Complainant

Respondent

Parties

Oleg  Birlea

Stone Builders Contracts Limited

Representatives

Mr. Billy Wall, OPTASI

 Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00039991-002

22/09/2020

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

CA-00039991-003

22/09/2020

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

CA-00039991-004

22/09/2020

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

CA-00039991-005

22/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039991-006

22/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039991-007

22/09/2020

The Complainant commenced employment with the Respondent on 27th November 2019. The Respondent is a construction company and while the nature of the Complainant’s employment was is dispute, it was agreed that he was involved in the construction aspect of the Respondent’s business. The Complainant’s employment was terminated on 1st September 2020.

On 22nd September 2020, the Complainant lodged the present set of complainants with the Commission. While the complaints fall under several different statutes, almost all complaints stem from the core dispute as to whether the Complainant should be considered a “craftsperson” within the meaning of Statutory Instrument 234 of 2019, or the Sectoral Employment Order (Construction Industry) 2019 (hereafter referred to as “The SEO”). It is the position of the Complainant that his role falls under the definitions set out in the SEO, while the Respondent submitted that the Complainant did not meet the criteria contained therein.

A hearing in relation to this matter was convened and finalised for 8th October 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.  

The Complainant stated that he worked for numerous years in the construction trade. Most of this experience was gained abroad, with the Complainant stating that he had particular experience with “interiors”, this being a mixture of plumbing, plastering and tiling.

The Complainant stated that he commenced employment with the Respondent shortly after arriving in the country. He stated that he did not receive any contractual documentation at the commencement, or any other stage of his employment. He stated that the Respondent is a construction firm, primarily involved in the building of extensions to existing buildings. The Complainant stated that his duties were wide ranging, initially he would be involved in the demolition of an existing part of a building, thereafter he would assist in the construction of the new building. This would entail the Complainant being involved in the blockwork, plastering and tiling of the new building. The Complainant accepted that he worked alongside contractors employed for a specific purpose. Nevertheless, the Complainant stated he would do whatever was required for the Respondent. Throughout his employment, the Complainant received a rate of pay of €9.80 per hour.

By submission, the Complainant’s representative stated that the Complainant’s role clearly fell within the definitions set out in the Construction Industry SEO. In particular, the Complainant’s representative stated that he was involved in the “construction, reconstruction, alteration, repair, painting, decorating, fitting of glass and demolition of buildings”. It was submitted that the Complainant received a rate of pay of €9.80 per hour, a rate not contained within the SEO. As a consequence of the same, the Complainant did not receive the correct rate of pay, the correct holiday entitlement and the correct (or any) terms of employment.

By response, the Respondent stated that the Complainant was initially engaged to work as a driver for the Respondent. When the Complainant was about to commence this employment, it became apparent that he did not possess a valid Irish driving licence and consequently could not fulfil this role. At this juncture, the Complainant stated that he had extensive experience in block laying and tiling and requested to work in the construction element of the Respondent company. The managing director of the Respondent agreed to this proposal and the Complainant commenced employment on 27th November 2019.

Shortly following the commencement of employment, it became apparent that the he did not possess the necessary skills to be engaged as a block layer or a tiler. The standard of the Complainant’s work was so poor, and his rate of work so slow, that he was instead given the duties of a general labourer for the majority of his employment. The Managing Director of the Respondent stated that the Complainant was not a plasterer, a bricklayer or a tiler. The managing director further submitted that the Respondent used contractors for these particular roles in all their contract. It was submitted that the reality of the Complainant’s employment was that he was a labourer.

In relation to the specific claims advanced by the Complainant, the Respondent accepted that he did not receive a contract of employment, holiday pay or public holiday pay. It was further accepted that the Complainant fell within the definition of the SEO and consequently that the rate of pay of €9.80 was incorrect. Nonetheless, it was disputed that the Complainant was a “Craft Worker” within the definition of the SEO. In support of this contention, it was submitted the Complainant did not have any relevant qualifications in relation to the relevant trades.

In the present case the Respondent has accepted a breach of a number of the claims advanced by the Complainant. The primary matter of dispute relates to the whether the Complainant can be classified as a “craft worker” within the meaning of Statutory Instrument 234 of 2019, or Sectoral Employment Order 2019.

The parties are agreed that the Respondent’s activates fall within the descriptions set out in the “Definitions of Sector” section of the SEO. Rather, the present dispute centres on the “Categories of Worker” section. It is the Complainant submission that he should be considered a “Craftsperson” within the meaning of this section, while the Respondent submits that he should be considered a “New Entrant”. Under the terms of the SEO, a Craft Worker should receive a minimum hourly rate of €19.44 per hour, while a New Entrant would receive a rate of €14.44.

The SEO defines a New Entrant as a “person who (is) over the age of 18 and entering the sector for the first time”. In the present case, the Complainant’s direct evidence was that he had many years of experience prior to being engaged by the Respondent. Indeed, in the Respondent’s own evidence, they stated that the Complainant informed them that he had numerous years of prior experience, and it was on that basis that they engaged his services. The Respondent’s case thereafter is that the Complainant’s standard of work fell short of their expectations. Taking this submission at its height, it does not contradict or disprove the Complainant’s direct evidence that he was an experienced construction worker. Having regard to the foregoing, I do not accept the Respondent’s submission that the Complainant should be considered a New Entrant for the purposes of the SEO.

Following on the same, it is apparent that the Complainant could be fall within one of two further categories, a “Craftsperson” or a “Category B” worker. The SEO states that,

“a top hourly rate of pay to apply to Craftspersons in the following trades: Bricklayers/Stone Layers; Carpenters and Joiners; Floor Layers; Glaziers; Painters; Plasterers; Stone Cutters; Wood Machinists; Slaters and Tilers”

The SEO further defines a “Category B” worker as “all Skilled General Operatives who have worked in the sector for more than 2 years”.

In his evidence, the Complainant stated that his experience related to a number of different trades, including plastering, brickwork and tiling. Notwithstanding the same, the Complainant accepted that he had not completed any apprenticeships in relation to any specific trade, and that he held no qualification in respect of the same. Having regard to the foregoing, I find that the Complainant falls under the “Category B” definition of the Act and consequently should receive an hourly payment of €17.50 per hour.

CA-00039991-002 Complainant under the Payment of Wages Act

In circumstances whereby the Complainant was not paid the correct rate of pay, he submitted that he suffered an unlawful deduction from his wages from the commencement of his employment.

The complaint in this regard was received on 22nd September 2020, and in light of the submission above, seeks to recover unpaid wages from the commencement of employment, or 27th November 2019. Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.”

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

In the present case, the Complainant has “framed” the complaint so as to cover a period of almost 10 months. In such circumstances, I find that the complaint is present out of time and consequently the complaint is not well-founded.  

CA-00039991-003 Complainant under the Terms of Employment (Information) Act 1994

In circumstances whereby the Complainant did not receive a written statement of his terms at any stage of his employment, I find that his complaint is well-founded.

Regarding redress, Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. In circumstances whereby the Complainant correct rate of pay is €17.50 per hour, I find that correct weekly rate of pay is €682.50. Having regard to the same, I award the Complainant the sum of €2,730.00 in compensation.

CA-00039991-004 Complainant under the Industrial Relations (Amendment) Act 2015

Under this particular complaint, the Complainant alleged that he did not receive the terms and conditions set out in the Sectoral Employment Order.  In particular, the Complainant stated that he did not receive pension entitlements, sick pay and death in service payment.

In circumstances whereby the Respondent’s activities and the Complainant’s employment fall under the definitions set out in the SEO, and it is accepted that he did not receive the above entitlements, I find that this complaint is well-founded.

Regarding redress, Section 23 of the Act empowers me to award compensation on foot of a breach of the Act, so long as the same does not exceed 104 week’s remuneration. In the circumstances, and having regard to the fact that the non-payment of wages falls under a separate complaint, I award the Complainant the sum of €682.50 in compensation for the breach of the Act.

CA-00039991-005 Complainant under the Industrial Relations (Amendment) Act 2015

The Complainant alleged that he did not receive the correct rate of pay throughout his employment. In circumstances whereby the Complainant received an hourly rate of €9.80 and was entitled to an hourly rate of €17.50 under the terms of the SEO, I find that this complaint is well-founded.

Section 23 of the Complainant empowers me to “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”. Having regard to the same, I find that the Respondent should review the Complainant’s working hours and ensure that he received the correct payment of €17.50 for each hour worked. This correction should commence from 22nd March 2020.

In addition to the foregoing, I award the Complainant the sum of €2,730.00 in compensation for the breach of the Act.  

CA-00039991-006 Complainant under the Organisation of Working Time Act

The Complainant alleged that as he did not receive his correct hourly rate of pay his annual leave entitlements were not satisfied. Having regard to the totality of the evidence presented, I find that this is the case and consequently the complaint is well-founded.

In the matter of Waterford County Council v O’DonoghueDWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Having regard to the date of referral of the Complainant the cognisant period for the purposes of the Complainant is 22nd March – 22nd September 2020. In such circumstances the Complainant’s complaint encapsulates the completion of the previous leave year and the payment of outstanding annual leave on termination.

In the present case the Complainant was on a period of lay-off from the commencement of the new annual leave year (being 1st April 2020) until 14th August 2020. Thereafter the Complainant worked for 50.38 hours. Utilising the method of calculation in the Act, the Complainant accrued 4.03 hours of annual leave, to a value of €70.53. It is accepted that the Complainant had accrued 13.65 days of annual leave the previous year, for which the Complainant was not compensated. The value of the same, in line with the correct rate of pay is €1,991.87. In total, I find that the Complainant is owed the sum of €2,062.40 in unpaid annual leave.

Regarding redress, Section 27 of the Organisation of Working Time Act 1997 (as amended) provides that a decision of an Adjudication Officer shall do one or more of the following:

“Require the Employer to comply with the relevant provision” and/or,

Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.”

I award the Complainant the sum of €2,062.40 regarding unpaid annual leave. I further award the Complainant the sum of €1,365.00 in compensation for the breach of the Act.

CA-00039991-007 Complainant under the Organisation of Working Time Act

The Complainant alleged that as he did not receive the correct hourly rate of pay, he did not receive the correct public holiday entitlement.

During the cognisant period for the purposes of the complaint, the Complainant accrued entitlement regarding three public holidays. Applying the correct rate of pay to the same, the monetary value of the same is €329.23. Having reviewed the payslips, I note that the Complainant was not remunerated for the same.

Having regard to the totality of the evidence presented, I award the Complainant the sum of €329.23 as regards unpaid public holiday entitlement. I further award the Complainant the sum of €682.50 in compensation for the breach of the Act.

SEO, Terms of Employment, Craftsperson