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FULL RECOMMENDATION
PARTIES : FIRST UP SLU T/A MASTER STONEMASONS DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00029658 CA-00039424-001 A Labour Court hearing took place on 4 May 2022.
The Worker contends that he was required to work as a Stone mason, although not qualified to do so. He submits that his employer unilaterally set targets and advised him that if he did not reach those targets his pay would be deducted. He was subject to a ‘Performance Review’ in August 2020 for failing to meet those targets and threatened with “disciplinary action”. His employer dismissed his safety concerns, lack of qualifications, and lack of ability to work in this role, and insisted if he wanted to remain in employment he would have to work as a Stone Mason. These actions are a clear breach of the Construction Sectoral Employment Order pay and the Worker’s contract of employment. The Employer refutes that the Worker was ever asked to change roles or undertake the role of a Stone mason. He is employed as a general operative and required to be flexible in that role. Stone fixing is one aspect of his role. The Worker was employed on a site in August 2020 where he failed to achieve his minimum targets. These targets were realistic and reasonable in line with the claimant’s skill level. On the same site, the Worker had the opportunity to participate in an incentive scheme that allowed for “above target earnings.” The scheme was voluntary, and the Worker had no interest in participating in that scheme. Employee performance meetings occur regularly, as all employee’s output is monitored across the organisation. The Worker was never subject to any disciplinary action. The Court has given careful consideration to the oral and written submissions of the parties. It is accepted by the parties that the Worker is a General Operative, Category B Worker, for the purposes of the Construction Industry Sectoral Employment Order. It is also accepted that as a general operative the Worker is required to be flexible in that role. It is clear to the Court that the Worker encountered difficulties with certain aspects of the work that he was required to undertake, which in his view fell outside the remit of a general operative role, and which in the view of the Employer formed part of the flexible nature of that role. In light of this, the Court considers that the Adjudication Officer’s recommendation that when the Worker is asked to undertake stone mason work, that “the site manager and the worker have a meeting to discuss the work and what is expected of him and give him the meaningful supports they can” is reasonable in all of the circumstances. The Court also recommends that any targets set should be realistic and increased as the performance increases. The Court so recommends.
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