Complainant

Respondent

Anonymised Parties

A General Operative

A Construction Company

Representatives

Darren Erangey of Connect Trade Union 

Anthony Brady of Construction Industry Federation

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039424-001

28/08/2020

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

CA-00039424-002

28/08/2020

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

CA-00039424-003

28/08/2020

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant that in most cases WRC hearings are now held in public and decisions will not be anonomised. I also clarified that in most cases evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken on oath and would consider what to do if a serious and direct conflict arose.

I further explained, the judgement does not apply to disputes taken under the Industrial Relations Acts, which will continue to be held in private. Also, the requirement to take evidence on oath is not applicable. As this hearing dealt with complaints taken under legislation covered by the judgement and a dispute taken under the Industrial Relations Act I advised the parties that it was my intention to issue one decision which would be published in an anonomised format. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

CA-00039424-001 – Industrial Relations Act: The worker started working for the respondent as a General Operative on 6 February 2017 and is still employed by them. He submits that during the summer months of 2020 his work as a Stone Cladder/Stone Fixer on site was coming to an end. This was a common occurrence as sites move into new phases. At this stage he would normally facilitate the employer by working as a general operative if requested to do so. However, this time management insisted he work as a Stone Mason. The worker tried to explain to management that he is not a Stone Mason, he is not qualified in this trade and would not feel safe working in this role. He says management dismissed his safety concerns, lack of qualifications and lack of ability to work in this role and insisted if he wants to remain in employment he will have to work as a Stone Mason.

The company unilaterally set targets for the worker and said if he could not reach this target he would be deducted pay. These actions are a clear breach of the legal binding Construction Sectoral Employment Order pay structures and a breach of the worker’s contract of employment.

The employer changed these targets each week which had a huge effect on the worker’s take home pay and ability to earn money. They also insisted he work overtime at flat rate and work weekends for free if the targets were not achieved. This is again a clear breach of the legal binding Construction Sectoral Employment Order and the worker’s contract of employment. Because he did not achieve the targets he was subject to a ‘Performance Review’ meeting on 24 August with the General Manager. The outcome of this review cited it was “totally unacceptable” that the worker was not reaching the ever-increasing targets set by the employer and even threatened to take “disciplinary action” against him.

This practice continued until 16 October 2020 when the worker was placed on temporary layoff.

CA-00039424-002 – Payment of Wages: soon after the complainant commenced employment with the respondent he was quickly recognised as a good hard working trustworthy employee and issued a company van. Shortly after this he was instructed to collect other workers and bring them to work and back home again. This added an average of an extra 3 hours work outside of his basic working day, which constitutes overtime. The complainant approached the respondent about this discrepancy in his pay, but they dismissed his request. The complainant submits he is owed a total of €51,714 in unpaid overtime arising from the time he spends picking up and dropping off colleagues.

In October 2019 the respondent called a meeting of their employees. At this meeting they said they were making changes to their internal structures and following this meeting the complainant was deducted the extra €50 he was being paid for conducting Team Leader duties. After a couple of weeks the complainant questioned if he would be getting this money restored soon and he was told no, but he must remain doing the role as Team Leader.

CA-00039424-003 – Payment of Wages: the complainant was paid an hourly rate of €16.90 per hour from the time he started in February 2017 until January 2021 regardless of the duties he was conducting for the company. He should have been paid in accordance with the Construction Sectoral Employment Order rates of pay for a Category B Worker; from 01st October 2019 to 1st October 2020 that was €17.50. On 1st October 2020 it was increased to €17.97 per hour. It was only in March 2021, having held a conference call with Connect Trade Union, that the General Manager applied the correct rate of pay to the complainant, on his return to work from temporary lay-off. The complainant assesses his loss as a result of this underpayment from 1 October 2019 as €1,048.32.

CA-00039424-001 – Industrial Relations Act: The employer submits the complainant was employed as a General Operative. Stone fixing is an aspect of his job but not the sole aspect and he often undertook other duties. Conversations with the worker in August 2020 were about productivity levels and at no time was the disciplinary procedure invoked. At all times he was paid the SEO rates. If certain targets are reached then it is possible for the worker, and other workers, to be paid bonuses.

CA-00039424-002 – Payment of Wages: the respondent submits the complainant is a Category B General Operative under the Sectoral Employment Order (Construction Sector) 2019. The SEO provides legally binding terms of employment such as rates of pay, hours of work and a dispute resolution procedure. There is no provision in the SEO for a travel allowance and therefore there is no entitlement to same for workers covered by the SEO. The respondent says they have gone beyond their legal requirement in providing the complainant with a company vehicle to drive to work. He is also provided with a diesel card, therefore he does not incur any expense in travelling to and from work.

The complainant alleges his wages were reduced by €50 per week form 3 October 2019. This complainant was lodged on 28 August 2020, which is close to 11 months after the alleged contravention.

CA-00039424-003 – Payment of Wages: the respondent says for the referrable period of this complaint the complainant was paid an hourly rate of €17.50 per hour, in accordance with the SEO. He was paid for the hours worked according to the time sheets submitted by the complainant. The respondent submitted timesheets to show this.

CA-00039424-001 – Industrial Relations Act: The worker clearly felt uncomfortable undertaking what he described as stone mason work and under pressure to reach the targets he was set. The employer says it is necessary for all the workers in the same grade, General Operative, category B, as the complainant to be flexible in the work they undertake. The pay slips supplied in evidence by the employer do not support the worker’s contention he lost wages as a result of not reaching targets set by the employer. He lost the opportunity to earn bonus payments. However, he did find himself subject to a performance review when he had trouble meeting the targets.

The worker is still working for the employer and is likely to be asked to undertake stone mason work again. When this happens I recommend the site manager and the worker have a meeting to discuss the work and what is expected of him and give him the meaningful supports they can. The targets set should be realistic and increased as the employer’s performance increases.

CA-00039424-002 – Payment of Wages: the worker was provided with a van and fuel and asked to bring colleagues to and from the site they were working on. The employer said there was little extra time involved for the worker and he had the use of the van. They saw it as a reciprocal arrangement which had benefits for both sides. It appears the worker’s view of the arrangement changed over time. There is no travel time allowance in the SEO. However, the worker is claiming overtime for the extra time involved in picking up and dropping off colleagues. I conclude this was an informal arrangement which did not suit the worker. In these circumstances I conclude he does not have a claim for overtime and the complaint is not well founded. It should be recognised as an informal arrangement and only entered into where both sides, the employer and the worker, accept it as such, and do so willingly.

The second part of this claim, the loss of a €50 allowance in October 2019, was referred on 28 August 2020 over ten months later. This is outside the six month time limit set out in section 41(6) of the Workplace Relations Act, 2015. The complainant gave no reasonable cause to extend the time limits. I, therefore, conclude this part of the claim is out of time.

CA-00039424-003 – Payment of Wages: the complainant says he was not paid the correct SEO rate of pay. His evidence is based on being paid for working an 8 hour day. The respondent says he was paid for the actual hours worked, according to the timesheets submitted by the complainant, and were paid at the correct SEO hourly rate, their evidence is the payslips given to the complainant. Based on the evidence provided I conclude the complainant was paid at the correct rate and find the complaint is not well founded.

CA-00039424-001 – Industrial Relations Act: the worker is still working for the employer and is likely to be asked to undertake stone mason work again. When this happens I recommend the site manager and the worker have a meeting to discuss the work and what is expected of him and give him the meaningful supports they can. The targets set should be realistic and increased as the employer’s performance increases.

CA-00039424-002 – Payment of Wages: for the reasons given above I find the complainant does not have a claim for overtime and the complaint is not well founded.

For the reasons given above I the second part of this claim is out of time and therefore not well founded.

CA-00039424-003 – Payment of Wages: for the reasons given above I find the complaint is not well founded.

Payment of wages – not well founded