ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027944
Parties:
| Complainant | Respondent |
Parties | Anthony Shanahan | Thermopro Ltd |
Representatives | Michael Mulligan E.I.S. on record, but no appearance by or on behalf of the complainant at hearing | Sarah Daly BL, instructed by Sweeney Mc Gann Solicitors |
Complaint:
Act | Complaints Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015 | CA-00035805-001 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035805-002 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035805-003 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035805-004 | 22/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035805-005 | 22/04/2020 |
Date of Adjudication Hearing: 13/02/2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with section 23 of the Industrial Relations (Amendment)Act, 2015 , Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and section 7 of the Terms of Employment( Information )Act, 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:
On 22 April 2020, the Complainant, a Plumber, submitted 5 complaints before the WRC. He introduced himself a Lay Litigant at that time. CA-00035805-001 Sectoral Employment Order CA-00035805-002 Payment of Wages Act, 1991 CA-00035805-003 Terms of Employment (Information) Act 1994 CA-00035805-004 Terms of Employment (Information) Act 1994 CA-00035805-005 Terms of Employment (Information) Act 1994
On 3 September 2020, EIS, representative body confirmed that they had been appointed to represent the complainant. Details of the complaints were shared with the Respondent.
The case was set down for hearing in February 2021 and was postponed in favour of a private mediation. On June 11, 2021, the Complainants representative confirmed that the matter remained unresolved and sought access to a scheduled adjudication hearing.
The case was relisted for November 19, 2021, and 14 December 2022. The case was postponed and came back for hearing on 13 February 2023. This date of hearing was notified to both parties on 19 December 2022. The notification did not generate requested written outline submissions initially. The Respondent representative clarified at the outset of the hearing that a submission on behalf of the Respondent had been submitted to the WRC and this was secured and added to the file. The Respondent approached the hearing in possession of a spare copy of this document for parties present. There was no appearance on or behalf of the Complainant or his named representative at hearing. The WRC Administrative Section rang both parties, when the non-appearance of either party unfolded on February 13, but did not secure an answer or call back. The WRC forwarded a copy of the Respondent submission to the Complainant post hearing for completeness. Even the addition of this document to file did not prompt any contact from the Complainant or his stated representative. I am satisfied that I have allowed a minimum of 5 days to elapse post the hearing date in this case. The Complainant has not stepped forward to attend the hearing or open his case before the Adjudication held on February 13, 2023. I proceed now to write an exparte decision.
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Summary of Complainant’s Case:
As I have not had the benefit of the Complainant attendance at hearing, I have a copy of his complaint form dated 22 April 2020 and I will now summarise the complaints before the WRC in his name. CA-00035805-001 Sectoral Employment Order The Complainant wrote that he had commenced full time employment with the Respondent business on October 1, 2018, until his employment ended on 25 October 2019. His stated earnings were recorded as €1440.00 per fortnight for a 40-hour week. He also wrote that he had not been included in the CWPS pension scheme for the first 17 weeks of employment. His complaint was centred on a claim that he regularly worked a 42.5 hr week, but was never paid overtime or unsociable hour rates, which were in contravention of SI 59/2018. This claim was not particularised or supported with contemporaneous documentation. CA-00035805-002 Payment of Wages Act, 1991 The Complainant outlined that he had not been paid sums of €1825.44, €576.00, and €153.00 on 25 October 2019. He placed the context of the claim as a discovery by him in relation to his preparation for a WRC Adjudicator hearing in a claim for unfair dismissal. €1825.44 referred to a shortfall in a final payment based on €18 ph.€576.00 referred to holiday pay in a closure setting. €153.00 referred to a claim for notice. CA-00035805-003 Terms of Employment (Information) Act 1994 The Complainant wrote that he had not received a statement in writing on his terms of employment until February 2019.
CA-00035805-004 Terms of Employment (Information) Act 1994 The Complainant wrote that he had not been notified in writing of a change of his terms of employment. He had not received notification of the changed pay rate of €18.00 per hour. CA-00035805-005 Terms of Employment (Information) Act 1994 The Complainant wrote that he had not received written notification of changes regarding his change from weekly to fortnightly pay. |
Summary of Respondent’s Case:
Counsel for the Respondent outlined that the Respondent operates a Plumbing business and employed the complainant in the case as a plumber from October 1, 2018, until his employment ended on 25 October 2019. The business was host to 11 employees at that time. Counsel accompanied at hearing by her Solicitor and Business owners, submitted a context and background to the instant case. She outlined that the Complainant had succeeded previously at the WRC in a claim for Unfair Dismissal, where he had recovered redress to the amount of €15,000. This had been executed by the Respondent on 8 September 2020. The claims now live at WRC emerged from the periphery of the hearing in the above claim on April 22, 2020 and submitted to WRC shortly afterwards. The Respondent denied all the allegations raised in this case. In the absence of the Complainant and out of respect for the preparatory work for hearing undertaken by the Respondent, Counsel for the Respondent was invited to advance the preliminary argument prepared in written submissions. Preliminary Argument: Counsel confirmed that some informal talks and mediation had prefaced the hearing, but these were not concluded by way of agreement between the parties. Counsel submitted that the claims in this case have been presented outside the applicable time limit. The Respondent sought application of the Labour Court authorities of Cementation v Skanska v Carroll, Ervia v Healy, PWD 2020 and PJ Personnel Ltd v Maguire AWD 201 in of terms how the reasonable cause clause provided in Section 41(8) of the Workplace Relations Act, 2015, is considered in the higher courts. Counsel for the Respondent submitted that there was a period of 3 days alone, that of 22, 23 and 24 October 2019, which fell within the cognisable period for the claims before the WRC. CA-00035805-001 Sectoral Employment Order. Counsel argued that this claim is hindered by the lack of a submission of grievance under the SEO Individual Dispute Mechanism, prior to referral to WRC. The Respondent has no record of receipt of such a grievance. CA-00035805-002 Payment of Wages Act, 1991
The Respondent disputed the claim that €1825.44 was owed by the Respondent and sought particulars for the claim for this amount and the amount referred to as €576. Counsel confirmed that notice had been paid. CA-00035805-003 Terms of Employment (Information) Act 1994 The Respondent has submitted that the Complainant received a written contract of employment and signed by both parties on 5 October 2018. The contract was exhibited in the papers. CA-00035805-004 Terms of Employment (Information) Act 1994 The Respondent denies this claim and argues that it was out of time. All changes were notified to the complainant. The Respondent exhibited a note to file and an email dated 14 January 2019, which, while somewhat redacted, referred to a written letter of “some changes for the year ahead” The Complainant was named as a recipient. CA-00035805-005 Terms of Employment (Information) Act 1994 The Respondent denies this claim and argues that it was out of time. All changes were notified to the complainant. The Respondent exhibited a note to file and an email dated 14 January 2019, which, while somewhat redacted, referred to a written letter of “some changes for the year ahead “The Complainant was named as a recipient. Counsel confirmed that during the Complainants tenure the Respondent had outstanding obligations arising from previous contracts, which bound the business to lower pay rates. The Respondent has since amended its practices and has applied the provisions of the SEO.
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Findings and Conclusions:
I have been requested to make 5 decisions in this case. In arriving at this decision, I have taken account of the initial complaint form lodged with the WRC. I have also had regard to the Respondent outline submission and their engagement on the Preliminary Issue. I have also had to have regard for the nonappearance at hearing of the complainant and his representative.
I am satisfied that the Complainant was properly on notice in the case. The notification of hearing was shared with both parties simultaneously (reference electronic file) and I have recorded the complainant as a “nonappearance “ I did delay the commencement of the hearing to allow for any delays in accessing the new WRC Office in Cork. I am grateful to the WRC staff who followed up on the Complainant and his representative. For my part, I would have preferred some communication from the complainant in relation to this case. I am aware of the efforts everyone makes to provide a hearing in this case, and I find it unreasonable that the complainant did not make an appearance on the day or forward any explanation or excuse for his nonappearance. I have not heard any argument to extend the time limit from that provided for in Section 41(6) of the Workplace Relations Act, 2015, in this case. In the absence of a counter argument to the Respondents preliminary arguments, I will now detail my findings.
CA-00035805-001 Sectoral Employment Order The Sectoral Employment Order applies to categories of workers who are directly employed in the Mechanical Engineering or Building Services Contracting Sector. SI 59/2018 the SEO had effect in the Building Services Sector from 6 March 2018. This made it compulsory that relevant contracting firms paid the rates provided in the SEO as well as providing a pension and sick pay scheme. My jurisdiction rests in Section 23 of the Industrial Relations Amendment Act, 2015 Decision of adjudication officer under section 41 of Act of 2015 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 more 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 concerned 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 calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977, In the instant case, I have not had the benefit of complainant presence at hearing, an outline submission or most preferable oral evidence in the case. I have taken on board the preliminary argument made on time limits and the expectation that a grievance was required to predate the WRC referral. I must therefore conclude that in the total absence of the complainant to open his case at hearing, that the claim as recorded on the 22 April 2020 compliant form is not well founded.
CA-00035805-002 Payment of Wages Act, 1991 This claim has not been particularised by the complainant. I must therefore conclude that in the total absence of the complainant to open his case at hearing, that the claim as recorded on the 22 April 2020 compliant form is not well founded. CA-00035805-003 Terms of Employment (Information) Act 1994 This claim has not been particularised by the complainant. I accept the exhibit referred to by the Respondent as that signed by both parties on October 5, 2019. It is manifestly out of time. I find the complaint is not well founded. CA-00035805-004 Terms of Employment (Information) Act 1994 This claim has not been particularised by the complainant. I must therefore conclude that in the total absence of the complainant to open his case at hearing, that the claim as recorded on the 22 April 2020 compliant form is not well founded.
CA-00035805-005 Terms of Employment (Information) Act 1994 This claim has not been particularised by the complainant. I must therefore conclude that in the total absence of the complainant to open his case at hearing, that the claim as recorded on the 22 April 2020 compliant form is not well founded.
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Decision:
CA-00035805-001 Sectoral Employment Order 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. Section 23 of the Industrial Relations Amendment Act, 2015 requires that I make a decision in relation to the dispute. This complaint is not well founded. CA-00035805-002 Payment of Wages Act, 1991 Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with the provisions of Section 5 of that Act. This complaint is not well founded. CA-00035805-003 Terms of Employment (Information) Act 1994 Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Sections 3-5 of that Act. This claim is manifestly out of time. It is not well founded.
CA-00035805-004 Terms of Employment (Information) Act 1994 Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Sections 3-5 of that Act. This complaint is not well founded.
CA-00035805-005 Terms of Employment (Information) Act 1994 Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Sections 3-5 of that Act. This complaint is not well founded. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Nonappearance by or on behalf of the Complainant at hearing. |