Complainant

Respondent

Parties

Iurie  Borta

PJ McLoughlin Ltd

Representatives

 Marius Marosan

 Ruth McNally Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00035352-001

19/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040132-001

28/09/2020

Sectoral Employment Order:

On the 19th of March 2020 the Complainant lodges his complaint with the WRC.

The Complainant is a non-national and requires translator assistance.

This claim related to a sectoral employment order for the construction industry-Sectoral Employment Order (Construction Sector) 2019.

He stated that he should have received €18.86 per hour and that he was receiving €17.04 per hour.

The order provided for the following:

The Complainant submitted several pay slips and as an example one dated 27th of February 2020 indicates a basic salary of €664.56 for 39 hours=€17.04 per hour.

The Respondent has stated that the Complainant is not a Category A worker.

However, on the evidence the worker is not on the correct rate for a General Operative Category B worker.

The SI provides for referral to the WRC:

Individual Dispute

a) The grievance or dispute shall in the first instance be raised with the

employer at local level with a requirement to respond within 5 working

days. Notice in writing of the dispute shall be given by the individual

concerned or his trade union to the relevant organisation representing

employers or to the employer directly.

b) If the dispute is not resolved it shall be referred to the Adjudication

Service of the WRC

c) Either party can appeal the outcome of the Adjudication Hearing to

the Labour Court.

And section 23 of the Industrial Relations (Amendment) Act 2015 provides for redress as follows:

Decision of adjudication officer under section 41 of Act of 2015

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20,

(b) a registered employment agreement (within the meaning of Chapter 2), or

(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

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

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

Redundancy:

On the 28th of September 2020 the Complainant lodged a new complaint stating that he had been made redundant and had not received his statutory redundancy payment.

On the 25th of August 2020 the Complainant had been placed on temporary lay-off effective from the 28th of August 2020. The employer has never terminated the contract.

The Complainant alleges that as he was asked to drive a dumper on site, he is entitled to category A pay rate as per the sectoral employment order for the construction sector 2019. He also stated that he was entitled to payment of country money. Also, he was placed on temporary layoff and his employer refuses to pay him redundancy.

The Complainant was employed as a general operative, most of his duties was as a general operative and he does not meet the requirement as set down in the order to be paid at Category A. There is no evidence that he mainly was involved in the operation of heavy machines. He assisted craftspeople on site.

There is no automatic entitlement to country money, it wasn’t agreed with him and therefore he has no entitlement to it.

The Complainant is out of time relating to his claim for statutory redundancy as he was placed on lay-off more than a year ago.

Sectoral Rate: CA-00035352-001

Based on the sworn evidence of the Complainant, his witness, a work colleague, and the Respondent most of the work carried out by the Complainant was general operative work. He did on occasion drive a site dumper. However, that does not mean he is a category A worker. He was not engaged in Heavy Machine operator work as a core part of his duties. It is for this reason that his complaint for Category A rate is not well founded.

The definition of a Category A worker is:

A higher hourly rate of pay to apply to Scaffolders who hold and Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators (Category A Worker)

During the hearing it was evident that the Complainant was on the wrong hourly rate for a category B worker. He was being paid €17.04 per hour and the order prescribes €17.50 per hour.

The Respondent committed to detail the hours of work and rate that the Respondent worked for the last 6 months prior to lay-off.

The Order came into force on the 1st of October 2019.

Based on his payslip he was on average being paid 39 hours basic, 1 hour overtime at 1.5 time and travel time at 5 hours. 46.5 hours x .46=€21.39 x 26 weeks =€556.14 shortfall.

His employer calculated the loss to be €410.36 based on an analysis as follows 25 weeks prior to layoff based on actual hours worked=€15236.14 when it should have been €15646.50 if the correct rate had been applied.

Country Money

The Complainant was also claiming for country money; however, there is no evidence before me that provides for this term in the employee’s contract and term and conditions of employment.

Redundancy: CA-00040132-001

The Complainant was placed on temporary lay-off. The employer has never terminated the contract. Layoff commenced on 28th of August 2020. The Respondent stated that the Complainant is statute barred as he had not claimed for redundancy within the year after being placed on lay-off. The employer is on notice of the request for redundancy and has stated in evidence that they have no work for the Complainant. However, the Respondent does not believe that the Complainant is entitled to redundancy based on delay. The Employer accepts that they have never terminated his employment.

At the hearing the Respondent stated that unfortunately no suitable opportunity arose to call back the Complainant.

The Act provides for a 1-year time limit where:

Time-limit on claims for redundancy payment

24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

To apply the time limit, the contract must be terminated and in this case that is not so.

The Complainant commenced his employment on the 14th of January 2016.

On or about the 28th of September 2020 the employee notified his employer of his intention to seek a redundancy payment. Arising from Covid emergency provisions the right to claim redundancy was suspended as provided for under Part 8 of the Emergency Measures in the Public Interest (Covid-19) Act 2020.

Those provisions were lifted on 30th of September 2021.

Section 12 of the Redundancy Payment Act 1967 as amended states:

Right to redundancy payment by reason of lay-off or short-time.

12. — (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless —

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive

At the hearing the Respondent continued to state that no opportunity to re-engage in full-time work had in fact occurred.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 14th of January 2016.

2.       Contractual termination date allowing for notice 7th of October 2020.

3.       Date of lay-off 28th of August 2020.

4.       Gross weekly wage based on earnings €775.32

Reckonable service under the Redundancy Act 1967 as amended is detailed at Schedule 3:

8. During, and only during, the 3-year period ending with the date of termination of employment, none of the following absences shall be allowable as reckonable service —

 (a) absence in excess of 52 consecutive weeks by reason of an occupational accident or disease within the meaning of the Social Welfare (Consolidation) Act 1993,

(b) absence in excess of 26 consecutive weeks by reason of any illness not referred to in subparagraph (a),

(c) absence by reason of lay-off by the employer.

During lay-off the absence does not count towards reckonable service as detailed on the Gov.ie site and information on Covid Payments and Redundancy:

Any period spent on Jobseeker's Payments or COVID-19 Pandemic Unemployment Payment is considered a temporary lay-off. Any period where an employee was laid off is not included as a period of reckonable service when calculating the statutory redundancy payment.

Reckonable service runs from the date of commencement of employment on 14th of January 2016 to the time of lay-off on the 28th of August 2020.

The Act at Schedule 3 provides for pro-rata determination of service:

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

Statutory Redundancy is calculated as follows:

Number of years’ service: start date 14th January 2016 to date of layoff on 28th of August 2020.

Weeks due under the scheme:    (2 weeks per year plus 1 bonus week)

Wage ceiling under Scheme:        €600 per week

Statutory redundancy entitlement: weeks x gross weekly wage = weeks x gross weekly wage

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed

Based on service of 241 reckonable weeks/52=4.63 years x 2= 9.27 weeks x 600=5561.53 + bonus week 600= €6161.53.

Sectoral Rate: CA-00035352-001

The complaint relating to Category A hourly rate of pay is not well founded.

Based on the sworn evidence of the Complainant, his witness, a work colleague, and the Respondent most of the work carried out by the Complainant was general operative work. He did on occasion drive a site dumper. However, that does not mean he is category A worker. He was not engaged in Heavy Machine operator work as a core part of his duties. It for this reason that his complaint for Category A rate is not well founded.

The definition of a Category A worker is:

A higher hourly rate of pay to apply to Scaffolders who hold and Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators (Category A Worker)

During the hearing it was evident that the Complainant was on the wrong hourly  rate for a category B worker. He was being paid €17.04 per hour and the order prescribes €17.50 per hour.

The Respondent committed to detail the hours of work and rate that the Respondent worked for the last 6 months prior to lay-off.

The Order came into force on the 1st of October 2019.

Based on his payslip he was on average being paid 39 hours basic, 1 hour overtime at 1.5 time and travel time at 5 hours. 46.5 hours x .46=€21.39 x 26 weeks =€556.14 shortfall. His employer calculated the loss to be €410.36 based on an analysis as follows 25 weeks prior to layoff based on actual hours worked=€15236.14 when it should have been €15646.50 if the correct rate had been applied.

In the alternative the complaint for the correct hourly rate for category B worker is well founded as the Employer has accepted that is the case. The loss claimed does differ between the parties however, there was a loss.

The Act provides for redress as follows:

Decision of adjudication officer under section 41 of Act of 2015

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20,

(b) a registered employment agreement (within the meaning of Chapter 2), or

(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

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

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

I award the Complainant €1000 in compensation for the failure to pay the correct hourly rate for category B worker and this complaint is well founded.

The complaint for Country Money is not well founded.

Redundancy: CA-00040132-001

I uphold the Complainant’s appeal for redundancy.

At the hearing the Respondent continued to state that no opportunity to re-engage in full-time work had in fact occurred.The employee was never dismissed from his employment.

The employee has met the conditions pursuant to section 12 and has notified the employer of his intention to claim redundancy.

I am satisfied that the complainant is entitled to a redundancy pursuant to the Redundancy Payments Act 1967 as amended based on the following facts:

1.       Start date 14th of January 2016.

2.       Contractual termination date allowing for notice 7th of October 2020.

3.       Date of lay-off 28th of August 2020.

4.       Gross weekly wage based on earnings €775.32

To apply the statutory time limit, the contract must be terminated by the employer and in this case that did not happen. This is an appeal of the employer’s decision not to allow the employee to be made redundant when they have no work to give him. The date of lay-off does not equate to dismissal.

I determine that the complainant is entitled to statutory redundancy based on the facts as detailed.

I order the Respondent to pay the Complainant €6161.53 as his statutory redundancy entitlement. I uphold the employee’s appeal and this complaint is well founded.

Sector Order-Redundancy-Lay-off