ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051324
Parties:
| Complainant | Respondent |
Parties | John Rigney | Lentech Services Limited |
Representatives | Hamilton Turner Solicitors | Mary O’ Connell |
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-00062848-001 | 16/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062848-002 | 16/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062848-003 | 16/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00062848-004 | 16/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00062848-005 | 16/04/2024 |
Date of Adjudication Hearing: 5/11/2024 and 14/01/2025
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This matter commenced 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. The second hearing date was in person.
I heard a considerable amount of evidence during the hearing and was provided with substantial booklets of documents and submissions. The parties were very capably represented on both sides and the witnesses were all courteous to me and the process.
I allowed the right to test the oral evidence presented by cross examination.
Evidence was given on oath/ affirmation.
Much of this evidence was in conflict between the parties. I have taken time to review all the evidence both written and oral. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. I am required to set out ``such evidential material which is fundamentally relevant to the decision´´ per MacMenamin J. in Nano Nagle School v Daly [2019] 3 I.R. 369.
A WRC adjudication officer, as a decision maker who is under a duty to give reasons for his or her decision, should, as part of this process, engage with the ``key elements´´ of the case made by both sides and explain why one side was preferred: per Clarke J. in Doyle v Banville [2018] 1 I.R. 505, 510.
The parties´ respective positions are summarised hereunder followed by my findings and decision. I received and reviewed documentation prior to and during the hearing. All evidence and supporting documentation presented has been taken into consideration.
Background:
The Complainant was employed by the Respondent from the 16 January 2023 to 2 February 2024. The complaints were lodged with the WRC on 16 April 2024.
On the first hearing date, the Complainant was unable to log onto the remote hearing and it was adjourned to reschedule on a face-to-face basis.
In addition, the Complainant had not provided his written submissions 15 working days prior to the first hearing date.
The Complainant described his position held on the workplace relations complaint form as general operative.
He set out that he was paid weekly a gross fee of €850. |
Summary of Complainant’s Case:
CA-00062848-001, CA-00062848-004 and CA-00062848-005. These four complaints related to the failure by the Complainant to receive the minimum rate of pay set out in the Construction Sectoral Employment Order, an unlawful deduction of €150 for a training course, the failure by the Respondent to pay the correct overtime rates and the failure of the Respondent to make a pension contribution arising from the application of the Sectoral Employment Order to his employment. The Complainant’s case is that he was employed as a general operative. He described his experience prior to engagement with the Respondent as relevant construction work in the area of erecting turbines, refurbishing buildings and concrete work. He described his work with the Respondent as being in a number of different industry areas: Quarry maintenance which involved taking out beams and working on buildings Building construction which involved erecting steel lift shafts, installing spiral staircases, installing floors Cement works: installing floors and stairs He said that 70% of his time was spent on quarry sites and 30% on construction sites. His evidence was that he did ask for a pay rise at the end of December 2023. He explained that he didn't have a pension with the Construction Workers Pension Scheme and submitted that he was entitled to be registered on scheme and contributions made on his behalf due to the type of work he was doing and his qualification under the Sectorial Employment order. Under cross examination he accepted that he was employed as a lorry driver and a truck driver for the last employer he had prior to working with the Respondent. He explained that his work in the cement works involved changing rollers, changing catwalks and belts and changing hoppers. He was involved in erecting safety guards on belts which were quarry conveyors. He was also involved in maintenance of the quarry equipment and taking out hammers. The construction work involved refurbishing a warehouse involving removal of original of steel beams. CA-00062848-002 The Complainant submitted that he never received a written statement of his terms and conditions of employment. Under cross examination he disputed that his contract of employment was handed to him and he disputed that it was found in a company van following his resignation from the Respondent. CA-00062848-003 This related to an unlawful deduction from wages. The Complainant said that the director of the company asked him to do a teleporter training course. He said he paid the training company directly. A colleague was doing the course on the same day. He explained he only received part of the training fees from the Respondent and there was €150 outstanding. |
Summary of Respondent’s Case:
CA-00062848-001, CA-00062848-004 and CA-00062848-005. The Respondent’s case is that it was not a Building firm or Civil Engineering firm for the purposes of the Sectoral Employment Order (Construction Sector) 2017 as amended (“the SEO”). It submitted that if it was subject to any SEO it would be that of Mechanical Engineering not Civil Engineering. The Respondent explained that its principal activity was the repair and maintenance of quarry equipment which comprised of conveyors and crushers and the fabrication of similar machinery. 70% of its business was in that area of work and 30% of its business (during quiet times in the cement sites) involved fabrication of steel stairs off-site and the assistance in the installation of these steel stairs and repair of steel ducts. Under cross examination the director clarified that the company was involved in the installation of steel beams that were manufactured off-site. These were welded in as required and the area cleaned up. The director clarified that the Respondent did not have general responsibility for building work and that they were subcontractors to another subcontractor on the overall project. It was further explained that the Respondent was not involved in any building works and that they role it had was mainly as fabricators. As regards the concrete works they are involved in, this was dealing with big industrial -sized equipment, replacing parts and maintaining it. The Respondent submitted that this was not Civil Engineering work. It argued that the Complainant did not carry out work of a civil engineering nature. The Respondent explained that it had five qualified staff and two unqualified staff. The Complainant was one on the unqualified staff. CA-00062848-002 In relation to the terms and conditions of employment, the company director Valerie Leonard gave evidence that she drew up the contract and gave two copies to her son to give it to the Complainant. She did ask for it to be signed in early February 2023 and followed up again in March 2023 with her son looking for the signed contract. She advised that she didn't receive it signed by the Complainant and as she was working part-time at the time, it’s return to her was overlooked. She explained that when the Respondent went to sell a company van, the unsigned contract was located in the company van. Michael Leonard a company director gave evidence that the contract was found above the glove compartment in November 2023. It was decided to leave the contract on its HR file. CA-00062848-003 In relation to the case of the unlawful deduction of wages relating to course fees, the director Michael Leonard gave evidence that he became aware that there was an available space on a teleporter driving course and while he had no requirement for the Complainant to undertake that course, he did offer him the opportunity to do it "on his own bat". This meant that they Complainant had to pay for the course himself, which he agreed to do. The course was paid for by the Respondent by cheque. The Complainant verbally advised the director to take the cost of the course out of his wages over two weeks. It was agreed to take a payment of €175 through payroll. The director admitted that he forgot to follow up with the deduction on a second week. |
Findings and Conclusions:
CA-00062848-001, CA-00062848-004 and CA-00062848-005. The case concerns a dispute between a Complainant and Respondent in relation to benefits arising from the application of the SEO for the construction sector to the Complainant’s employment. I must first determine if the Complainant is a class of worker to which the SEO applies. The categories of worker are listed in the SEO. The categories are very broadly defined. General operative grade B is “to consist of skilled general operatives with more than one year’s experience working in the sector”. Taking into account the broad definition of general operative and the evidence of what the Complainant carried out as part of his duties and the work subcontracted by the Respondent, I find that he falls within the definition of a general operative Grade B within the meaning of the SEO. The second issue for me is to determine is whether he was employed by a building firm or civil engineering firm within the meaning of those terms defined in the SEO. The SEO sets out that a Building Firm be defined as an undertaking whose principal business is one or a combination of any of the following activities: (a) The construction, reconstruction, alteration, repair, painting, decoration, fitting of glass in buildings, and the demolition of buildings; (b) The installation, alteration, fitting, repair, painting, decoration, maintenance and demolition in any building, or its site, of articles, fittings, pipes, containers, tubes, wires or instruments (including central heating apparatus, machinery and fuel containers connected thereto) for the heating, lighting, power or water supply of such buildings; (c) (i) The clearing and laying out of sites for buildings. (ii) The construction of foundations on such sites. (iii) The construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings and the disposal of waste. (iv) The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings. (v) The making of roads and paths within the boundaries of such sites. (d) The manufacture, alteration, fitting, and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster. A Civil Engineering Firm was defined as an undertaking whose principal business is one, or a combination of any of the following activities: — (a) the construction, reconstruction, alteration, repair, painting, decoration and demolition of: — roads, paths, kerbs bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage and all work in connection with building their sites and mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion; cattle markets, fair grounds, sports grounds, playgrounds, tennis courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or like material, any boundary walls, railings, fences and shelters erected thereon. From an analysis of the evidence presented to me, I accept that the principal business of the Respondent is the maintenance of industrial sized quarrying machines and the installation of steel fabrication to the machinery or catwalks. The Respondent’s principal business in terms of time does not relate to any of the activities listed in the definition of a Building or Civil Engineering firm as set out in the SEO. Consequently, I find that it is not a Building or Civil Engineering firm itself. Therefore, the complaints of - failure to pay the hourly rate for a Category B worker as defined in the SEO orders - failure to pay overtime as defined in the SEO orders - failure to pay pension contribution as required by the SEO order fail. CA-00062848-002 In this case I find that while the Complainant was given his written terms of employment within one month of the commencement of his employment, the document provided to him (3 pages) did not comply in total with the requirements of Act and in particular Section 3(1) (ga) and 3(1)(k)(ii) which are minor breaches of the legislation. The information required by Subsection 3(1A) must be given not later than five days after the commencement of employment and does not appear to have been done. CA-00062848-003 I prefer the evidence of the Respondent that it paid for the course and the Complainant offered a place on the course on the basis that he paid for the course himself as it was not a requirement of his employment to have this qualification. The deduction of €150.00 was authorised in writing by the Complainant’s text of the 29 June 2023. |
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.
CA-00062848-001, CA-00062848-004 and CA-00062848-005. These complaints are not well founded. CA-00062848-002. This complaint is well founded. I award the Complainant €1,500.00 as compensation which I find to be just and equitable in the circumstances complained of. CA-00062848-003. This complaint is not well founded. |
Dated: 5th March 2025
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Sectoral Employment Order (Construction Sector) application |