Case Number: ADJ-00016465. Workplace Relations Commission

• Docket Number: ADJ-00016465
• Date: 20 February 2019
• Court: Workplace Relations Commission
• Parties: A Façade Fitter v A Construction Sub-contractor

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, these complaints were assigned to me by the Director General. I conducted a hearing on October 22nd 2018 and gave the parties an opportunity to be heard by me and to present any evidence relevant to the complaints. The complainant attended alone and without representation. There was no appearance by or on behalf of the respondent. I understand that the company where the complainant worked is no longer in business; however, I am satisfied that the respondent was informed in writing of the date and time of the hearing.

On October 19th, the respondent’s solicitor sent a letter to the WRC in which he referred to the complaints and the hearing on October 22nd. In his letter, the solicitor said that on August 3rd 2018, the complainant in this case, and all the respondent’s employees went to work for another company. He said that “what occurred here was an unlawful inducement to the employees of (the respondent) to join another firm.” On this basis, he argued that a transfer of an undertaking had taken place. I do not accept this argument as, a transfer of an undertaking is a contractual arrangement between two businesses or entities, governed by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. It is not the same as “an unlawful inducement” to employees to work for another company.

I proceeded with the hearing and I have reached this decision based on the evidence of the complainant alone.

Background:

The respondent company installed windows and façades on buildings under construction. The complainant submitted a P60 in evidence, which indicates that his employment commenced on August 20th 2017. A payslip submitted in evidence indicates that he started before August 18th, as he was paid for 16 hours on that day. The complainant said that his employment was terminated when the company closed down on August 3rd although his P60 indicates that his last day was August 10th 2018. On his complaint form, the complainant stated that his weekly pay was €641.00 gross. He said that from August to December 2017, he worked 46 hours per week, but in 2018, he generally worked about 39 hours per week. He said that in 2018, he sometimes he did one or two hours of overtime. These complaints relate to the non-payment of the correct hourly rate of pay and overtime and the non-application of the conditions of employment set out in the 2017 Sectoral Employment Order for the Construction Sector (SEO). The complainant also said that he was not paid for untaken holidays.

CA-00021347-001 Complaint under Section 41 of the Workplace Relations Act 2015 Summary of Complainant’s Case:

Hourly Rate of Pay From the date he commenced employment with the respondent in July 2017, the complainant said that he was paid €16.50 per hour. His payslip of August 18th 2017 shows that he was paid €264 for 16 hours, equivalent to €16.50 per hour. From September 2017, the payslips presented by the complainant show different gross weekly payments and there is no indication of the hourly rate of pay. The gross weekly pay is indicated in the correct column, but gross weekly pay is also indicated in the column for “hours of work.” As a result, in addition to no information about his hourly rate, the complainant has no record of the hours that he worked each week. The SEO for the Construction Industry became effective on October 19th 2017. As a façade fitter, the complainant’s job is classified in the SEO as a category 2 worker, which includes skilled operatives such as steel fixers. With effect from October 19th 2017, in accordance with the SEO, the rate of pay for this category of worker is €18.36 per hour. The complainant said that, from mid-February 2018, he was paid €18.36 per hour. He claims that he was entitled to be paid this rate from October 19th and that he is owed the shortfall of €1.86 per hour for the hours he worked from October 19th 2017 until February 17th 2018. Overtime As I have set out in the “Background” section above, the complainant said that from July to December 2017, he worked 46 hours per week. From January 2018, he said that sometimes he did one or two hours of overtime. He complaint is that he was paid the basic hourly rate for overtime and he was not paid the premiums for “unsocial hours” in the SEO. Terms and Conditions of Employment Provided for in the Sectoral Employment Order At the hearing, the complainant said that he did not get a copy of his terms and conditions of employment. He said that in January 2018, his employer registered him as a member of the Construction Workers Pension Scheme, as provided for in the SEO, and 17 weeks of contributions were made to his pension. From October 19th 2017 until the termination of his employment on August 3rd 2018, the complainant worked for the respondent for 42 weeks. As he said that contributions were submitted to the pension scheme for 17 weeks, there is a shortfall in contributions of 25 weeks. The complainant said that he is not aware if contributions have been submitted by his employer on his behalf with regard to the construction workers’ sick pay and death-in-service benefits.

Summary of Respondent’s Case:

The respondent did not attend the hearing.

Findings and Conclusions:

Hourly Rate of Pay Section 19 (1) of the Industrial Relations (Amendment)...