ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040996
Parties:
| Complainant | Respondent |
Parties | Karol Kierschkowski | PCK Allbuilding Services Limited |
Representatives | Self-represented | Self-represented |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052214-001 | 12/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052214-002 | 12/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00052214-003 | 12/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00052214-005 | 12/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052214-006 | 12/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00052214-008 | 2/08/2022 |
Date of Adjudication Hearing: 24/03/2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015, these complaints were assigned to me by the Director General. I conducted a hearing on March 24th 2023, at which I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Mr Karol Kierschowski, represented himself and his former employer, PCK Allbuilding Services Limited, was represented by the company accountant, Ms Iwona Szalska. While the parties are named in this decision, for the remainder of this document, I will refer to Mr Kierschowski as “the complainant” and to PCK Allbuilding Services Limited as “the respondent.”
Background:
The complainant commenced employment with the respondent on May 18th 2022. He said that he was employed as a trainee bricklayer. At the hearing, he said that he is not a qualified bricklayer, but that it’s possible to do the job after two or three days. He worked in construction for eight years before he went to work for the respondent. He finished up after 11 weeks, on July 29th 2022. He claims that he was dismissed, but Ms Szalska, on behalf of the respondent, said that he left of his own accord. The termination of the complainant’s employment is not the subject of any complaint considered at the hearing on March 24th 2023. |
Summary of Complainant’s Case:
CA-00052214-001: Complaint under the Terms of Employment (Information) Act 1994 The complainant said that he asked for a statement of his terms and conditions of employment, but that he was not provided with one. CA-00052214-002: Complaint under the Terms of Employment (Information) Act 1994 Before he was dismissed, the complainant said that his employer asked him to do plastering work. He complains that he was employed as a bricklayer and that his employer did not provide him with written confirmation of this change to his job. CA-00052214-003: Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 On the form he submitted to the WRC, the complainant said that he is concerned that his employer did not keep statutory employment records. CA-00052214-005: Complaint under the Industrial Relations (Amendment) Act 2015 The complainant said that he did not receive the terms and conditions to which he is entitled as a construction worker under the Sectoral Employment Order (Construction Sector) 2021 (SEO). CA-00052214-006: Complaint under the Organisation of Working Time Act 1997 Following his dismissal on July 29th 2022, the complainant said that he was not paid for the public holiday that fell on Monday, August 1st. CA-00052214-008: Complaint under the Industrial Relations (Amendment) Act 2015 The complainant’s rate of pay was €18.00 per hour. He claims that he was entitled to be paid the rate for a “Category B Worker” in the SEO for the construction sector which is €18.47 per hour. |
Summary of Respondent’s Case:
CA-00052214-001: Complaint under the Terms of Employment (Information) Act 1994 At the hearing, Ms Szalska said that when the complainant commenced in the role, she was due to have surgery and she was absent from work for a few weeks. She provided a draft statement of the complainant’s terms and conditions of employment. She said that this was ready to be issued to the complainant when his employment ended. Ms Szalska accepted that this document was not issued to him due to her absence on sick leave. CA-00052214-002: Complaint under the Terms of Employment (Information) Act 1994 Ms Szalska did not dispute the fact that the complainant was not issued with any documentation concerning his job. CA-00052214-003: Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 At the hearing, Ms Szalska provided me with a record of the complainant’s start and finish times each day for the 11 weeks that he was employed by the respondent. The document shows that the complainant worked from Monday to Friday, generally from 7.00am until 3.00pm. During the 11 weeks that he was employed, he worked on three Saturdays from 8.00am until 1.00pm. In total over the 11 weeks, he worked 407 hours. CA-00052214-005: Complaint under the Industrial Relations (Amendment) Act 2015 In the statement of the employee’s terms and conditions of employment which were provided at the hearing, there is no reference to the fact that the employer is a construction company and that terms and conditions for employees in that sector are governed by the SEO. CA-00052214-006: Complaint under the Organisation of Working Time Act 1997 In response to the complainant’s claim that he was not paid for the public holiday on August 1st 2022, Ms Szalska said this was an error. CA-00052214-008: Complaint under the Industrial Relations (Amendment) Act 2015 At the hearing, Ms Szalska confirmed that the complainant was paid €18.00 per hour. She said that this is higher than the national minimum wage. |
Findings and Conclusions:
CA-00052214-001: Complaint under the Terms of Employment (Information) Act 1994 I accept that, in a small company, the absence of a key individual for any reason may impact on the ability of the business to comply with every aspect of employment law and regulations. I note that the respondent provided me with a copy of the complainant’s terms and conditions of employment; however, the fact that this document was not provided to him is a contravention of section 3 of the Terms of Employment (Information) Act which cannot be remedied at this stage. CA-00052214-002: Complaint under the Terms of Employment (Information) Act 1994 At the hearing, the complainant said that he is an experienced construction worker, but that he is not a qualified bricklayer or plasterer. The fact that his former employer had no work as a bricklayer and that he asked him to do plastering does not require confirmation in writing of a change to his job. The SEO provides that a general operative in the construction sector who has more than one year’s experience is considered a “Grade B general operative” and the complainant submitted that he was employed as this category of worker. CA-00052214-003: Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 The complainant was not engaged in a job involving mobile transport activities, and this complaint about the keeping of working time records has been submitted under the wrong legislation. Based on the information provided by Ms Szalska at the hearing, I am satisfied that the respondent had in place a system to record the working time of the complainant. CA-00052214-005: Complaint under the Industrial Relations (Amendment) Act 2015 Apart from agreed rates of pay for workers in the construction sector, the SEO provides that an employer must have in place a sick pay scheme and that the employer and the employee must make contributions to the scheme. The statement of terms and conditions of employment which was submitted by Ms Szalska at the hearing of this complaint makes no mention of a sick pay scheme. The SEO for the construction sector also provides that every employer to whom the SEO applies shall participate in a pension scheme that meets the pensions requirements of the SEO. With effect from February 1st 2022, the employer’s contribution is €28.65 per week and the employee’s contribution is €19.10 per week. The statement of the employee’s terms and conditions makes no reference to this entitlement and it is apparent from the complainant’s payslips that no deduction was made for a pension contribution. In relation to his entitlement to a sick pay scheme and contributions in relation to sick pay, I find that the respondent is in contravention of the SEO. I find that a more serious contravention occurred in relation to the failure of the employer to deduct a pension contribution from the employee’s wages and to make a contribution to a pension scheme for his benefit. CA-00052214-006: Complaint under the Organisation of Working Time Act 1997 On behalf of the respondent, Ms Szalska conceded that the complainant is entitled to a day’s pay in respect of the public holiday that fell on Monday, August 1st 2022. CA-00052214-008: Industrial Relations (Amendment) Act 2015 The SEO provides that a general operative in the construction sector who has more than one year’s experience is considered a “Grade B general operative.” With effect from February 1st 2022, the hourly rate of pay for this category of worker is €18.47. The employer has contravened the pay rate in the SEO by paying the complainant €18.00 per hour. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00052214-001: Complaint under the Terms of Employment (Information) Act 1994 I decide that this complaint is well founded. Over the 11 weeks of his employment, the complainant worked an average of 37 hours per week. I direct the respondent to pay the complainant compensation of €2,734 equivalent to four weeks’ pay at a rate of €18.47 per hour. CA-00052214-002: Complaint under the Terms of Employment (Information) Act 1994 I decide that this complaint is not well founded. CA-00052214-003: Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 I decide that this complaint is not well founded. CA-00052214-005: Complaint under the Industrial Relations (Amendment) Act 2015 I decide that this complaint is well founded. In relation to the contravention of the SEO with regard to the complainant’s entitlement to a sick pay scheme, I direct the respondent to pay him compensation of €100. In relation to the contravention of the SEO pension entitlements, I direct the employer to make a contribution to a pension scheme nominated by the complainant of €315.15, equivalent to the value of 11 weeks’ employer’s pension contributions of €28.65. CA-00052214-006: Complaint under the Organisation of Working Time Act 1997 I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €138.53, equivalent to 7.5 hours’ pay at a rate of €18.47 per hour. CA-00052214-008: Complaint under the Industrial Relations (Amendment) Act 2015 I decide that this complaint is well founded and I direct the employer to pay the complainant compensation of €191.29, equivalent to the shortfall of 47 cents per hour for 407 hours, which is the number of hours worked by the complainant when he was employed by the respondent between May 18th and July 29th 2022. |
Summary of Awards:
For the convenience of the parties, I have summarised below the awards made under each complaint heading.
CA-00052214-001: €2,734 Redress under the Terms of Employment (Information) Act 1994CA-00052214-005: €415.15 Redress under the Industrial Relations (Amendment) Act 2015 CA-00052214-006: €138.53 Redress under the Organisation of Working Time At 1997 CA-00052214-008: €191.29 Redress under the Industrial Relations (Amendment) Act 2015 Total award: €3,479 This redress awarded is compensation is for breaches of statutory rights and is therefore not subject to deductions for PAYE, PRSI or USC. |
Dated: 20th April 2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Statement of terms and conditions of employment, public holiday pay, working time records, Sectoral Employment Order |