note also the decision in the EAT case Steffan Chmiel & 2 others v Concast Precast Ltd PW725/2012 & TE253/2012 which was submitted.

In that case (page 5) The EAT held;

 “Having considered the law in the area and the able arguments presented by the appellants representation, the Tribunal cannot agree that the appellants were entitled to be fully remunerated during the course of their lay-off.

Although it is not legally required to do so, after one week on lay-off, it was agreed with the complainant that he would be returned to the Respondents payroll and receive weekly payments albeit at a lower rate.

The intention was to assist the employee during his lay off period, in light of the exceptional circumstances caused by the global pandemic.  This assistance was also provided to other employees who were on layoff. The weekly payment was topped up with bank holidays and holiday pay.

The respondent submitted a list of the payments made to the complainant over the eight week period of his layoff. The Respondent was fully closed for six days around the Easter period.

The Complainant was paid weekly approximately. 65% of his weekly net pay and was communicated to during this period and confirmed his agreement to be returned to the payroll.

The heart of this complaint is the decision to place the complainant on lay-off.

The complainant asserts that his selection was linked to a disciplinary issue and the respondent says it was related to trading conditions in the company.

These events took place in February 2021 when the public health pandemic was still causing severe impacts on the economy and employment, and perhaps among the worst casualties had been the construction sector into which the respondent supplies its products.

The complainant was placed on lay-off on February 18th, 2021 and followed an incident earlier in the day in the course of which it was alleged that he had refused to carry out a task requested by his manager.

While there was some dispute over the detail the manager gave evidence to the hearing that the complainant asked for a letter that would allow him to ‘go home’ and repeated this request several times. After some attempts to blur the issue, the complainant broadly confirmed that this was the case.

The relevance of this to the layoff is that the manager made a written report on the same day in which he specifically noted that the complainant stated that he wished to go on ‘temporary lay-off’.

I see no reason to doubt the veracity of this on the basis of the manager’s direct evidence at the hearing and the contemporaneous note he made. According to that same note, two other employees were put on lay off on the same day (contrary to what was claimed by the complainant).

The letter to the complainant confirming the layoff stated that it was ‘expected to last until construction sites are reopened’.

The complainant submitted queries to the company in early March and received a reply on March 9th and on March 25th the complainant repeated his intention to pursue a grievance about his selection for layoff.

The respondent replied the following day, sending him a copy of the grievance procedure. Ultimately, although at the hearing he confirmed receipt of the document, he did not pursue the grievance.

This is critical for any complaint under the Industrial Relations Act. His complaint was specified on the complaint form as follows.

The Applicant [sic] was unfairly selected for Layoff after not being able to carry out a work in the time and manner determined by the employer. No fair and objective selection criteria were applied. The Applicant was the only one selected among all his co-workers on the day, although some with less years of work. The applicant believes that it was a disciplinary sanction as opposed to a general layoff.

The Labour Court has made it clear (in INT 1014) that

‘The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed.’

This is the established position of both the Labour Court and also the Adjudication service in numerous decisions as otherwise there would be two very undesirable consequences.

The first is that dispute resolution at the level of the workplace would be adversely affected by premature reference to the WRC as a resort of first instance. It is important for many obvious reasons that disputes should be resolved at the point closest to where problems occur, and where the people involved work.

The second consequence would be that the Adjudication service would be overwhelmed by disputes, which would be especially ironic given its name; the ‘Workplace Relations’Commission which amply illustrates the point. It is at the level of the workplace that these issues must initially be processed.

In this case, while the proximity of the events (the refusal of the complainant to carry out his tasks and his layoff) might give rise to some suspicion in other circumstances, the complainant’s right to a hearing on this point is very seriously undermined by the fact that he practically taunted the respondent into doing precisely what he now complains about.

Extensive evidence was given in any event about the respondent’s trading situation and the pattern of layoffs in January (6), February (1), March (3) and April. This was added to by evidence in relation to the decline in the demand for the specific products.

In relation to the claim for payment during layoff I accept the respondent’s submissions on the applicable law.

In this case, non-payment of wages during lay off is provided for as part of the complainant’s contractual terms and by the custom and practice in his sector.  Accordingly, no claim for loss of wages arises.

There are two further complaints.

While the complainant made an error in the legislation specified in relation to complaintCA-00043255-001 this is not, of itself, fatal to a complaint.

The WRC complaint form is a non-statutory form and once the nature of the complaint is clear and the respondent is properly on notice of the nature of the complaint, the ‘letter of the law’ response offered above by the respondent will not suffice.

That said, the nature of the complaint is not clear insofar is it has not specified a breach of the Terms of Employment (Information) Act 1973 if that is what the intention was.

Complaint CA-00043255-003 relates to the failure to give notice of the layoff.

As noted by the respondent there is no statutory requirement to give employees notice in a lay off situation and this complaint is misconceived.  

Decision

For the reasons set out above complaints CA-00043255-001, 003 and 004 are not well-founded

Recommendation

For the reasons set out above dispute CA-00043255-002 is dismissed.

Payment on lay off. Selection for lay off. Covid-19 Pandemic