Complainant

Respondent

Parties

Graham  Kealy

Blacklough Construction Limited

Representatives

Stephen O’Sullivan, BL, instructed by  Kent Carty Solicitors

Katie Hughes, McDarby & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00047459-001

02/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00047459-002

02/12/2021

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

CA-00047459-003

02/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00047459-004

02/12/2021

The complainant worked for the respondent for a period of just over 6 months as a crane driver/operator.  He had an issue with not having a Banksman and left the site.  On his return he claims that he was locked out and therefore dismissed.  He believes that he was penalised for raising a health and safety issue.  In addition to this the complainant did not receive a notice payment and was not properly paid for the hours he worked.  He also claims that his working hours were in excess of those permitted under the Organisation of Working Time Act, 1997.  The respondent denies the claims and submits that the complainant left the site and did not return.  He was not penalised and is not due any notice pay in these circumstances.  His pay was correct for the hours worked and the respondent disputed the weekly working hours as submitted by the complainant.  The complainant commenced working for the respondent on 14/4/2021 and was paid €21 per hour.  The employment ended on 11/10/2021.

The complainant is a licenced tower crane operator.  He commenced employment with the respondent on 14/4/2021 on the respondent’s building site at Carrickmines, Dublin.  He was paid €21 per hour and worked 60 hours per week. In his evidence the complainant stated that he became a tower crane operator following a period of training and experience.  To obtain this qualification an operator needs banksman experience and in order to maintain the licence an update must be provided every four years to demonstrate continuous employment in the role.  The complainant does not recall receiving a contract of employment and in his evidence stated that the agreed rate of pay was €21 per hour.  His working hours were initially 7.00am to 6.00pm.  He confirmed that he usually received paid breaks of 30 minutes at 10.00am and 30 minutes at 1.00pm.  These could vary depending on the needs of the site.  He would usually arrive at 6.45am and leave at 6.00pm or later.  The hours could vary, and he would finish at 5.00pm on Fridays.  He reported to the site manager, Mr Michael Felle. The complainant was not given any records of his working times.  The complainant gave evidence in relation to the role of a banksman.  The banksman is the signaller or person who oversees the operations of a crane at a site.  This includes assisting in the loading of materials for the crane lift and ensuring that any lift is carried out safely and securely.  The banksman must have a licence, commonly referred to as a “Ticket” and is in direct communication with the crane operator by means of a two-way radio.

The complainant submits that there was no banksman on site when he commenced.  This was a start-up site and he helped train in a colleague who subsequently got a qualification in June/July 2021.  The complainant confirmed that there were potentially four radios who could be in contact with the crane operator.  Some of these were held by labourers and scaffolders.  It was the complainant’s evidence that as a crane operator he needs to know that banksmen are qualified in order to ensure site safety and the safe operation of the tower crane.

The complainant gave evidence that he had various conversations with Mr Michael Felle about the need to have a qualified banksman.  The reasons for this were that you cannot operate a crane with unstable loads or having the wrong slings in place.  The complainant gave evidence that the person who obtained the qualification left in July 2021 following an injury.  The complainant was asked about the banksman supplied by a sub-contractor, Mr G.  The complainant explained that this was a subcontractor and left before the end of his time.

The complainant outlined his recollection of the events of 11/10/2021.  He was on site and operating the crane.  He received a radio message to say that scaffolding had slipped, and he was asked to put the crane chains down to hold the scaffolding.  The complainant spoke to the scaffolder and said that he would not do this.  The site manager came on the radio and said that he had to do it.  The complainant refused and came down from the crane and went for lunch in a nearby fast-food restaurant.  This was approximately 1.45pm and he took 40-50 minutes for lunch.  He received a phone call from Mr Michael Felle, site foreman, and was told by him not to come back.  The complainant returned to the site, and he saw the crane moving.  He did not know who the operator was, and he did not see any banksman.  At the site entrance Michael Felle stood in front of him and closed the gates and secured them with a rope.  He asked Michael Felle if he was dismissed and Mr Felle did not reply.  He was taking a video of this interaction at the time.  The complainant submitted that the video which showed the crane moving very slowly indicated that there was not a qualified operator in place.   The complainant confirmed that Mr Felle locked the gates on him and did not speak to him.  He also denied that he had any alcohol taken that day.  The complainant confirmed that he had no other communication from the respondent since that day apart from an undated and unsigned letter which he did not request, and he could not recall when he received it.  The letter was a statement of employment.  The complainant was asked about a text message he received, and he confirmed that he sent it to the safety officer.  The complainant confirmed that he did not report for duty since that day as he was told not to come back and he took that to mean that he was dismissed.

In relation to his pay slips the complainant was unable to explain why he was paid different amounts.  He confirmed that he was paid two hours “grease” money each day and this was the norm for crane operators.  He again confirmed that his hours of work were 7.00am to 6.00pm and worked ten hours per day.  He also worked some Saturdays. It was put to the complainant that a colleague had told the respondent that he was fed up on site and that he would move off.  The complainant said that the colleague had “no business to say that” as the colleague was employed as a labourer and had no link with the complainant.

The complainant confirmed that he telephoned the Health and Safety Authority (HSA) on the day (11/10/2021) to submit his concerns about what was happening on the site.  He provided details of the name of the site and the company and specifically mentioned that the crane was being operated by an unqualified driver.

The complainant said that he spent some time looking for alternative work  and obtained other work about two to three weeks after this incident.  This incident had an impact on him as he worked hard to get his crane operators licence and the respondent put him risk of jeopardising this.

It was submitted on behalf of the complainant that he worked 60 hours per week but was paid less than that over four different pay periods.  The periods are 30/7/21 [56 hours paid]; 6/8/21 [58 hours paid]; 13/8/2021 [56 hours paid] and 24/9/21 [50 hours paid].

In relation to the alleged breach of the Organisation of Working Time Act (the Act) the payslips show that the complainant was required to work more than 48 hours averaged over a four-month period up to 11/10/2021.  It was also submitted on behalf of the complainant that as the respondent did not exhibit what records it held in relation to the complainant’s working time the accordance with Section 25 of the Act and SI 473/2001 there is a legal presumption of a breach of the Act.

During cross examination it was put to the complainant that the planning permission for the site had stipulated a 7.00am to 5.00pm working day.  The complainant said that the crane operator is usually one of the first on site and the last to leave.  His hours were agreed with him at the beginning of his employment.  The complainant confirmed his breaks as 30 mins at 10.00am and 30 mins at 1.00pm.  He confirmed that if he was involved in doing something then he would finish that job before taking his break.  The complainant was asked if he was ever sent home from work and he confirmed that he was on an occasion when he tested positive for COVID-19.  The complainant denied that he was ever sent home for an alcohol related incident or that he ever received a verbal warning in relation to alcohol consumption.

The complainant was asked to confirm if he ever got paid for days off site.  In particular he was asked about “Rain Days” when work could not proceed due to rain.  The complainant confirmed that the policy was that if you were in by 10.00am you had to stay on site until 2.00pm and then get paid a “Rain Day”.  The complainant outlined that as a crane operator this also applied to windy days when it would be deemed unsafe to operate a crane.

In relation to the incident on 11/10/2021 the complainant was asked if he secured the crane before leaving.  He confirmed that it was and as a crane operator it was the first thing you had to do.  The   crane was in “free sling” which is deemed to be the safe position in case of wind. This allows the crane to move freely in response to the prevailing wind conditions.  The complainant gave detailed evidence of the process that must be undertaken to move the crane in this position.  The complainant also explained that there was a further mechanism at ground level to facilitate putting the crane in the “free sling” position.

The complainant denied that he left the crane in an unsafe position.  He was also asked about the call to the health and safety manager/officer and he confirmed that he made such a call. It was put to the complainant that he rang the wrong person as the person who he called was on maternity leave.  The complainant denied he was confused.  It was put to the complainant that Michael Felle would give evidence that he felt that the complainant had alcohol taken when he telephoned him after the incident.  The complainant said that he could only describe this as “unbelievable and incorrect”.

It was submitted on behalf of the respondent that it is denied that the complainant was dismissed without notice.  It is the respondent’s position that the complainant walked off the site on 11/10/2021 and did not return to the site since then.  The site manager, Michael Felle, rang the complainant and formed a view that he might have had consumed alcohol.

The respondent also denies that the complainant was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005.  No such complaint was made. It is accepted that he made a complaint to the Health and Safety Authority on the day of the incident.

Mr Michael Felle gave evidence that he was the site manager for the respondent at the Carrickmines site.  He has been involved in the construction industry since 1973 and worked for the respondent for two years.  On the day of the incident, 11/10/2021 the complainant was late for work and went straight up to the crane.  It was a normal day and no problems.  At approximately 12.20 he was informed that there was no crane operator and that he had gone.  Mr Felle said that he rang the complainant at 12.40 and he was subjected to abuse from the complainant.  The complainant said that he was “jacking the job” and that he was sick of all of them and hung up.  Mr Felle then asked the subcontractor, Mr G, to come in and assist.  Mr G is responsible for the formwork and concrete contract and he is also a certified crane operator and also a certified banksman.  Mr Felle said that a banksman is a statutory requirement and it is against the law not to have a banksman.  At that time, they noticed that the chains on the crane were down and not in “Free Slew”.  He asked Mr G to go up and rectify this.  Mr Felle was asked to describe how the crane was left by the complainant.  He outlined that it was not in free slew and was left in a dangerous position given the site constraints.  Mr Felle also gave evidence that there was always a qualified banksman.  This was achieved because the subcontractor, Mr G, had to qualified people which he identified as Mr I and Mr M.  Mr Felle also confirmed that their own banksman, Mr X has a qualification for a banksman.

In relation to the incident on 11/10/21 Mr Felle said that the complainant arrived back at the site entrance gate between 2.00pm and 2.5pm.  He noticed him taking photographs and he asked him to stop doing so.  These were the only words he said to the complainant at that time.  The complainant continued to take photographs.  Mr Felle confirmed that the complainant did not report for work the following day and he was not aware if anyone contacted him to ask why.   Mr Felle was asked if there were any previous incidents with the complainant and he replied that the complainant was late on a number of occasions.  He made allowances for the complainant due to a close family bereavement.  Mr Felle recalled that he had two conversations with the complainant in relation to arriving having consumed alcohol.  On one of those occasions he sent the complainant home.  Mr Felle said that the incident on 11/10/2021 was the third occasion where he felt that the complainant had taken alcohol.  Mr Felle confirmed that he had issued two verbal warnings to the complainant.  Mr Felle gave evidence that he did not dismiss the complainant and that the complainant left the site on 11/10/2021 of his own volition.  In relation to penalisation Mr Felle said that there would be “normal on-site bargy” and that he would get complaints from time to time.  Mr Felle explained that all employees are required to wear yellow vests, but the site banksman wears an orange-coloured vest.  This will be different on civil sites where all site personnel wear orange.  In relation to the use of the crane on site Mr Felle explained that this was a new site and the crane operator would have total vision while the first two floors were under construction.  The banksman is necessary, and it is also a regulation.  Mr Felle confirmed that the site opened at 7.00am and that he would be the first person on site and then others would arrive.  He confirmed that the site closes at 5.00pm but there is flexibility and finish time could be 4.30-5.00pm.  Mr Felle said that it was not true that the complainant worked in excess of 60 hours.  The hours of the site were 7.00am to 5.00pm and he was paid for his lunch break and also paid two hours grease time.  The lunch break would usually be 30-40 minutes duration.

Mr Felle was cross examined on his evidence and he confirmed that he had no interaction with the complainant on the 11/10/2021.  He was asked why he locked the gate and the confirmed that he did not lock the gate but tied it. He confirmed that he done this because the complainant told him that he was jacking the job and was fed up.  Mr Felle confirmed that this was the only reason he tied the gates and that he was subjected to expletives when he rang the complainant prior to this.  Mr Felle confirmed that he had given the complainant a lot of leeway in the past.  He also denied that alcohol was not a factor although it was stated in the respondent’s written submission that it was.  The submission stated: “The claimant returned to site some time later and was restricted access to site as it was believed that he had consumed alcohol and could not be permitted to site in those circumstances”.  Mr Felle confirmed that he had no evidence that the complainant had taken alcohol but that the complainant was aggressive to him on the phone earlier.  Mr Felle did not know where the complainant went to for lunch.  Mr Felle confirmed that there was a previous occasion where alcohol was a factor and that the complainant was given a verbal warning.  Mr Felle did not have access to any records as he left the company in February 2022.  He left his diary which contained notes and reminders in the site office for his replacement.  Mr Felle confirmed that the planning permission for the site permitted working between the hours of 7.00am and 7.00pm but following discussions with residents this was changed from 7.00am to 5.00pm. 

It was Mr Felle’s evidence that there could have been “an odd occasion” where work on site went beyond 5.00pm but this was seldom.  Mr Felle denied that the complainant would be the last person to leave the site as the crane work would usually cease at around 4.30pm to allow the block layers to complete the work on hand for that day. Mr Felle gave evidence that he recorded the times that their employees came in to work and left and he would send these to their head office for payroll processing on a weekly basis.  He said that the names of those coming on site were recorded on the sign in sheet.  He would know the names of the people coming in and noted them on the sheet.  Mr Felle did not know if there were time sheets available for the complainant as he was no longer working for the respondent. 

Mr Felle was asked about his telephone call with the complainant on the day of the incident.  He described that the complainant “lambasted me” and said that “I was a ‘such and such’”.  Mr Felle was asked if complainant had previously raised safety issues with him.  He said that they would have discussed “housekeeping type” of issues such as rebar (reinforcing bar) being left around, untidy areas and badly positioned materials.  This did not happen very often and maybe once per week.  Mr Felle was asked if the complainant raised any issues with him in relation to having no banksman.  Mr Felle said that he was “certain not to me”.  Mr Felle was asked if there was a qualified banksman on site from April 2021 to October 2021.  He confirmed that the banksman from the sub-contractor was always available.  Mr Felle was asked if there was evidence recorded of site personnel who were “ticketed” (i.e. had the appropriate permit to operate certain machinery).  Mr Felle confirmed that this was recorded.

Mr Felle was asked if he would describe the telephone call with the complainant as “abusive”?  Mr Felle said that he would describe it as aggressive and the complainant made no mention of any safety issues during that call.  He asked the complainant if he was coming back work and he confirmed that the complainant did not arrive back.  Mr Felle said that he did not say anything to the complainant at the gate as he was not sure what the complainant was doing.  Mr Felle said that the closing of the gate was a normal site practice and they should be closed at all times except when people were going out.

It was put to Mr Felle that there was no qualified banksman on site on 11/10/2021.  Mr Felle confirmed that there were two and he identified those as Mr G and an employee of Mr G’s.  Mr Felle clarified that banksman duties were part of the contract with Mr G.  Mr Felle confirmed that it was Mr G who was operating the crane when the complainant was at the gate and the banksman was Mr G’s employee who was qualified to do so.  Mr Felle confirmed that they obtained an agency crane operator the following day along with a banksman.  Mr Felle also confirmed that he was instructed by his employer on 11/10/2021 to get a crane driver and a banksman after their attempts to directly employ Mr G’s banksman did not materialise.  Mr Felle was asked to explain why he didn’t connect with the complainant after the incident on 11/10/2021 and he replied that he had enough of the complainant at that stage and that he had given him every chance.

Mr Felle was asked about the HSA inspection.  He confirmed that a lady from the HSA arrived on site on 12/10/2021 and asked him to outline what had happened.  He provided her with those details and also what was done to make the place safe.  He did not receive any documentation from this inspector at that time.  He confirmed that he also provided her with evidence in relation to having a qualified crane operator and a qualified banksman.  Mr Felle confirmed that these two were sourced from an agency in Co Cavan who provide crane operators, banksman and teleport drivers.  Mr Felle confirmed that the HSA inspector did not make recommendations or raise any other matters on 12/10/2021 and no improvement notice was received.  The site was never closed.  Mr Felle explained that the site received a Prohibition notice from the HSA, but this was related to a boundary issue.

A director of the respondent, Mr Carroll gave evidence.  He confirmed that he took up the role of director with the respondent about six months ago and was not there at the time of the incident.  He outlined his experience in the construction industry over a 23-year period and also has qualifications in construction and project construction.

Mr Carroll was asked to outline the role a crane plays on a building site.  He outlined that it forms a big part of the site.  There are a lot of Health and Safety matters connected with the crane and there are frequent “toolbox talks” to remind site personnel of this.  There has to be a lifting plan in place and a crane does not move unless this is in place.  Mr Carroll outlined that they currently have seven sites working and there is a banksman on each site.  Mr Carroll was asked how the wages on site were organised and he confirmed that the site manager or site foreman would submit the hours for each employee on a weekly basis to head office for processing.  Mr Carroll was asked about the site hours and he confirmed that the planning approval was for 7.00am to 7.00pm but the site closed at 5.00pm.  Mr Carroll gave evidence that he would be most unusual to see a crane operating after 5.00pm not alone on their site but across the city sites. 

In cross examination Mr Carroll was asked if he had any knowledge of what happened in relation to the operation of the crane on the site from 14/4/2021 to October 2021.  He confirmed that he only knew what he was told and saw.  Mr Carroll was asked if there was any evidence of a qualified banksman being on site and he confirmed that the banksman was part of the sub-contractors package and therefore a banksman had to be provided.  Mr Carroll confirmed that he did not look through any files in relation this incident since his appointment. Mr Carroll was asked about the current arrangements in relation to the crane operator and banksman.  He outlined that following the incident with the complainant a decision was made by the respondent to contract out these two posts and they are provided by a company who specialise in this area.  This was done to avoid having another situation like what happened with the complainant.  The agency is responsible for ensuring that there is a crane operator and banksman on site and there are penalty clauses in place should they default on this.  Mr Carroll confirmed that this arrangement works well for them.

Mr Carroll gave evidence in relation to the technicalities of an HSA inspection and the various outcomes that can arise.  He confirmed that the prohibition notice was in relation to a boundary issue and this took some months to resolve due to the nature of the issue.  A prohibition notice does not result in a site closure but means that a site is given an opportunity to rectify any issue identified by the inspector.  In relation to the inspection on 12/10/2021 a written note of the inspection was received on 22/11/2021.  Mr Carroll noted that this report stated: “Crane driver and banksman ticket are in good order”. Mr Carroll confirmed in evidence that the site hours were 7.00am to 5.00pm.

I have carefully listened to the evidence at this hearing.  The complainant and respondent provided written submissions.  Evidence was heard from the complainant on affirmation and I also heard evidence from two respondent’s witnesses on affirmation.  Witnesses were cross examined by the respective representatives.

The complainant was employed for just over six months at the time of this incident.  There was no contract of employment available for the hearing and it seemed that the respondent was unable to locate one and only had a blank template contract available. 

CA-0004759-001: This complaint is relation to minimum notice and the complainant believes that he is entitled to one week’s minimum notice and he did not receive this.  The fact of dismissal is in dispute and in such circumstances the burden of proof rests with the complainant to prove that he was dismissed. The first issue to be decided is was the complainant dismissed from his employment with the respondent. 

The Unfair Dismissals Act defines dismissal in Section 1 as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6 of the Act provides:

Unfair dismissal. 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2 )…

(3) …

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(5) …

(6) …

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

As the fact of dismissal is in dispute the burden of proof in relation to a dismissal rests with the complainant.  The interaction between the complainant and the site foreman on 11/10/2021 are the key to understanding what happened.  The complainant left his place of work due to concerns about being given an instruction which he felt could jeopardise his licence as a crane operator.  I accept that the complainant had strong feelings about this and in his evidence, he outlined how much be valued that licence and the path that he took to obtain this.  The site manager, on the other hand, states that the complainant left the site and when he rang the complainant he was, among other things, told by the complainant that the was quitting.  The complainant returned to the site gate and made a video recording of the site manager closing and tying the site gate.  The complainant has interpreted this as him being “locked out”.  The site foreman did not engage with the complainant and in his evidence he stated that this was because of the telephone interaction a short time earlier.  The complainant did not report for work again and did not have any contact with the respondent since that day.  The respondent, likewise, did not have any contact with the respondent since that day other than to send a letter (undated) stating that he left the company on his own accord on 11/10/2021 and did not return.   The respondent did not provide any witness to confirm who or when this letter was sent.  If the complainant understood that he was dismissed I would have expected that he would have contacted the respondent to seek confirmation of this and to obtain any correspondence that he required.  I believe that the complainant would have been aware of his rights and is a competent and capable man who could have sought confirmation of his position with the respondent.  As he did not report for work since 11/10/2021 the respondent accepted that he had left his job.  The site manager did have telephone contact with him after he left the site and I accept the site managers evidence that this was unpleasant. I also accept the site managers evidence that he clearly understood that the complainant was not going to return. 

In all the circumstances I find that the complainant’s belief that he was dismissed by the respondent does not stand up to scrutiny and I find that he left his employment on 11/10/2021.  In view of this finding I also find that the complainant is not entitled to one week’s notice pay.  The complaint is not well founded.

CA-0004759-002: This is a complaint of penalisation and it was submitted by the complainant that he was penalised by the respondent by dismissing him.  In that context Section 27 of the Safety, Health And Welfare at Work Act, 2005 prohibits an employer from penalising or threatening to penalise an employee in relation to any term or condition of his employment to his or her detriment if that employee is acting in accordance with safety and health legislation or performing any work or exercising any right under safety and health legislation, including the making of a complaint or other representation about health and safety matters at work. 

The relevant law:  Section 27 of the Health, Safety and Welfare at Work Act, 2005:

27.-(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes –

(a) suspension, lay-off or dismissal (or dismissal within the meaning of the Unfair Dismissals Acts 1997-2001), 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 of any discipline, reprimand or other penalty (including a financial penalty), and

(e)Coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for –

(a)    acting in compliance with the relevant statutory provisions,

(b)    performing any duty or exercising any right under the relevant statutory provisions,

(c)     making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matters relating to safety, health or welfare at work,

(d)    […]

(e)    […]

(f)      Subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, which the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(2) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(3) […]

(4) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(5) […]

It was submitted on behalf of the complainant that the respondent penalised the complainant by dismissing him or taking action to the detriment of the complainant. On 11/10/2021 the complainant was asked to assist in the lifting of collapsed scaffolding using the crane he was operating.

It is not disputed that the complainant left the site on 11/10/2021.  The complainant is clear in his evidence that he decided that to carry out the lift associated with the scaffolding collapse as instructed was unsafe and could have put his crane operators’ licence at risk.  I accept that he is a professional crane operator and used his judgement on the day.  Having done so he left the site and was subsequently contacted by the site foreman.  That telephone exchange resulted in the complainant believing that he was dismissed and the site foeman believing that the complainant was “jacking” his job and not returning.  When the complainant subsequently arrived at the site gate he tried to engage the site foreman without success.  The complainant then left the site and contacted the HSA.   There is no evidence that the complainant made any complaint to the site foreman or any of the respondent’s representatives about his concerns.  Given the serious weight that he applied to this matter it was incumbent on him to ensure that he made the respondent fully aware of his position and allowed the respondent an opportunity to address his concerns.  As previously stated I believe that the complainant understood his responsibilities and was competent and capable of raising his concerns appropriately with the respondent.  His telephone call to an employee on maternity leave was responded to by text and informed that the person he needed to speak to was “Olly” and he was asked if he had rung Michael.

I find that the complainant was not penalised by the respondent by dismissing him.  The complainant’s formal complaint to the HSA was made after he believed he was dismissed.  The complainant made no reasonable attempts to make a complaint to the respondent.

CA-0004759-003:  The complainant is seeking adjudication under section 6 of the Payment of Wages Act, 1991 in relation to the payment for hours worked in the following weeks:

30/07/2021:  paid for 56 hours

06/08/2021: paid for 58 hours

13/08/2021: paid for 56 hours

24/09/2021: paid for 50 hours.

It was submitted on behalf of the complainant that he worked 60 hours per week and the shortfall for the periods outlined is 20 hours.

Section 1 of the Payment of Wages Act, 1991, defines wages as:

“ ”wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including –

(a)    Any fee, bonus or commission or holiday, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise”.

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows:

“5(1) An employer shall not make a deduction from the wages of an employee (or receive payment from an employee) unless –

(a) The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) In the case of a deduction, the employee has given his prior consent in writing to it”.

In determining claims under the Payment of Wages Act the central consideration is whether or not the remuneration in question was “properly payable” to the complainant.  The respondent failed to provide a copy of the complainant’s contract of employment or any document which outlined his terms and conditions.  I was provided with copies of all the complainant’s twenty-eight pay slips for the pay periods pertinent the duration of the complainant’s employment.  An analysis of these show that the complainant was paid for 60 hours on 15 of these payslips.  The respondent has not provided any evidence to confirm why the complainant was not paid for 60 hours on the dates claimed.  Having reviewed the evidence from the complainant’s payslips I find that the complainant was not properly paid for the dates 30/7/2021; 06/08/2021; 13/08/2021 and 14/09/2021.  The total number of hours due is 20.

In view of the above findings I must now consider the issue of redress which is outlined in Section 6 (1) of the 1991 Act as follows:

6 (1) “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of Section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding –

(a)    The net amount of the wages (after the making of any lawful deduction therefrom) that –

(i)                  in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii)                the case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date or payment, or

(iii)               If the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I find that the complainant’s complaint under the Payment of Wages Act, 1991 to be well founded and I direct the respondent to pay the complainant for 20 hours.  The agreed hourly rate is €21.00 gross.  This amount is subject to the normal statutory deductions in relation to pay. 

CA-0004759-004:  It was submitted on behalf of the complainant that he was required to work more than 48 hours averaged over a four-month period ending on 11/10/2021. In the absence of any other records, including time sheets, annual leave or other absence records, I have analysed the complainants basic work hours based on the evidence of the pay slips provided by the respondent for all the 26 pay periods.  When the complainant’s basic hours are averaged out over a range of four-month periods the result is as follows:

April 2021 to June 2021: 53 hours

May 2021 to August 2021: 57 hours

June 2021 to September 2021: 59 hours. 

Section 25-(1) of the Act states:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer”.

Section 27-(3) of the Act provides as follows:

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who by virtue of the change, becomes entitled to such ownership”.

Based on this conclusion  that the complainant worked in excess of 48 hours when averaged over a four month period I find that the respondent breached the provisions of the Organisation of Working Time Act and I find the complaint to be well founded.  I order the respondent (a) to put in place measures which will ensure compliance with the Act and (b) to pay the complainant the sum of €7,400 as compensation which I consider to be just and equitable having regard to all the circumstances.

CA-00047459-001:  In all the circumstances I find that the complainant was not dismissed by the respondent and that he left his employment on 11/10/2021.  I find that this complaint is not well founded.

CA-00047459-002:  I find that the complainant was not penalised by the respondent by dismissing him.  I find that this complaint is not well founded.

CA-00047459-003:  I find that the complainant’s complaint under the Payment of Wages Act, 1991 to be well founded and I direct the respondent to pay the complainant the sum equivalent to 20 hours based on his gross hourly rate of €21.00.  This amount is subject to the normal statutory deductions in relation to pay.  This amount is to be paid no later than six weeks from the date of this determination.

CA-00047459-004:  I find this complaint to be well founded and I order:

(a)     that the respondent put measures in place in order to ensure compliance with the relevant provisions in Section 15 and Section 27 of the Organisation of Working Time Act, 1997,

(b)    I order the respondent to pay the complainant compensation of €7,400 pursuant to Section 27(3) of the Organisation of Working Time Act, 1997. 

(c)     I also order that this amount is to be paid no later than six weeks from the date of this determination.

Penalisation.  Work hours.