ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045627

Parties:

	Complainant	Respondent
Parties	Ovidiu Tiberius Pop	Mac-Interiors Limited

Representatives

Marius Marosan

Complaint(s):

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-00056443-001	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00056443-002	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00056443-003	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056443-004	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056443-005	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056443-006	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056443-007	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00056443-008	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 20(1) of the Industrial Relations (Amendment) Act, 2015	CA-00056443-009	03/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00056443-010	03/05/2023

Date of Adjudication Hearing: 28/06/2024

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015 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.

Background:

The Complainant worked for the Respondent firm as a labourer. The Complainant submitted a number of statutory complaints on the 5th of May 2023. The Respondent subsequently went into liquidation.

A hearing was held on the 28th of June, which I am satisfied the Respondent was on notice of but did not attend.

Summary of Complainant’s Case:

The Complainant gave evidence under affirmation with the assistance of a translator. His representative made oral and written submissions on his behalf. Where relevant I have referred to these in the findings section of this decision.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

Findings and Conclusions:

CA-00056443-001 CA-00056443-008 – Industrial Relations Act 2015.

The Complainant has submitted two complaints under the Industrial Relations Act 2015 related to his conditions of employment and the fact that they did not correspond to S.I. No. 598/2021 - Sectoral Employment Order (Construction Sector) 2021.

The Complainant attempts to refer to the fact that his contract does not align with the SEO as a separate complaint to the actual contraventions of the SEO. However, Section 23 of the Act is quite clear that I have jurisdiction to consider complaints of a contravention of—(c) a sectoral employment order (within the meaning of Chapter 3).

In fairness to the Complainant, I think this issue arises because the WRC complaint form does read as if there is a separate contravention of the act related to an employer issuing a contract with non-compliant terms (akin to the Terms of Employment (Information) Act) as opposed to an actual contravention of the SEO in how an employee is paid. However, that is not the case.

As such I am considering all complaints the complainant has raised related to the contravention of the SEO under CA-00056443-001 and treating CA-00056443-008 as a duplicate complaint.

Rate of Pay- The Complainant was a general operative having worked in the sector for more than 2 years. As such he was a Category B worker under the SEO. He was entitled to a basic rate of pay of €18.47 per hour up until February 2023 when he became entitled to €18.99 per hour.

The Complainant was in fact paid €18.36 per hour up until February 2023 at which point he and his colleagues were paid the appropriate rate going forward. The complainant was at a loss of approximately €54 within the cognisable period.

Overtime- The Respondent operated on the basis of a 50 hour working week and only offered overtime above that rate. This was outlined in the Complainant’s contract of employment and was in contravention of the SEO which required overtime to be paid about 39 hours a week. This contravention resulted in a substantial loss for the Complainant of approximately €3000 within the cognisable period.

Public Holiday- The Complainant alleges that the SEO provides for enhanced public holiday benefits. On review of the SEO this does not seem apparent.

Having found the Complainant’s case under this act to be well founded I must consider what redress I should award. Section 23 of the act provides me with discretion to award up to 104 weeks salary in where an employer has contravened an SEO. The Complainant’s basic weekly salary was approximately €1055. On review of the evidence available to me, and in particular the Complainant’s contract and work records it is clear that there was an explicit and persistent breach of the SEO which allowed the Respondent to underpay the Complainant while requiring him to work excessive hours.

In the circumstances and in consideration of the fact that I am making a separate award under the organisation of working time act for some overlapping matters I am awarding the Complainant ten weeks’ pay or €10,550.

CA-00056443-002 Section 77 of the Employment Equality Act, 1998

The Complainant submits that he was discriminated against in not receiving a company car compared to a colleague working for the Company. The reason given for this alleged discrimination on the Complainant’s complaint form was civil status. However, the reason outlined by the Complainant in the hearing and by way of his representative’s submission was that the colleague the Complainant referred to was a friend of the foreman.

This complaint is obviously entirely unrelated to the Employment Equality Act. The fact that Complainant alleged in his complaint to the WRC that he was discriminated on the basis of civil status, when he clearly did not think that was the case, has impacted negatively on how I viewed his evidence in other complaints.

CA-00056443-003 Section 77 of the Employment Equality Act, 1998

The Complainant alleges he did not receive equal pay as result of his civil status. His comparator was his father who was also paid by the Respondent but was assigned by an agency. However, the Complainant in the hearing outlined that the difference in pay was due to his father’s appointment via the agency. This was also reflected by his representative’s submission.

CA-00056443-004 – Payment of Wages Act

The Complainant sought to bring the above contraventions of the SEO as both complaints under the Industrial Relations Act 2015 and Payment of Wages Act 1991.

The Complainant’s representative consented to me dealing with those complaints under the 2015 act complaint.

CA-00056443-005 - Organisation of Working Time Act, 1997

The Complainant was required to work a regular working week of 50 hours. He worked 10 hours a day over 5 days. He often worked overtime on Saturdays bringing him further over the statutory limit. This is apparent from the working time records submitted by the Complainant.

His contract of employment contained the following line. The Working Time Regulations provide that the average working time including overtime does not exceed 48 hours in each seven day period (averaged over a 17 week period). By signing this contract with the Company you agree that this limit shall not apply to you.

Having found the Complainant’s case under this act to be well founded I must consider what redress I should award. Section 27 of the act provides me with discretion to award up to 2 years’ salary where an employer has breached the act. The Complainant’s basic weekly salary was approximately €1055.

The Respondent was clearly operating outside the bounds of the Organisation of Working Time Act knowingly and persistently. They required the Complainant to work over a maximum limit which is grounded in health and safety requirements.

In the circumstances I am awarding the Complainant twenty weeks’ pay or €21,110.

CA-00056443-006 - Organisation of Working Time Act, 1997

The Complainant alleges that his annual leave was underpaid due the Respondent failing to take into account his total working hours rather than his core hours.

The Complainant’s representative failed to provide me with a clear reference period of regular rostered overtime which related to a specific period of annual leave within the cognisable period.

As such the complaint is not well founded.

CA-00056443-007 - Organisation of Working Time Act, 1997

The Complainant argued that the SEO entitled him to an enhanced public holiday entitlement. I have made a determination on that complaint under the 2015 Act. It does not come under the scope of the Organisation of Working Time Act.

As such the complaint is not well founded.

CA-00056443-009 – Industrial Relations Act 2015

The Complainant alleges that he was penalised for having raised concerns about the rate of pay in contravention of the SEO.

The Complainant alleges that he was moved from working on a single site to multiple sites and that his wages were underpaid one week.

The Complainant failed to provide clear dates regarding his being moved to different sites and I am not satisfied that this occurred after these complaints were submitted. While his representative pointed to a week in April when he was underpaid he has failed to identify how he thinks that was related to him having raised the issue of SEO compliance.

In the circumstances, and in particular referring to my comments regarding CA-00056443-003 and CA-00056443-003, I am not satisfied that the penalisation occurred.

CA-00056443-010 – Terms of Employment Information Act

The Complainant has alleged that his hours of work were altered and that his place of work was changed, without him receiving and updated contract. In evidence, he was unable to identify a date for either of these changes.

In the circumstances I am not satisfied that a breach of the act occurred.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00056443-001

I find the complaint well founded and direct the Respondent to pay the Complainant €10,550 in compensation.

CA-00056443-002