ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049589

Parties:

Complaints:

Date of Adjudication Hearing:  01/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 was employed as a Labourer.  He submitted complaints as follows:

that he was not paid minimum wage;

that he was paid less than the amount of wages due under the Payment of Wages Act;                                                                                                   that he was not paid terms and conditions as set out in the Sectoral Employment Order (SEO) relating to the Construction Industry;                                                                                                                                                                                                                                   that he did not receive written terms of conditions of employment;                                                         that the Employer was not keeping statutory records under E.C. Road Transport Regulations;                               that as a fixed-term employee he was treated lass favourably than a permanent employee;                            that he did not receive a statement of core terms of employment in writing from the employer.   

Summary of Complainant’s Case:

The Complainant gave written submissions and sworn oral evidence summarised in his own words as follows:

“I began employment with M, the weeks prior I had a phone call discussing the job and requirements. Between the first point of contact and this current date I have not received an outline in writing of work terms and conditions, pay breakdown or even an outline of holidays and sick pay. I have asked M several times about holidays both in person and via electronic communication (as exhibited).

Unfortunately, this is the only proof of M being evasive I have electronically with other times being conversation in person. It was within my first weeks with M that I had realised I was not being treated as the other employees were. M had instructed me to organise my own safe pass and safety boots. As I have mentioned in my personal statement, I have been in financial difficulty leading up to my employment with M and for the duration of said employment so luckily one of the other employees was able to donate me his old work boots. However, because of the safe pass being a heavy price for me at the time I had called M and asked for reimbursement of the cost (200 euros) it was unclear to me at this time that the ppe and safe pass are generally supposed to be covered by employer. Ms response to my request was “I’ll tell you what I’ll do I’ll send you on 100 (half) to contribute but do me a favour and don’t tell the other lads now that I’m doing that for you”. However, it has been evident through my employment he has in fact covered the costs of other employees safe passes.

• This brings me to the pay which I received whilst employed by M through Castlegale Electrical Ltd.

I was paid €10.00 an hour with the legal minimum being €12.70 and my understanding of the sector and being a new coming labourer was €15.00 an hour. I referenced the calls leading up to employment start date as the first conversation had been there regarding wages. M understood that I was new to the industry and so said its best that my rate was €10.00 per hour. He had however agreed to raise this in due course of starting dependant on work etc. Yet this was never the case. Several times throughout the job I had asked m and to no avail, he would always promise the following month would hold a conversation. On Monday October 23rd I messaged m to try resolve the majority of issues that we are here for and to no avail. I was finally responded to not with a message returned but a phone call. On this phone call I stood my ground about the matters and M failed to take any accountability for anything really. He had emphasised on existing company and site related issues that were in no way related to me. He had seemed emotional as though he was trying to belittle me in to understanding claiming he was losing more money than he was making and that he didn’t know if the company was worth running anymore. He rarely spoke on the topic of my pay rather the fear of losing his own money.

M requested I work in Donegal for 2 days to which I agreed with no issue as money was needed. Shortly after and to this day I have not received any compensation for the 9 hours travelling for that work only my normal rate of €10.00 an hour for work completed once in Donegal.

As December began M instructed a fellow employee to tell me that “there was no work available” and that I’d to lay idle until further notice. This led to me terminating my employment on December 12th in order to be eligible to apply for financial support from the dept of social protection in order to feed myself, bearing in mind that the personal situation from my personal statement was known by M. This led to an unfortunately sad Christmas between my partner and I, continually stressing over food and bills. M had never contacted me to tell me himself nor apologise for the inconvenience if genuine however I had onlooked as other employees continued and complained that there was work and they were stressed about the amount of them available for the work in front of them and the long unaccounted travel that M would often request. This was my grounds for unfair dismissal and penalisation, it came following legal advice as it seemed like M was trying to push me out of the company by making it not a viable option. I felt as though on the 12th of December I had to leave and seek social welfare or face being homeless for Christmas.

Summary of Respondent’s Case:

The Respondent gave sworn evidence summarised as follows:

He took on the Complainant for a Summer job on the recommendation of one of the Apprentices.  He paid him more than the first year Apprentice rate.  He employs 4 employees, 2 Apprentices and 2 Electricians.  All now have written contracts in place.  The WRC Inspectorate is dealing with the firm.  He stated that in the 27 weeks of employment with him, the Complainant was absent due to various reasons.  He was paid sick leave and holidays to the amount of in or around 5 weeks during the period.  In relation to the claim for higher pay, the Complainant was taken on as a Labourer/Electrician’s mate.  The job the Complainant was on was coming to an end in November and work was drying up.  He tried to get other work to keep the Complainant in employment, but this proved not possible.  As well as the work coming to an end, the Respondent had many problems to attend to on a site in Dublin.  He did speak to the Complainant towards the end of the job, but he accepts he could have handled it better.  He accepts he did not pay travel money when the Complainant went to Donegal.  In relation to PPE, he said that he supplies hard hats, high vis jackets and tees and hoodies.  Tools can be obtained from a supplier.  Regarding the Complainant’s complaint that he was treated less favourably, the Respondent denies any unfavourable treatment.    Regarding Safe Pass, there is an obligation on the worker to have safe pass and he thought it was fair enough to give him €100 towards the cost.   He believed he treated the Complainant fairly.  When the work dried up there was no option but to let him go.

Findings and Conclusions:

The Complainant submitted a number of complaints and I make findings under each of them as follows:

CA-00060742-001            National Minimum Wage Act 2000

Section 24 of the Act provides that a dispute in relation to an employee’s entitlements under the Act shall not be entertained

“(b) where, in respect of the same alleged under-payment, the employer is or has been –

• (i) The subject of investigation by an inspector under section 33 or 34, or
• (ii) Prosecuted for an offence under section 35”.

I note the evidence given during the hearing, that matters in relation to the Respondent Employer were being dealt with by an Inspector of the Workplace Relations Commission.   I therefore have no jurisdiction to adjudicate on this element of the Complainant’s complaint/dispute.  In any event, the issue of minimum wage under the Sectoral Employment Order for the Construction Industry is dealt with elsewhere in this decision (CA-00060742-003).  I find this complaint to be not well founded.

CA-00060742-002            Payment of Wages Act 1991

This relates to the Respondent’s failure to pay the Complainant travel money when he was engaged in work in Donegal, where his usual place of employment was Cork.  It also relates to the Complainant’s complaint that he was not refunded the whole amount of the Safe Pass course.           Travel and subsistence payments (otherwise known as ‘country money’) may be payable tax free as an allowance where the employee is working at a site that is 32km or more from the employer’s base.  The rate (per Revenue website) is set at €181.68 per week or €36.34 per day.

The Payment of Wages Act governs the payment of wages and deductions from wages and was designed to repeal the Truck Acts to facilitate wages to be paid otherwise than in cash.  

Section 1 (1) of the Act provides the definition of wages:

“wages” in relation to an employee means any sums payable to the employee by the employer in connection with his employment …

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

• (i) Any payment in respect of expenses incurred by the employee in carrying out his employment…

Section 5 and 6 of the Act govern the circumstances where deductions may be made from wages and a complaint may be made concerning same.  In this instant case, as the claim made by the Complainant is in respect of expenses, I do not have jurisdiction in the matter as expenses are excluded from the definition.  In relation to Safe pass, whereas an employer generally pays for the employee’s Safe Pass course, there is no obligation in law for an Employer to pay for such a course.  I find the complaint to be not well founded.

CA-00060742-003            Industrial Relations (Amendment) Act 2015

The complaint here is that the Complainant did not receive minimum rates of pay as set out in the Sectoral Employment Order.

The Complainant’s complaint is that he was employed on a rate of €10 per hour when the rate for General Operatives/Labourers under the Sectoral Employment Order (SEO) was €15.64.

The Complainant’s employment was from 22 May 23 to 11 December 23.  During that period 2 Statutory Instruments governing rates of pay in the industry were applicable.

S.I. 598/2021 set the rates of pay for General Operatives/Labourers as €14.93 per hour applicable from February 2022.

S.I. 207/2023 set the rates as €16.54 per hour applicable from 18 September 2023.

Section 23 of the Act provides:

“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 mare 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 concerns 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…”

In accordance with section 23 of the Act and 41 of the Workplace Relations Act 2015 I find the complaint to be well founded.  I note the Complainant is no longer in the employment.  I find the complaint to be well founded.  Having reviewed the differences in rates payable and rates paid, I require the Respondent Employer in this case to pay to the Complainant the sum of €6,013 compensation as being just and equitable having regard to all of the circumstances.

CA-00060742-004            Terms of Employment (Information) Act 1994

It is common case that the Respondent failed to provide the Complainant with written terms of his conditions of employment.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,200 compensation.

Ca-00060742-005             Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

 The Complainant was not a person  performing mobile road transport activities and this complaint is misconceived.  I find the complaint to be not well founded.

CA-00060742-006            Industrial Relations (Amendment) Act 2015       

The complaint here is that the Complainant did not receive terms and conditions laid down in the Sectoral Employment Order.   The SEO for the Construction Industry provides for minimum rates of pay, sick pay scheme and pensions.  I find that none of these matters were provided for by the Respondent in this instant case.  The matter of minimum rate of pay has been dealt with in CA-00060742-003.  As the Respondent has not made provision for the pension issue and sick pay scheme I find the complaint to be well founded.  In accordance with section 23 of the Act and 41 of the Workplace Relations Act 2015 I find the complaint to be well founded.   I require the Respondent Employer in this case to pay to the Complainant the sum of €2,000 compensation as being just and equitable having regard to all of the circumstances.  

CA-00060742-008            Protection of Employees (Fixed-term work) Act 2003.

The complaint here is that the Complainant was treated less favourably than a permanent employee.   I note the Complainant was employed from 22 May 2023 and he was being laid off in December 2023 when he had to leave the employment to search for alternative work.

The definition of fixed-term worker in the Act is;

“Fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…”

In this instant case, the Complainant was not a fixed-term worker and therefore cannot avail of the Act to pursue his complaint.  I find the complaint to be not well founded.

CA-00060742-009            Terms of Employment (Information) Act 1994

The complaint here is that the Complainant did not receive a statement of core terms of employment in writing from the Respondent.

Section 3(1A) of the Act requires that:

“Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) [the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;]

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week….

It is common case that no written contract was provided to the Complainant.  Based on the evidence, I find that Respondent breached the provisions of section 3(1A) of the Act in relation to the Complainant.

While I have found that the Responded breached both section 3(1) and section 3(1A) of the Act in relation to the Complainant, (see CA-00060742-004) I find that each separate infringement of section 3 of the Act does not entitle the Complainant to separate compensation. 

I find the complaint to be well founded and award nil compensation.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints  in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00060742-001            National Minimum Wage Act 2000

I have decided that the complaint is not well founded.

CA-00060742-002            Payment of Wages Act 1991

I have decided that the complaint is not well founded.

CA-00060742-003            Industrial Relations (Amendment) Act 2015

I have decided the complaint is well founded.   I require the Respondent Employer in this case to pay to the Complainant the sum of €6,013 compensation as being just and equitable having regard to all of the circumstances.

CA-00060724-004            Terms of Employment (Information) Act 1994   

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,200 compensation.

CA-00060724-005            Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

I have decided the complaint is not well founded.

CA-00060724-006            Industrial Relations (Amendment) Act 2015

I have decided the complaint is well founded.   I require the Respondent Employer in this case to pay to the Complainant the sum of €2,000 compensation as being just and equitable having regard to all of the circumstances. 

CA-00060724-008            CA-00060742-008Protection of Employees (Fixed-term work) Act 2003.

I have decided the complaint is not well founded.            

CA-00060724-009            Terms of Employment (Information) Act 1994

I have decided the complaint is well founded and award nil compensation.

Dated:   26-06-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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