Complainant

Respondent

Parties

Michael  Moloney

Flagpoles Maintenance Ireland Flagpoles Ireland

Representatives

  Self

Roberta Urbon Peninsula Business Services Ireland

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00059445-001

17/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059541-004

22/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059541-005

22/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00059541-006

22/10/2023

The Complainant states in his complaint form which is dated 17th of October 2023 that he held the position of Sales Manager.

He commenced his employment on or about the 14th of May 2019 working as an installer of flagpoles.

Several days hearing have been held and at one point the parties reached a settlement agreement which subsequently unraveled, and a 3rd day was scheduled.

There were originally 10 complaints listed and at the last day of hearing 6 were withdrawn.

 His employment according to his employer ended on 30 August 2023 and according to the Complainant in March 2023.

He worked a 40-hour week, and his hourly rate was €16.50 per hour.

The claim was lodged with the Workplace Relations Commission on the 17th of October 2023.

He moved from working on installations to a sales role.

He seeks to rely on the construction sectoral employment order to ground a claim for compensation claiming he never received the correct hourly rate of pay.

He also claims that he never received any information as required under law about his terms and conditions of employment.

The Complaints now before this tribunal have been narrowed to claims seeking compensation for the period March to August 2023 of benefits alleged to be properly payable under the Construction Sectoral Employment Order amounting to €14,259 and alleged breaches under the Terms of Employment (Information) Act 1994.

 The Respondent stated that the Complainant is not a worker of the class type or group of workers as provided for within the Sectoral Employment order itself.

The Respondent is engaged in entertainment business which does not fall within the sector classified as the Construction Sector as per the SEO. The Complainant was working as a flagpole installer before getting promoted to a sales manager. This has some significance but as the Respondent does not work within the Construction Sector, the provisions of the SEO cannot be enforced against the Respondent.

The Company stated that the Complainant moved from an installer’s role to a sales role and detailed that transition to the Complainant when replying to his grievance as follows:

Dear Michael, i would like to outline to you that you were paid the Statutory amount of sick leave, which is 3 days and 70% of your wage, As per the company handbook you are not entitled to be paid any more days of sick leave this year. You are not entitled to be paid for the period you have be absent for since 31st August. In relation to the claimed agreement, you alleged too place in 2021 There was a verbal conversation at that time that we would fry and offer you an incentive every quarter however after that you decided you no longer wanted to do installations and wanted to do sales of maintenance contracts which you started in 2022, with this change there was an inflated 10% commission rate, and this was planned to be granted upon receipt of payment from customer. The agreement made verbally in 2021 was not upheld due to the changes that took place soon after that. Your wage as it stands now is €16.80 per hour and with a 10% commission rate for maintenance programme sales and 5% commission for standard flagpole sales. In relation to the severance package, the €10,150 will be subject to tax in your next pay run if you don't agree to the package or it will be offered as part of your severance package gross. Please let me know if you have any other questions On behalf of Gareth FlagPofes Ireland HR Dept

A contract detailing the terms agreed in 2022 according to the Company was issued to the Complainant in March 2023 and it also details his job description:

CONTRACT OF EMPLOYMENT Employee Name: Michael Moloney Employee Address: Flagpole Sales, Installation Cover & Assistance, Full Management of Installers Employment Duration: F/T 40h p/w Commencement Date: 14/05/2019 Contract Issue Date: 21/03/2023

Employer not covered by Construction Sectoral Employment Order:

The Employer stated that they were in the entertainment business. I don’t find that description credible based on the definition of construction and the job description of this employee up until he took up a sales role. He was involved in digging, installing, servicing flagpoles that are commonplace on new and old builds and as an installation a flagpole forms part of construction activity. The definition of what constitutes a construction activity is comprehensive and this work of installing flagpoles is covered in the comprehensive description in the order itself and must be understood to apply to flagpole installation having regard to a purposive interpretation.

The Construction Sectoral Employment Order SI 234 of 2019 provides a comprehensive definition of what constitutes the sector:

Definition of the Sector

The sector to which the Order should have application is defined as the sector of the economy comprising the following economic activity:

• The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings;

• The clearing and laying out of sites for buildings, the construction of foundations of such sites, the construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings or the disposal of waste;

• The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites;

• The manufacture, alteration, fitting and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster;

• 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 works, public mains for the supply of water or the disposal of sewerage and all work in connection with buildings and their sites with such 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 such like material, any boundary walls, railings, fences and shelters erected thereon;

• The painting or decoration of poles, masts, standard pylons for telephone, telegraph, radio communication and broadcasting;

• Ground levelling, ground formation or drainage in connection with the construction or reconstruction of grass sports grounds, public parks, playing fields, tennis-courts, golf links, playgrounds, racecourses and greyhound racing tracks.

The order refers to the following categories of workers and on this ground the Complainant is not a category of worker covered as he details his role as Sales:

Categories of Worker In accordance with section 16 (5) (a) of the 2015 Act the Sectoral Employment Order should provide for:

• a basic minimum rate of pay to apply to all Skilled General Operatives who have worked in the sector for more than 2 years - (Category B Worker)

• A higher hourly rate of pay to apply to Scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators (Category A Worker)

• a top hourly rate of pay to apply to Craftsperson’s in the

following trades:

o Plasterers;

o Bricklayers/Stone Layers;

o Carpenters and Joiners;

o Floor Layers; Glaziers;

o Painters;

o Stone Cutters;

o Wood Machinists;

o Slaters and Tilers;

o And apprentices to the foregoing

• A basic hourly rate of pay to apply to General Operatives who enter employment for the first time after attaining the age of 18 years and for two years after entering employment in the industry, (New Entrant Worker)

As the Complainant is not in a category of workers covered under the Sectoral Order, he is not entitled to rely on the order to pursue a claim. The Complainant on his form described his role as a Sales Manager. I must find that the complaint is not well founded as a Sales Manager is not a category of worker covered by the order.

The Complainant also brings the following the claims under the Terms of Employment (Information) Act, 1994:

CA-00059541-004 section 7 of the Terms of Employment (Information) Act, 1994:

The Complainant states the following:

My employer has never issued me my Statement of Employment nor has he ever issued me with my 30 days statement / contract

on either occasion which he employed me 2015 - 2017 Flagpoles Ireland LTD and Flagpoles Maintenance Ireland LTD 2018 to present day.

He has however within the last couple of weeks trying to ''UPDATE'' my employment records to show that he is all legal and above board, however, the word ''UPDATE'' to means that he is updating an original document which he knows doesn't exist.

He is also trying to force other documents on me now that should have all been agreed on my way in and not on my way out.

these include a confidentially clause, deductions from pay agreement, form for existing employees, an 80 page Flagpoles Ireland employees handbook, written terms of employment dated 27 June 2023, restrictive covenant and a Statement of the Main Terms of Employment Even though dated 27 June 2023 I did not receive them until 29th September 2023.

CA-00059541-005 this complaint details several grievances about a contract of employment not accurately reflecting his true core terms and imposing unilaterally new conditions and imposing a probation period on a long serving employee. The contract fails to detail his rights under the Sectoral Employment Order.

CA-00059541-006 repeats the alleged breaches of failing to provide the information as required under law in a timely manner.

The Respondent denies the facts as detailed and stated that the Complainant received his contract of employment on the 21st of March 2023.

The complaints are lodged on the 17th of October 2023 and the 6-month period to lodge a complaint would commence on the 18th of April 2023. If the information as detailed was provided on the 21st of March 2023 and before the 18th April 2023, the Complainant is out of time to make a complaint under the Act, as more than 6 months has run from the time he received his contract information. As his employment has now ended the claims must be deemed to be out of time. I determine that CA-00059541-004, CA-00059541-005 and CA-00059541-06 are out of time and are not well founded.

Section 23 of the Industrial Relations (Amendment) Act, 2015

As the Complainant is not in a category of workers detailed in the Sectoral Order, he is not entitled to rely on the order to pursue a claim. The Complainant on his form described his role as a sales manager. I must find that the complaint is not well founded as a sales manager is not a category of worker covered by the order.

CA-00059541-004/005/006 section 7 of the Terms of Employment (Information) Act, 1994:

The complaints are lodged on the 17th of October 2023 and the 6-month period to lodge a complaint would commence on the 18th of April 2023. If the information as detailed was provided on the 21st of March 2023 the Complainant is out of time to make a complaint under the Act as more than 6 months has run from the time he received his contract information. As his employment has now ended the claims must be deemed to be out of time. I determine that CA-00059541-004, CA-00059541-005 and CA-00059541-006 are out of time and are not well founded.

Sectoral Employment Order