ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039685
Parties:
| Complainant | Respondent |
Parties | Alan Hetherington | Laois Hire Ltd t/a Laois Hire Services Ltd |
Representatives | Self - Represented | Gareth Kyne of Gareth Kyne HR |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00051373-001 | 22/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00051373-002 | 22/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00051373-005 | 22/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00051373-006 | 22/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 | CA-00051373-007 | 22/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00051373-008 | 22/06/2022 |
Date of Adjudication Hearing: 10/03/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 ; Section 23 of the Industrial Relations (Amendment) Act, 2015 ; Section 79 of the Employment Equality Acts, 1998 - 2015, Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.
There were no issues raised regarding confidentiality in the publication of the decision.
Background:
The issue in contention concerned a series of complaints that the Complainant, an Apprentice and later fully qualified Heavy Vehicle Mechanic, was not paid the right rate of pay under the relevant Sectoral Employment Order SI 59 of 2018. It was also alleged that he had been discriminated against under the Employment Equality Act,1998 and had never been supplied with proper Employment Information under the Terms of Employment (Information) Act, 1994. These allegations were strongly contested by the Respondent Employer.
The Employment began on the 20th May 2020 and ended on 8th September 2022.
The rate of pay, which was contested, was stated by the Complainant to be € 470.25 for 42.5-hour week at the date of complaint referral. |
1: Summary of Complainant’s Case:
The Complainant was Self Represented and made an Oral Testimony supported by details in his Complaint form and copy correspondence submitted later.
1:1 CA-00051373-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 The Complainant alleged that he had not received the correct rate of pay as set out in Sectoral Employment Order SI 59 of 2018 – (Mechanical Engineering Building Services Contracting Sector) 2018. He began as a Grade Three Apprentice at a locally agreed Rate of €8.24 per hour. Following discussions with Mr PK, the Manager it was increased to €10:00 per hour. Two other Apprentices (Mr C and Mr E) at the same point in the Apprentice Ladder were receiving higher rates of Pay. He was being illegally treated by being placed on the lower rate. 1:2 CA-00051373-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 The Complainant stated that he was not receiving the Terms and Conditions set out in Sectoral Employment Order SI 59 of 2018 – (Mechanical Engineering Building Services Contracting Sector) 2018. This focused primarily on the pay issue stated above in 00051373-001 1:3 CA-00051373-005 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 The Complainant was Discriminated against by virtue of being on a lesser rate of pay to the two other apprentices -his “Comparators”. They were getting €13.65 per hour as opposed to his rate of € 11:00 1:4 CA-00051373-006 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 The Complainant had raised a serious safety issue in April 2022 regarding the Road Worthiness of a particular Volvo Truck. As an Apprentice Mechanic approaching the end of his time, he was qualified to assess the condition of the Truck. The Respondent had reacted very negatively and in effect had blamed his alleged “faulty workmanship” regarding the Truck. He had effectively been “Penalised “by the Employer for raising this Safety issue. A further issue related to a Work Practice with a Truck that the Complainant alleged was very damaging to his Knees. He had asked to transfer to a different Vehicle, but this had been denied and he had been subject to dismissive comments from Mr K. 1:5 CA-00051373-007 Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 The Complainant maintained that he had been “Penalised” by the Employer as a result of raising his concerns under the Industrial Relations (Amendment) Act, 2015. The continued refusal to address his Pay Rates and the general “run around” the Employer was giving him was clearly a case of penalisation. 1:6 CA-00051373-008 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Complainant maintained that he had been given a statement of his core terms which contained false or misleading information. This primarily concerned his rate of pay = the details of which were wrong.
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2: Summary of Respondent’s Case:
The Respondent submitted a Written submission and gave an Oral testimony from Mr PK, the Manager. The chief spokesperson was Mr G Kyne, HR Consultant. 2:1 Opening Statement re Sectoral Employment Order SI 59 of 2018 – (Mechanical Engineering Building Services Contracting Sector) 2018. Mr Kyne submitted a copy of the Statutory Instrument to the Hearing. The Employer was a Plant Hire Company involved in the supply/rental of Equipment only. They did not do any of the types of work listed in the SI under Definitions.
The Complainant was employed as a Heavy Vehicle Maintenance Apprentice fitter at the Respondent’s Vehicle Maintenance Yard in Co Kildare. This was not an activity covered by the Statutory Instrument and as such all complaints of alleged breaches of the Industrial Relations (Amendment) Act, 2015 regarding the Statutory Instrument (the SI) have no proper Legal standing. CA-00051373-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. 2:2 CA-00051373-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. 2:3 CA-00051373-005 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 The Complainant was Discriminated against by virtue of being on a lesser rate of pay to the two other apprentices -his “Comparators”. They were getting €13.65 per hour as opposed to his rate of € 11:00 The Employment Equality Act,1998 has 9 possible grounds of Discrimination which the Respondent listed. None of the Nine Grounds could remotely apply to the Complainant. His issue was a difference in rates of Pay with other Apprentices. There is simply no prima facie Equality case as required by Section 85 A the Burden of Proof Section of the Act. 2:4 CA-00051373-006 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 The issue of Penalisation, under the 2005 Act, can only arise if a formal complaint has been made to either the Employer or an outside Agency. No such complaint was ever made and therefore Penalisation cannot arise. The Respondent takes Health and Safety very seriously and has well documented procedures. The issue with the Volvo Truck in April/May was fully investigated by senior Managers. While there may have been some issue they were not of a level as alleged by the Complainant. As regards the “Knees” incident the Complainant had been issued with Safety Knee pads and the work reviewed by the Respondent Health and Safety Officer. 2:5 CA-00051373-007 Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. 2:6 CA-00051373-008 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Responder submitted full details of Contracts of Employment supplied to the Complainant at time of recruitment and bearing his signature. There could be no suggestion of False or Misleading Information and the Complaint has no standing.
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3: Findings and Conclusions:
3:1 Adjudication comments on Respondent Opening Arguments re Sectoral Employment Order SI 59 of 2018 – (Mechanical Engineering Building Services Contracting Sector) 2018 and complaint under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 Having studied SI 59 of 2018 closely the Adjudication view has to be that the work engaged in by the Respondent plant Hire Company does not come within the terms of the Statutory Instrument. Accordingly claims based on this Statutory Instrument cannot proceed at the WRC. 3:2 CA-00051373-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. This complaint must fail. 3:3 CA-00051373-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. This complaint must fail. 3:4 CA-00051373-005 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 The Complainant alleged that he was Discriminated against by virtue of being on a lesser rate of pay to the two other Apprentices -his “Comparators”. They were getting €13.65 per hour as opposed to his rate of € 11:00 The Employment Equality Act,1998 has 9 possible grounds of Discrimination which the Respondent listed. The listed Discrimination Grounds, Disability, Gender, Civil Status, Family Status, Sexual Orientation, Religion, Age, Race and Membership of the Travelling Community were not pleaded by the Complainant. As a first step in an equality Claim a Complainant has to establish at the very least a minimum inference of Discrimination - called a prima facie case. This did not happen here. There is simply no prima facie Equality case as required by Section 85 A the Burden of Proof Section of the Act. This complaint must fail. 3:5 CA-00051373-006 Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 The issue of Penalisation, under the 2005 Act, can only arise if a formal complaint has been made to either the Employer or an outside Agency such as the HSA. Penalisation is a “follow on” negative step by an employer. No such formal complaint was ever made and therefore Penalisation cannot arise. This complaint must fail. 3:6 CA-00051373-007 Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015 As stated in the Opening remarks this compliant can have no proper Legal standing. This complaint must fail. 3:7 CA-00051373-008 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent submitted full details of Contracts of Employment supplied to the Complainant at time of recruitment and bearing his signature. There could be no suggestion of deliberately False or Misleading Information on the published documents presented. The issue of disputed differences in pay rates is not covered in this piece of Legislation. This complaint must fail.
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4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 23 of the Industrial Relations (Amendment) Act, 2015 ; Section 79 of the Employment Equality Acts, 1998 - 2015, Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaints in accordance with the relevant redress of the cited Acts.
4:1
CA-00051373-001
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015
Claim fails - no proper Legal standing – Work not covered by SI 59 of 2018
4:2
CA-00051373-002
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015
Claim fails - no proper Legal standing – Work not covered by SI 59 of 2018
4:3
CA-00051373-005
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
As required by Section 85 A of the Employment Equality Act ,1998 no prima facie case was established.
Complaint fails.
4:4
CA-00051373-006
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
As set out above in Section 3 :4 no Penalisation, as defined by the Act, occurred.
Complaint must fail.
4:5
CA-00051373-007
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015
Claim fails - no proper Legal standing – Work not covered by SI 59 of 2018
4:6
CA-00051373-008
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
As set out at Section 3:7 above this Complaint cannot succeed.
Complaint fails.
Dated: 23/08/2023
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Sectoral Employment Orders, Employment Equality Act, Discrimination, Terms of Employment Information. |