ADJUDICATION OFFICER DECISION
Aluminium frame providers
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the referral by an employee of a complaint and/or trade dispute under Section 13 of the Industrial Relations Act of 1969 (or otherwise), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing and/or made available in advance of the hearing
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of other Acts contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaints and disputes. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant was engaged in a skilled capacity with the Respondent aluminium construction company. The Employment only lasted thirteen weeks when the employment was terminated on the 22nd of November 2018. In consequence of the said termination the Complainant issued a workplace relations complaint form on the 24th of November 2018. The Complainant raised a number of complaints under relevant legislation.
Summary of Complainant’s Case:
The Complainant has brought a number of complaints before the Adjudication process. The Complainant gave evidence on his own behalf. The Complainant has claimed he was Unfairly Dismissed and has asked that this matter be considered under the Industrial Relations Acts in circumstances where he does not have 52 weeks employment.
In addition, the Complainant has brought a number of pay complaints including a complaint that he was not receiving the minimum rate of pay set out in an Employment Regulation Order.
The relevant ERO here is that of SI no 455/2017 Sectoral Employment Order (Construction Sector) 2017 which recommends basic hourly rates for “workers” (eligible to be paid either €17.04 or €18.36 per hour) and “craft workers” (eligible to be paid €18.93).
The Complainant described himself as a “Fitter” though did not attempt to place himself into any of the headings provided for in the SI.
In evidence the Complainant believes he is entitled to be paid at the rate of €18.36 per hour.
The Complainant did not receive his terms and conditions of employment as is his entitlement within two months of the commencement of his Contract of Service (as specified in Section 3 of the 1994 Act). In particular, the Complainant states that he did not receive the details of SI no 455/2017 Sectoral Employment Order (Construction Sector) 2017 which sets out the minimum rates of pay and other terms and conditions to be expected in this sector. The Complainant is seeking compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
A number of other complaints were withdrawn at the time of hearing.
Summary of Respondent’s Case:
The Respondent JB owns and operates the entity which employed the Complainant and he sought to justify the fact of Dismissal in circumstances where the Complainant had (he says) recklessly sought to destroy the reputation and credibility of the Respondent in the eyes of a Main Contractor Construction Company L Co. This is the company which provides the Respondent and up to 43 employees with a livelihood. They rely on L Co for work.
The Respondent denies that the Complainant is a fitter and stated that the fact of owning “tools” does not necessarily move you into that class of Employee. The Respondent believes he has paid an appropriate minimum hourly basic rate. The Complainant was being paid at a rate of €17.84 per hour.
The Respondent does not deny that the terms and conditions of employment have not been provided but points to the fact that the employment relationship had only lasted thirteen weeks.
Findings and Conclusions:
I have carefully considered the evidence adduced by both parties at the hearing of this matter. In the aftermath of the hearing date the Complainant provided me with some further paperwork which was received by me after the hearing date and which was forwarded to the Respondent on or about the 11th of February. No objection has come back from the Respondent and in any event, I would state that the provision of this additional documentation did not materially change my decision.
The Complainant commenced his employment with the Respondent in August of 2018. The Complainant is a skilled fitter and was primarily responsible for the sealing of aluminium installations fitted by the Respondent company on any one of a number of sites on which the Respondent was working at any given time. It seems to be common case that for the duration of this employment the Complainant was working on a particular site in Dublin whereon a large number of high-end apartments were being built. This site was operated by LCo.. The Complainant worked closely with a Mr. JR who was a site Manager for the primary Contractor (L Co) on site which had engaged the Respondent to provide and install aluminium product on site.
The Respondent runs the business himself and has up to 43 employees scattered across a few sites. He himself was working a lot in Belfast as relations between the parties herein came to a head.
It is common case between the parties that the onus is on employees to sign in on a daily basis. The Respondent gave evidence that employees would sometimes forget to do this and he might remind them if he had seen the sign in sheet and was aware that a name was missing. He could not do this of course, if he was in Belfast.
At the end of any week (Friday) the Respondent’s supervisor on the ground would send to the Respondent, the sign-in sheet for the week just gone by. Based on this, the Respondent would immediately pay wages which would be in the Employees Bank Account on the Saturday. It was only after this had been done, that the Respondent would then submit an application or invoice to the Main Contractor LCo for the value of the hours he had already paid to his employees and this would be submitted along with the said time sheets which had been provided by the Supervisor aforesaid.
The Complainant says he worked on Monday the 12th of November in the usual way at the LCo site. The Complainant says he signed the time sheet on the Monday though the Employer says he did not. There is disagreement as to where the Complainant worked on Tuesday the 13th – the Complainant says he was moved to another Respondent owned site where a hotel was being built. The Respondent disagrees. In any event, when directly asked by me, the Respondent did not reject the assertion that the Complainant had worked these two days at one or other of his sites. As the Respondent was in Belfastr he did not have direct knowledge of exactly where he had been placed.
On or about the 16th of November the Respondent received the sign in sheet for the week and he paid wages based on the information contained therein. He says that the Complainant was not signed in for the Monday or Tuesday and therefore was not paid for those days in the ordinary way. By the Saturday the Complainant had communicated with the Respondent that a mistake had been made and that he had worked the Monday and Tuesday. The Respondent said he would include the lost 18 hours in his invoice to the Main Contractor but would not do anything about the sign-in sheet which spoke for itself. The Respondent sent out this invoice on Monday the 19th and expected to hear back from them by Friday the 23rd.
In the meantime, the Respondent says that the Complainant set about continuously hassling the Respondent for the missing wages for two days. He was constantly calling him and berating him. The Respondent took the view that the onus is on the employee to sign-in and therefore any delay was entirely the Complainant’s own fault.
On balance I accept that the complainant did go to JR the Site Manager with L Co with whom he had always had a good relationship. The Complainant was looking for some support and/or verification that the Complainant had worked on the apartment site on the previous Monday. I cannot be sure how that conversation went nor what opinion JR formed about the Respondent. What is certain is that he Respondent was outraged that this direct contact had been made. The Respondent was annoyed that his reputation had been damaged by the employee who had himself created a situation.
The Respondent was of the view that the Complainant needed to wait and see if and when his money would become payable (albeit a week late).
The Respondent rang the Complainant on Thursday the 22nd and terminated his employment without notice. The Respondent felt very strongly that approaching JR had irreversibly damaged his relationship with the Complainant who he could no longer trust.
I am absolutely satisfied that the Employer acted without considering the implications of his decision. The Respondent was irrationally annoyed by the Complainant’s legitimate concern that he had not been paid and he had failed to give any assurance that the Complainant would be paid in due course. Even if the Complainant had missed the sign-in sheet on the days in question (which he denies), there could be no justification for withholding the payment in due course once his presence in the workplace had been verified. That money was due and owing and bound to be paid.
I am of the view that the summary dismissal was unfair and unreasonable. The dismissal was triggered without any conversation or disciplinary or other process. The Dismissal was a knee-jerk reaction and lacked proportionality.
In terms of assessing losses the Complainant has confirmed that he has been fortunate enough to obtain alternative employment and losses are therefore at a minimum.
I am satisfied that the complainant is entitled to have been paid at the rate of €18.36 per hour pursuant to the applicable ERO. The Complainant was therefore being underpaid in the amount of €0.52 per hour for each 45 hour week. This amounted to €23.40 per week underpayment to the Complainant. The Complainant worked 13 weeks.
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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015 - CA-00023504-001- that the Complainant was not receiving minimum rates of pay as set out in SI no 455/2017 Sectoral Employment Order (Construction Sector) 2017 on the Pay. The Complainant was not paid the appropriate minimum amount under the relevant sectoral Order and his claim is therefore well founded, and I require that the sum of €304.00 compensation be paid.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - CA-00023504-002 – Hours of Work under the Organisation of Working Time Act 1997. The Complainant has withdrawn this claim, as he was paid whatever Annual leave entitlements were due after the issuing of the Workplace Relations Complaint Form.
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015 - CA-00023504-003 – that the Complainant did not receive the Terms and conditions of Employment as specified in SI no 455/2017 Sectoral Employment Order (Construction Sector) 2017 . The Complaint herein is well founded, and I require the Respondent pay €300.00 compensation.
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts - CA-00023504-004- Unfair Dismissal. I am satisfied that the Complainant was Unfairly Dismissed and I recommend that the Complainant be paid €1,000.00 compensation.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00023504-006. I am satisfied that the Respondent unlawfully deducted two days wages from the Complainant’s wages and require the Respondent pay €260.00. I additionally require the Respondent re-fund the overpayment of tax already received by the Respondent but not passed on to the Complainant in the amount of €271.00 and I find that this amounted to an unlawful deduction. Total to be paid under the Payment of Wages Act is therefore €531.00.
Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015 - CA-00023504-007 - Pay
. This is a repetition of -001 above and is to be withdrawn.
Dated: 24th June 2019
Workplace Relations Commission Adjudication Officer: