Complainant

Respondent

Anonymised Parties

A Worker

A Named Person and A Named Engineering Company

Representatives

SIPTU

 Regan McEntee & Partners and RVW O’Reilly Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00045146-001

12/07/2021

The worker lodged a trade dispute under section 13 of the Industrial Relations Act 1969. The Union states that the worker commenced employment with the Named Engineering Company in September 2001 and remained on the Site until May 2005. The Union maintains that the worker was welcomed on site and to the other employment team by Mr CD, owner of the Named Engineering Company. Subsequently the worker learned that Mr AB, the Named Person was the pay master who received wages through the main Employer that was rarely passed on to its member; this arrangement by the Named Engineering Company occurred without consultation with the worker.

The Union contends that the worker had a continuous claim for wages and Mr AB, by way of response, always claimed that Mr CD had not passed on the wages. In the case of Mr CD, he always claimed that he had passed on the wages after taking out any deductions and claimed that he had given Mr AB “every penny” but said "he could not tell how much that was."

The Union submits that the worker never received a payslip, and the foreman, Mr TF kept a record of the hours worked but in the absence of a payslip, the worker never knew what was his basic hourly rate of pay.

The Union states that the worker was aware that there was an additional €15 per day bonus for working underground which is questionable if he ever received this payment, the worker worked for two full years underground during the 4+ year employment period and had a blended arrangement of surface and underground working.

The Union states that the worker raised a grievance with Mr. AB regarding his pay on a continuous basis with no resolution to date. The Union contends that the worker has continued to pursue this with Mr AB and Mr CD on an ongoing basis ever since his employment ended.

The Union submits that the medical opinion given to the worker by his health professionals was that he needed to bring his dispute to a conclusion, hence this process is part of his rehabilitation. The Union submits that it was stated by Mr. AB that "all of us that worked on the new one-kilometre Conveyor would receive a €2,000 finishing bonus from the supplier." This payment was being sanctioned by the supplier and manufacturer. The Union states that the worker did not receive this payment. The Union contends that its member, after years of medical treatment, raised this matter again in September 2019 on this occasion with Mr CD, who remarked "Ah you didn't starve did you” and walked away.

The Union maintains that the worker had been told repeatedly by Mr AB over the years and as recent as the 21 May 2020, on two separate occasions, that "he knows he owes me a lot of money but he didn't have to pay". He also claimed that he mentioned his debt to his accountant and his "accountant laughed it off” hence the legal entitlement hiding ground.

The Union states that the worker, on occasions, would receive an amount of no more than €120 - sometimes less - dropped in the home letterbox which would be followed by a phone call to report for work to the foreman of the Named Engineering Company. The Union contends that in one month, the worker received €120 for an entire month’s work which should have included the €15 per day bonus for underground working for the month. The Union states that on another occasion after working 5 weeks, the worker received €230.

The Union contends that while the worker did try in recent times to get bank records, he was advised this was not possible by bank staff. The Union maintains that the worker would also be asked to do overtime which again was not covered in any pay terms to its member.

The Union states that it entered correspondence with both legal representatives which among other relevant issues, clearly identified the level of unpaid wages owed to their member which was calculated using actual Revenue Income Returns and the Construction REA minimum rates of pay at the time of employment that applied.

The Union contends that Mr AB is hiding behind his accountant’s advice that there is no legal responsibility to demonstrate what was the pay terms applied to the worker. In a similar approach the only defence that the Named Engineering Company have is that they passed on the wages to Mr AB.

The Union maintains that both entities are not actually disputing the main gravity of its claim that wages were not paid weekly and the hourly rate of pay at best was an hourly rate of €5.20 that got passed on occasionally through Mr AB to the worker. The Union contends that neither entity have shown any evidence to the contrary.

The Union states that the worker received pay from Mr. AB for each year as follows based on  Revenue records, in 2001 - €1630, in 2002 - €8244, in 2003 - €9622, in 2004 - €10,456 and in 2005 - €4424, total earnings of €34,376.

The Union states that in 2005, the construction minimum wage was €13.48 and in 2001 the legal minimum wage in Ireland was €6.00 per hour which increased annually to €7.65 in May 2005. The Union contends that neither calculation was ever applied to the worker during his 4+ years employment. The Union contends that when the differential is applied based on the €13.48 minus €5.20 giving a shortfall of €8.28, this leaves the worker out of pocket in the amount of €54,250 gross loss over his employment period of 2001 to 2005. The Union states that this calculation does not consider the underground allowance of €15 per hour per day or the bonus payment of €2,000 for completion of the Conveyor work.

The Union cited Article 22 – Contract Maintenance of the Collective Agreement relating to Craft Unions which was read into the hearing and states; “It will be necessary for the Company to employ outside Contractors for various durations, for maintenance and other engineering work. Such requirements shall be determined solely by the Company. The Company will ensure that, as far as possible, Contractors will employ members of Signatory Unions of the Maintenance Craftsmans’ Agreement.” 

The respondent submits that in the complaint form, the Employer’s details are completed as A Named Person AB trading as A Named Engineering Company {my emphasis}. It states that the Named Engineering Company is a Limited Liability Company which was incorporated on 21 September 1976 and the company continues to trade. The respondent states that AB is not a Director or shareholder or manager of the company and at no time traded as the Named Engineering Company. It states that the Named Engineering Company employed AB who in turn employed the worker.

The respondent maintains that the complaint was lodged on 12 July 2021 and relates to a period of employment from 2 September 2001 to 29 May 2005. It states that a period in excess of sixteen years has lapsed since. The respondent contends that the records are not, in the normal course of business retained for sixteen years, and in particular Mr. AB will state that whilst he has a full memory of the worker being employed by him, he no longer has paper records. The Employer states that it is clearly contrary to natural justice to seek to proceed with a complaint relating to an alleged trade dispute where sixteen years have elapsed before notification is received.

It was submitted that while the worker asserts that his employer failed to fulfil his contractual obligations and site company union collective agreements, no details have been furnished in relation to same. The Employer states that it is not aware of the basis of the claim that it failed to fulfil contractual arrangements. It states that it is not an appropriate basis for reference pursuant to provisions under the Industrial Relations Act, 1969.   

I have carefully considered the information given by all parties in the within trade dispute. I note that the worker’s employment ceased with the employer on 29 May 2005. I note from the Unions arguments put forward, the distress and anxiety caused to the worker as a result of the respondent failing to fulfil its contractual obligations and site company collective agreements and his struggle to get a fair and reasonable outcome in relation to the issues raised. I note Article 22 – Contract Maintenance of the Collective Agreement where it states; “It will be necessary for the Company to employ outside Contractors for various durations, for maintenance and other engineering work. Such requirements shall be determined solely by the Company. The Company will ensure that, as far as possible, Contractors will employ members of Signatory Unions of the Maintenance Craftsmans’ Agreement.” 

I am also very cognisant of the point raised by the Union where it stated that the medical opinion given to the worker by his treating health professionals was that he needed to bring this dispute to a conclusion as part of his rehabilitation process.

Having very carefully considered all the matters put forward in the within dispute, I find that the worker has a well-founded grievance. Given the unique and special circumstances pertaining in the within dispute and in an effort to bring the matter to finality and get closure for all parties concerned, I recommend that the respondent pay the worker financial compensation in the amount of €3000 in full and final settlement of all matters outstanding in the within dispute.

I find that the worker has a well-founded grievance. Given the unique and special circumstances pertaining in the within dispute and in an effort to bring the matter to finality and get closure for all parties concerned, I recommend that the respondent pay the worker financial compensation in the amount of €3000 in full and final settlement of all matters outstanding in the within dispute.

Trade dispute, Industrial Relations Act