Complainant

Respondent

Anonymised Parties

A Construction Worker

A Construction Company

Representatives

Dermot Mcnamara Dermot McNamara & Co.

Peninsula  

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054134-002

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054134-003

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054134-004

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054134-005

14/12/2022

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

CA-00054134-006

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054134-008

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054134-009

14/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00054134-010

14/12/2022

The Complainant worked for Respondent as a labourer. He was employed from the 1st of June 2021 to the 19th of August 2022.

The Respondent’s owner has suffered poor health over the last year and that has had a significant impact on this dispute.  At the request of the parties I agreed to anonymise this decision.

The Complainant’s legal team made oral and written submissions.

The Complainant worked as a construction labourer on large building sites where the Respondent was a subcontractor. There were no employment procedures or policies in place that the Complainant was made aware of, even for basic matters like annual leave. 

The Complainant gave evidence under affirmation.  

He began working for the Respondent back in June 2021. He was paid €600 per week in net salary. He worked full time between 38 and 40 hours a week.  On the 19th August 2022 he received a text from the Respondent saying he had been trying to call him but couldn’t reach him and that there was no more work.

The Complainant never worked for the Respondent again and has not been working since.

The Complainant and the owner’s son didn’t get on. He suspects this had something to do with his dismissal.

There was also an incident where the Complainant fell off scaffolding. He alleges that it was too far out from the building. Neither the Respondent’s owner nor his son offered to bring him into hospital. He got a lift home with his brother. He was in a lot of pain.

The Complainant didn’t receive a contract. He was paid into the bank but never got payslip.

He worked for 16 months and took about a week in holidays.

After he was dismissed, he tried to get a job but was unsuccessful. He had some family difficulties which he had to attend to.

Since August 2022 he has applied for 15 jobs.

The Respondent’s owner was unavailable to give evidence but did not request an adjournment.

His representative outlined that he had suffered serious health problems in the last year and that this impacted on the business. He was unable to keep the Complainant on. 

CA-00054134-002 and CA-00054134-004

These are overlapping complaints regarding leave entitlements filed both under the organisation of working time act.

The Complainant gave evidence that he had not received holiday pay from the Respondent and received no accrued annual leave on cessation of employment.

The Respondent didn’t have any records to establish that they had paid him any annual leave. When questioned about the annual builders’ holidays the Complainant revealed he had in fact had the winter/Christmas break but had to work through the summer break.

The complaint is clearly well founded in that the Complainant was owed approximately 17 days annual leave upon cessation of his employment.

In the circumstances I believe an award of 6 weeks pay is warranted. As there is an overlap between two complaints, I have only issued an awarded compensation under one.

CA-00054134-003 and CA-00054134-010

These are overlapping claims under the payment of wages act and minimum notice act. Both concern the failure of the Respondent to pay the Complainant notice. This claim was not disputed.

The Complainant is owed his notice pay. As above I will not make an award under both complaints though both are well founded. 

CA-00054134-005 and CA-00054134-008 Terms of Employment Information Act

The complainant submitted two complaints under the Terms of Employment (Information) Act

The Complainant’s evidence was that he was not provided with a statement of particulars as required by Section 3.1 nor a core statement of terms as required under Section 3.1A. This was not contradicted by the Respondent.

Both complaints are well founded and in the circumstances, I believe an award of two weeks pay is warranted for each complaint.

CA-00054134-006 Industrial Relations (Amendment) Act, 2015

It is common case that the Complainant worked in the construction sector which, at the time of his employment had the statutory minimum rates of employment set out in S.I. No. 598/2021 - Sectoral Employment Order (Construction Sector) 2021. It is accepted by both partied that he was paid €600 per week net. On the basis of that his gross salary was approximately €730. He worked between 38 and 40 hours week. 

The Complaint had referred to the current construction industry SEO the which provides a minimum wage was €19.35 per hour. This was signed into law in 2023 and he was not entitled to that rate at the time he worked. He was entitled to a minimum wage of €18.47 per hour as a category B worker as per the 2021 regulations. On review of the information available to me he appears to have been paid this.

The Complainant did not receive any access to the construction workers pension scheme as required by the above SEO. The Respondent did not dispute this.

In the circumstances I believe an award of 6 weeks’ pay is warranted

CA-00054134-009 Unfair Dismissals Act, 1977

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

At the time of his dismissal the Complainant was simply told that there was no work for him. He believes there is a different reason and that he was targeted.

The Unfair Dismissal Act does provide that redundancy can be the basis for the lawful dismissal of an employee.

However, it is important to note that Section 6(7) provides that:-

Without prejudice to the generality of subsection(1)of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so-

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal...

The evidence was that the Respondent dismissed the Complainant with no prior warning or consultation as to alternatives.

I note the Labour Court decision in Students Union Commercial Services Ltd and Alan Traynor. In this case the Labour Court placed a high bar on any Respondent employer seeking to rely on the redundancy ground to justify dismissal.

The following conclusions from that case are pertinent.

The Respondent had a number of business units and had fluctuating numbers of staff employed. The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act,the dismissal of the Complainant was unfair.

It is clear that the Respondent fell short of the standard set out by the Court in the above case.

Redress under the Unfair Dismissals Act

The Complainant is not seeking reinstatement or reengagement.

Section 7(c) of the Unfair Dismissals Act outlines that I can award compensation to the Complainant, if he incurred any financial loss attributable to the dismissal.

The legislation defines financial loss as to include any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

The Complainant had no superannuation or redundancy rights so I am confined to considering the  actual loss and any estimated prospective loss of income attributable to the dismissal.

The Complainant had been out of work for over a year at the time of the hearing. He had an estimated loss of approximately €40,000 in gross salary.

Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to— (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

This places a duty on an employee to try and mitigate their loss by seeking a new job. The Complainant’s evidence was that he applied for 15 jobs over the course of the previous 14 months.

I am not satisfied that he adopted sufficient measures to mitigate his loss. In the circumstances I believe it is appropriate to reduce this award by 50% to €20,000.   

CA-00054134-002

I find that the complaint is well founded and direct the Respondent to pay €4380 to the Complainant.

 CA-00054134-004

I find that the complaint is well founded.

CA-00054134-003

I find that the complaint is well founded but direct a nil award for the reasons set out above.

 CA-00054134-010

I find that the complaint is well founded and direct the Respondent to pay €730 to the Complainant.

CA-00054134-005

I find that the complaint is well founded and direct the Respondent to pay €1460 to the Complainant.

CA-00054134-008

I find that the complaint is well founded and direct the Respondent to pay €1460 to the Complainant.

CA-00054134-006

I find that the complaint is well founded and direct the Respondent to pay €4380 to the Complainant.

CA-00054134-009

I find that the complaint is well founded and direct the Respondent to pay €20,000 to the Complainant.