Complainant

Respondent

Parties

James Quinn

Brandrake Plant Hire Ltd

Representatives

  Self

 Terry Gorry & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00033688-002

09/01/2020

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

CA-00033688-004

09/01/2020

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

CA-00033688-005

09/01/2020

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

CA-00033688-006

09/01/2020

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

CA-00033688-007

09/01/2020

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

CA-00033688-008

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033688-009

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033688-010

09/01/2020

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

CA-00033688-011

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033688-012

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033688-013

09/01/2020

The Complainant is a grounds worker/lorry driver. He commenced working for the Respondent in January 2013. His employment ended on the 1 November 2019.

His worked on various site locations throughout the country. The work involved roadworks. The Complainant submitted that he did “a bit of everything” e.g., a lorry driver, machine operator, excavator, grader driver, roller driver, dozer, Class I lorry driver, labourer, tractor driver, recycler operator etc.

The Complainant only received pay slips a few months before the employment ended.

The Complainant submitted he worked between 39 and 68 hours per week. He kept a diary of the hours he worked and made contemporaneous notes in it each day.  He produced this diary at the hearing.

The Complainant explained that the Managing Director relied on him keeping a record of his work hours.  He explained that the Managing Director would ring him looking for a breakdown of what hours he worked to calculate his pay.

The parties seem to have a good working relationship until weeks 41, 42 and 43 of 2019. Around this time, a co-worker of the Complainant had a grievance with the Respondent regarding payment for his hours worked. This spilled over into the Complainant's relationship with the Respondent.

CA-00033688-002

The Complainant case was that on 17 October 2019 he received his payslip by email. It set out that he had worked 39 hours as a standard rate and six hours overtime. The Complainant's case was that he was not paid for 16.5 hours that week.

CA-00033688-004

The Complainant submitted that he was not paid in accordance with the Sectoral Employment Order (Construction Sector) 2017 and Sectoral Employment Order (Construction Sector) 2019 which came into force on the 1 October 2019 one month before the employment ended.   

CA-00033688-005 and CA-00033688-006

The Complainant submitted that he left the Respondents yard sometimes as early as 5.00 a.m. and returned to the yard as late as 10.00 p.m.  This was repeated regularly throughout his time working with the Respondent.

I asked the Complainant for examples of his working hours to cross reference with the records maintained by the Respondent.

The Complainant gave his hours for the week 24 June 2019. On Monday he said he worked between 6:30 AM and 6:30 PM, Tuesday 6:15 AM to 6:15 PM, Wednesday 6:30 AM to 6:30 PM, Thursday 6:30 AM to 6:30 PM and Friday 6:30 AM to 5 PM. He was paid for 56 hours that week.

The Complainant gave his hours for the week 9 September 2019. His start time was 6.30 a.m. each morning. His end time on Monday was 7 PM and for the rest of the week was 5.30 PM.

The Complainant gave examples of his working hours when he was required to work in Bundoran, Co. Donegal. That site was an hour and a half travelling from the Respondent's yard. The Complainant left his home at 6:30 AM and returned home at 8 PM. This was on 23 September 2019.

The Complainant was instructed by the Managing director or the Office manager as to what sites to travel to / what work to do. The Complainant explained that after leaving his home, he was required to collect a co-worker before he travelled onto the site location.

The Respondent's yard/place of business was in Granard, Co Longford. The Complainant had to work in Counties Meath, Wicklow, Carlow, Sligo, Donegal. This involved a long travelling time from the Respondent's yard to the site locations.  The Complainant drove a company vehicle either from his home or from the Respondent's yard. 

He explained that when working on Local Authority work, the hours of work were 8.00am. to 4.30p.m.

He explained to me that his longest working hours were between the 23 September 2019 and 23 October 2019 which involved working in Sligo.

CA-00033688-007

This complaint was withdrawn at the hearing.

CA-00033688-008

The Complainant submitted that he did not receive his starting and finishing times in advance.  His evidence is set out above for CA-00033688-005 and -006. He stated that he was told the previous evening that was required of him the following day.

CA-00033688-009

The Complainant submitted that he did not receive the required terms of information/contract in writing.

CA-00033688-010

The Complainant submitted that he was not notified of the change to his terms of employment in writing. This related the unilateral action on the part of the Respondent to reduce the hours he was being paid for.

CA-00033688-011                                                                                                                                               This complaint related to the terms and conditions laid down by the construction SEO.

CA-00033688-012

This complaint related to receipt by the Complainant of core terms of his employment.

CA-00033688-013

The Complainant resigned from his employment following the unilateral deduction by the Respondent of 16.5 hours from his wages which were due to be paid to him on the 17 October 2019. 

He explained that he received his payslip by email and noted the missing hours. He telephoned the Managing Director the following day, but the call was not answered. The Managing Director telephoned him back 30 minutes later.

The Complainant asked he Managing Director "what's the story with my wages"? The Managing Director replied, "what the f..k do you want" and repeated that 3 to 4 times during the telephone call. He said to him "aren’t you're getting €800 a week what the f..k more do you want". The Complainant explained that the Managing Director kept shouting him down during the call. The Complainant said he could not believe what he was listening to. At the end of the call, he said to the Managing Director "if that's the way you want to be, I'm giving you two weeks’ notice" and he hung up.

The Complainant telephoned the Managing Director again the following Monday. The call was answered for four seconds and the Managing Director hung up.

CA-00033688-002

The Respondent's case is that the Complainant's pay was increased during his employment. In January 2019 is rate of pay was €18.36 gross per hour. In payroll week 40 2019, his gross hourly rate was €18.86.

It submitted that the Complainant was paid for the hours he worked (on-site) and there was no agreement regarding being paid for his time travelling.

CA-00033688-004

The Respondent's case is that it is outside the scope of the Sectoral Employment Order (Construction Sector) as it is a company primarily involved in road maintenance activities.

CA-00033688-005

The Respondent disputed is that the Complainant did not receive his daily rest periods. It submitted that the contracts it worked on required all workers to have daily rest periods.

CA-00033688-006

The Respondent provided the Complainant's hours of work. It submitted that from the records it was clear that the average over 3/4/5/6 months did not exceed 48 hours per week as permitted by section 15 of the Organisation of Working Time Act 1997.

CA-00033688-007

This complaint was withdrawn by the Complainant at the hearing.

CA-00033688-008

The Respondent's case was that the hours worked by the Complainant were regular in nature and were notified to all employees in good time. It submitted that any changes to working hours would be notified verbally if required.

The Respondent noted that the Complainant worked for 6.5 years and never raised a complaint in this regard during that time.

CA-00033688-009

The Respondent submitted that the Complainant received his terms of employment on the 18 February 2013 the day he started working with the Respondent. It submitted a copy of same to me.

CA-00033688-010

The Respondent denied that there was any change to the terms of the Complainant's employment.

CA-00033688-011

The Respondent did not accept that it fell within the Sectorial Employment Order for the construction sector.

CA-00033688-012 

The Respondent submitted that this was a duplicate of complaint CA-00033688-09 

CA-00033688-013

The Respondent accepted the Complainant submission that in the six years he was employed by it, he never had any issue in respect of his employment. The Respondent submitted that this spoke volumes of the relationship the Complainant had with it.

It explained that following one heated telephone call with the Managing Director, the Complainant resigned immediately without exhausting the internal procedures available to him to ventilate any issues he had.  The Complainant could have spoken with the supervisor/office manager if he had a grievance. It maintained that the Complainant did not give it the opportunity to put right what he was saying it had done wrong.

The Managing Director and the Supervisor gave evidence. The Managing Director stated that the Complainant was very aggressive during the telephone call. What is in dispute was just €70. The Complainant gave him two weeks’ notice of his resignation. That was the first argument they ever had. He was very surprised with his resignation, but he accepted his decision. He admitted that he may have been caught on a bad day. He said he was very disappointed to lose the Complainant as an employee.

Regarding the weekly reward system, he stated that the employees had no involvement in the rounding up of the hours that it decided to grant in their wage slips.

It submitted that the Complainant may have resigned in the heat of the moment or without rational thought. It did not accept that any of its actions lead the Complainant to that point. It submitted that the Complainant could not show breach of the employment contract or unreasonable behaviour on the part of the Respondent.

The Respondent submitted that when the conduct of the parties was examined, it was unreasonable for the Complainant to resign and claim that the conduct of the Respondent compelled this course of action.

It referred to several cases setting out the two-tiered test required to establish constructive dismissal.

The Complainant's case for claims number 2, 4 and 11 are all based on whether he is covered by the Sectorial Employment Order (Construction Sector) 2017 and 2019 hereinafter called the SEO. The class, type or group of workers to whom the order applies is persons employed in the Construction sector. The Schedule of the SEO sets out a definition of the sector. It refers to the

"Construction, reconstruction, alteration, repair, painting, decoration and demolition of roads, paths, curbs, bridges, viaducts… works for the purpose of road drainage…

The SEO provides for higher hourly rates of pay based on this skills, qualifications and work carried out by various workers in the sector.

A category A Worker includes crane drivers and heavy machine operators. From the 1 October 2019 the basic hourly rate of pay for a category A Worker is €18.86 per hour. This is the rate of pay that the Complainant was paid and the earlier Category A Worker rate (under the 2017 SEO) of €18.36 per hour.

The SEO set out that the normal working week shall be 39 hours between Monday and Friday each week. It sets out that normal daily working hours consists of four days of eight consecutive hours work undertaken between 7 AM (normal starting time) and 5 PM (normal finishing time) Monday – Thursday inclusive and one day of seven consecutive hours work between the 7 AM (normal starting time) and 4 PM (normal finishing time) on Friday.

Overtime or premium rates are described in the SEO as

Monday to Friday from normal finishing time to midnight              time +1/2

Having considered all the evidence presented to me, I find that the Respondent work fell within SEO work definition above. I find that the Complainant was employed by the Respondent in various roles that qualified him as a Category A Worker and that the SEO applies to his employment.  By its own admission, the Respondent agreed that it worked on maintaining roads.  The Complainant described himself as a grounds worker / lorry driver.  He gave evidence that he operated heavy machinery.  He was paid the rate applicable to Category A Worker of €18.36 and €18.86 per hour by the Respondent. 

The SEO did not make any recommendation on travel allowance in 2017 or 2019.

Working Time is governed by the contract of employment and regulated by the Organisation of Working Time Act 1997. This Act implements in Ireland the requirements of Directive 2003/88/EC (the Working Time Directive).

I find that the Respondent did accept the Complainants working hours as including travel time to sites and it had paid him for that time until the dispute arose in week 41.

In its submission the Respondent referred to a weekly reward system based on the performance of employees. This resulted in the payment of additional hours to individual employees. The Respondent submitted that while this was an undocumented procedure it has since changed within the Respondent company. The Respondent gave an example of week 16 in which the Complainant worked for a total of 32 hours but was paid for 42 hours.

The Complainant disputed there was any such reward system and had no knowledge of it.  As far as he was concerned, he was being paid for the hours working including travelling to the site(s) he was working on. 

From my review of the Respondent’s record of hours worked, the Complainant was paid more than the hours that it claimed the Complainant worked each week in 2019 (apart from when he was on annual leave).

I queried several the Respondent’s hours worked records as against the Complainant’s own records at the hearing.  On reviewing the detail kept by the Complainant and the payment made by the Respondent, the records kept by the Complainant were more credible.  They matched the hours that the Complainant was paid each week apart from week 41, 42 and 43 which were in dispute.

I am at a loss as to why the Respondent maintained the records it did.  I accept the Complainants evidence that he was the only one that maintained record and that the Respondent paid him based on his records. 

CA-00033688-002

I accept that the Complainant was paid the applicable rate of pay for a Category A Worker for his normal working time. I do not accept that the Complainant received the overtime premium rates that applied to his overtime working.  This complaint is well founded. 

CA-00033688-004

This complaint is a duplication of CA-00033688-002 but as regards non-payment of the overtime rate set out in the SEO.

This complaint is well founded. 

CA-00033688-005

Section 11 of the Act provides as follows: “An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer”

Based on the analysis of the Respondents work records and discrepancy between same and the hours paid to the Complainant, the Respondents records are not reliable.

At the hearing, the Complainant identified weeks 39, 40, 41 and 42 as the longest hours that he worked in 2019.  For week 39 he was paid 64 hours.  For week 40 he was paid 62 hours.  He explained that for those weeks he was working on a project in Sligo.  He gave an example of the 23 September 2019 when he left his home at 6.30 am and returned home for 8.00 pm.  He was not afforded 11 consecutive hours rest between shifts by his Employer.

No evidence was given to me of compensatory rest allowances made in his roster to offset the lack of daily rest breaks he was deprived of for the time he was working on the Sligo project.

This complaint is well founded.

CA-00033688-006 The relevant parts of Section 15 of the Organisation of Working Time Act provides 1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceeda) 4 months, or not relevantb) 6 months The Complainant submitted that he was regularly scheduled to work in excess of 48 hours per week.  He stated that 62-64 hours were standard. 

I reviewed the four-month period leading up to the termination of his employment, excluding weeks 41 on that were in dispute.

I also reviewed the six-month period leading up to the termination of his employment, excluding weeks 41 on that were in dispute.

I was provided with evidence that the hours the Complainant was paid for between week 24 and week 40 was 897 hours which is an average of 54.93 hours per week over this 4-month period.

The evidence of the hours the Complainant was paid for between week 14 and week 40 was 1314 hours which is an average of 50.54 hours per week over this 6-month period.

Therefore, I find the Complainant was required to work more than an average of 48 hours in the reference period.  This complaint is well founded.

CA-00033688-007                                                                                                                                               This complaint was withdrawn at the hearing

CA-00033688-008

An employee is required to be provided with at least 24 hours’ notice starting and finishing times and of any additional hours they are required to work. This is set out in Section 17 of the Organisation of Working Time Act. 

From the record of hours worked and paid, the Complainant worked irregular hours.  Section 17(2) provides that the employer “shall notify the employee subject to subsection (3), at least 24 hours before the first day or as the case may be the day in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours ..”. The notification in this case is mandatory and is subject only to the provisions of subsection (3). Subsection (3) has no bearing on this case.

From the evidence of the Complainant and wages paid by the Respondent, the Complainant worked additional hours each week of the 13 weeks before the employment ended.  The additional hours worked varied depending on the journey to be travelled to the site of the work.

I find that the frequency of the additional hours was such as to render them reasonably foreseeable and accordingly I find this complaint well founded.

CA-00033688-009

The document dated 18 February 2013 presented to me as a statement of the Complainants terms and conditions does not meet the requirements of Section 3 of the Terms of Employment (Information) Act 1994.  In particular section 3(c), (e),(fa),(ga)(h), (i) and others.  I find this complaint well founded. 

CA-00033688-010

Section 5 of the Terms of Employment (Information) Act 1994 sets out

5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect

As set out in CA-00033688-009, I find that the Respondent did not furnish a statement required by section 3 of the Act and sections 4 and 6 do not apply. 

This complaint is not well founded due to this technicality.

CA-00033688-011

The Complainants case was that he was not provided with his overtime payment for some of his employment.

He did receive his overtime payment on weeks 41, 42, 43 but for lesser hours than he claims he should have.

The Complainant was not paid the overtime rate set out in the SEO (time and a half) on the following sample weeks 26,29,30,31, 32, 33,34,37, 39 and 40.

I find this complaint well founded.

My jurisdiction is set out in s. 23 of Industrial Relations (Amendment) Act 2015.  The legislation is clear and the Complainant is not limited to recovering the actual monetary value of the payments or entitlements that I have found were withheld.   In reaching the decisions set out in this document, I have been mindful of my authority to award compensation that is just and equitable, subject to a limit of two years’ pay for any breach of a relevant provision of the Act.

CA-00033688-012 

Because the Complainant commenced with the Respondent in 2013, the 2018 amending legislation does not apply to him.

CA-00033688-013

This is a case in which the Complainant claims that he was constructively dismissed.

 Section 1 of the Unfair Dismissal Act 1977 as amended defines

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

 (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…. (emphasis added)

 Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment.  The conduct of the employer must amount to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”. The second test set out in Section 1 is the issue of reasonableness. This involves asking if the employer conducted his or her affairs in relation to the employee so unreasonably that the employee could not fairly be expected to put up with it any longer.

The Complainant has submitted that his when he raised the query he had on his reduced wages, his employer was “ready to attack him”.  They spoke on the call for two minutes and during that time, the Managing Director talked over him.  He reached the conclusion on the call that it was pointless discussing the issue any further and he made up his mind there and then to give two weeks’ notice of his resignation. 

Having considered all the evidence, I find that while the Respondent had taken the unilateral action of not paying the Complainant overtime / travelling time which it had for similar projects, in cases such as this I must examine the conduct of both parties. A Complainant who seeks to invoke the reasonableness test must also act reasonably by providing the Respondent with an opportunity to address whatever grievance he or she may have. The Complainant must demonstrate that he/she has pursued their grievance through the procedures laid down in the contract of employment or SI146 of 2000 before resigning (see Conway v Ulster Bank Limited UD 474/1981).

I note that the Complainant made the decision to resign quite quickly and said that he was not familiar with the Respondents Grievance Procedure or complaints procedure.  He made his decision based on his view of the Managing Director’s temperament.  He said that it would be a waste of time to give the Respondent some time to put right what had been done wrong.  He said “once he had crossed the path of the Managing Director, that was it.  He had seen what the outcome would be down the line over the years”.   

The Complainant was a long-standing employee of the Respondent.  The bar is high in complaints of this type (constructive dismissal), and I find that the failure of the Complainant to raise his grievances and give the Respondent and opportunity to deal with them was not a reasonable response to the situation he found himself in. 

I find that this complaint is not well founded.

I have considered the various claims raised by the Complainant and has taken into account the decision of the ECJ in the case of Sabine van Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] Case 14/83 ECR 1891in coming to a conclusion on the appropriate remedy in the applicable complaints.

CA-00033688-002:  This complaint is well founded.  I award the Complainant his wages of €302.94 and compensation of €1,750.00 I have calculated this as 2 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68)

CA-00033688-004 :  This complaint is well founded.  I award the Complainant compensation of €1,750.00.  I have calculated this as 2 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68)

CA-00033688-005:  This complaint is well founded.  I award the Complainant compensation of €3,500.00.  I have calculated this as 4 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68)

CA-00033688-006:  This complaint is well founded.  I award the Complainant compensation of €3,500.00.  I have calculated this as 42 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68)

CA-00033688-008:  This complaint is well founded.  I award the Complainant compensation of €877.00.  I have calculated this as 1-week gross wages (based on an average of 47 hours per week worked in 2019 * €18.68)

CA-00033688-009:  This complaint is well founded.  I award the Complainant of compensation of €3,500.00 I have calculated this as 4 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68).

CA-00033688-010:  This complaint is not well founded. 

CA-00033688-011:  This complaint is well founded. I award the Complainant of compensation of €4,600.00 I have calculated this as 6 weeks gross wages (based on an average of 47 hours per week worked in 2019 * €18.68).

CA-00033688-012:  This complaint is not well founded. 

CA-00033688-013:  This complaint is not well founded. 

Sectoral Employment Order Construction.  Working time.  Constructive dismissal.