Complainant

Respondent

Parties

Darius  Ratinas

Kilcawley Building and Civil Engineering (Sligo) Limited

Representatives

Self-Represented  

Ms. Cheryl Traynor, Construction Industry Federation

Act

Complaint Reference No.

Date of Receipt

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

CA-00043099-001

16/03/2021

The Complainant was engaged by the Respondent as a “small projects supervisor”. The Complainant was a full-time, permanent member of staff. At the outset of the hearing the parties agreed that the Complainant received an average weekly payment of €635.00. The employment terminated on 25th September 2020.

On 16th March 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had not paid overtime in accordance with the construction industry SEO. In answering this allegation, the Respondent submitted that the SEO did not apply to the Complainant and consequently the overtime rate was not applicable.

A hearing in relation to this matter was convened and finalised for 7th February 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing the Respondent raised a preliminary issue as to jurisdiction, particularly in relation the non-occurrence of any actionable breach within the cognisable period. This matter will be considered prior to the substantive complaint.  

At the outset of the hearing the Respondent submitted that none of the breaches alleged by the Complainant fell within the cognisable period for the purposes of the present complaint. They submitted that the relevant period of the purposes of the complaint relates to the six months prior to the referral of the complaint. In circumstances whereby the complaint was referred on 16th March 2021, the cognisable period for these purposes is 16th September 2020 to 16th March 2021. It is common case that the Complainant’s last day of employment was 25th September 2020. Having regard to the same, the Respondent submitted that nine days of employment fell within the relevent period for the purposes of the complaint. In circumstances whereby the Complainant did not work in excess of 39 hours on either of these weeks, it was submitted none of breaches alleged by the Complainant (and denied by the Respondent) fell within the cognisant period and as a consequence, the complaint must fail.

In relation to the Complainant’s application to extend the relevant period, the Respondent submitted that he had not demonstrated “reasonable cause” necessary to extend the same. In particular, they submitted that internal negotiation between the parties does not satisfy the test set out in the legislation.

By response to the points raised by the Respondent, the Complainant sought to extend the relevant period for the purposes of the present complaint. In particular, the Complainant submitted that he sought to resolve this matter locally with the Respondent prior to referring the present 

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 6(8) provides that,

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

In the present case, the Complainant made an oral application for an extension of time based on the fact that this complaint was in discussion at local level. When these discussions did not resolve the issue, the Complainant referred the present complaint as a last resort.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

From the authorities cited above, it is clear that the Complainant must firstly explain the reason for the delay. In this regard, I find that the rationale advanced by the Complainant does not adequately explain the delay. If the matter was subject of local discussions, clearly the complaint was aware of the issue and had no barrier to submitting his own personal complaint in good time.

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act.

Notwithstanding the same, I note that this finding does not serve to extinguish the complaint. Part of the Complainant’s case relates to the alleged non-payment of the hourly rate provided for in the SEO. As the some of the subject matter of this complaint falls within the cognisant period of the purposes of the Complainant, this matter will be considered as part of the substantive decision.  

The Complainant commenced employment with the Respondent as a “Small Projects Supervisor” on 3rd June 2008. He submitted that this involved the supervision of a team of four to five other construction workers in the completion of certain tasks. Notwithstanding the same, the Complainant submitted that his role was very much “hands on”. In evidence he submitted that he would be required complete works himself as part of the team as well as instruct the other members and review the finished works.

The Complainant stated that his supervisory position was nominal only, and that he was in effect a full-time construction worker. On foot of the same, the Complainant submitted that he is entitled to the various rates of pay of protections set out in the relevant SEO.

In answering the complaint, the Respondent denied that the Complainant’s employment was subject to the rates of pay set out in the relevant SEO.

They submitted that the operative SEO provides binding terms for certain categories of worker in the sector, in particular,

“Persons employed in the Construction Sector as craft persons, construction operatives and apprentices”

They submitted that the above definition does not include supervisors, and consequently the Complainant (as a “Small Projects Supervisor) is subject to the terms of the SEO.

Statutory Instrument Number 234 of 2019 Sectoral Employment Order (Construction Sector) 2019 (hereafter referred to as “The SEO”) is an order made in accordance with the provisions of Section 17 of the present Act. This order established minimum arrangements for certain terms and conditions of employment in the Construction Sector in accordance with the Act. The SEO defines the applicable sectors and categories of worker to which the various rates of pay apply.

In the present case, the Complainant alleged that his employment is subject to the provisions of the SEO, and that the Respondent has breached the Act in failing to honour the same. By response, the Respondent has submitted that the Complainant’s employment falls within a category of workers not covered by the SEO, and consequently his application must fail.

In the matter of CLS Recruitment Limited -v- A Worker LCR22588, the Labour Court approached this issue by posing the following two questions; firstly, are the economic activities in the Complainant’s workplace encompassed by the Construction Industry SEO? If so, is the Complainant a worker as encompassed by the Construction Industry SEO? If the answer to both these questions is affirmative, the Complainant will be subject to the relevant terms enumerated therein.

Regarding the first question, it is apparent that the Respondent is a large construction company engaged in numerous construction projects in the North-West and nationwide. The Complainant was engaged as a “Small Projects Supervisor” overseeing and engaging in construction works on behalf of the Respondent. As such, it is clear, and uncontroversial, that the economic activities of the Complainant’s workplace are covered by the SEO.

The present dispute centres around the second question. In this regard, the SEO defines the applicable categories of worker as,

“Persons employed in the Construction Sector as craft persons, construction operatives and apprentices”

The respondent’s position is that as the above definition does not includes “supervisors”, the SEO is not applicable to the Complainant. In this regard, I note the evidence of the Complainant is that he spent almost all his time on-site, engaged in construction works on behalf of the Respondent. He stated that due to this long service, he was tasked with reviewing the works of others on-site to ensure they met a certain standard. Notwithstanding the same, the Complainant stated that he would be engaged in these works himself for significant periods of the day and that any supervisoury function occupied the minority of his working time. Having regard to the foregoing, it is apparent that the Complainant employment falls within the definition of “construction operatives” set out above. While I accept that the relevant section does not refer to supervisors, it does not stand to reason that the all the protections enumerated therein are no longer applicable once a worker takes on any form of supervisory function.

Having regard to the foregoing, I find that the Complainant’s employment is subject to the terms of the SEO and consequently, his application is well-founded.

In circumstances whereby the Respondent’s activities and the Complainant’s employment fall under the definitions set out in the SEO, and it is accepted that he did not receive the above entitlements, I find that this complaint is well-founded.

Regarding redress, Section 23 of the Act empowers me to award compensation on foot of a breach of the Act, so long as the same does not exceed 104 week’s remuneration. In circumstances whereby the Complainant did not receive the correct rate of pay for one week within the cognisant period, I award him the sum of €2,000 in compensation in respect of the breach of the Act. 

SEO, Supervisor