LCR22943

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042793 (CA-00052418-002)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 11th December 2023 in accordance with Section 23 of the Industrial Relations (Amendment) Act, 2015. A Labour Court hearing took place on 29th February 2024. The following is the Decision of the Court:

DECISION:

This is an appeal by Szymon Tomiak against a decision of an Adjudication Officer in a complaint against his former employer Martompol, taken under Section 23 of the Industrial Relations (Amendment) Act, 2015.

The Adjudication Officer held that the complaint was not submitted within the proper time limits for lodging a complaint under the Act and that no reasonable cause was demonstrated to warrant an extension of time.

In line with the normal practice of the Court, the parties are referred to in this Decision as they were at first instance. Hence, Mr Tomiak is referred to as” the Complainant” and Martompol is referred to as “the Respondent”.

The hearing

A hearing of the Labour Court was held in Limerick on 29 February 2024. The Complainant was assisted with an interpreter.

A submission was lodged by the Complainant ten working days before the hearing date in accordance with the Labour Court Rules. The Complainant emailed further documentation in support of his submission to the Court in the days before the hearing. The Respondent’s attendance at the hearing was confirmed to the Court on the afternoon before the hearing and a submission lodged to the Court on his behalf by his representatives.

At the outset of the hearing, it became apparent that neither party had exchanged submissions. The Court sought the views of the parties if it was safe to proceed in those circumstances. Both parties indicated their preference to proceed with a hearing of the appeal on that day. The Court adjourned the hearing for a period to allow all parties review the submissions. When the hearing re-convened both parties confirmed to the Court that they had read the submissions and were satisfied to proceed with the hearing of the appeal that day. On that basis, the Court proceeded to open the appeal.

This case is linked to TE/23/81 the parties agreed that there was an overlap between the cases in terms of witness evidence and submissions relied upon. The Court heard witness testimony from the Complainant and his employer, Mr Marcin Tomyz.

Preliminary Matters – time limits

The Complainant lodged his complaint under the Act to the Workplace Relations Commission (WRC) on 25 August 2022, which was over six months after his employment with the Respondent ended on 22 February 2022.

The Respondent submits that the complaint was out of time as the Complainant’s employment ceased on 22 February 2022 and, as he was no longer employed as a worker by the Respondent during the cognisable period for the complaint, the complaint must be considered out of time.

At the hearing Mr Brian Sugrue BL, for the Respondent, conceded that in circumstances where the Complainant was on notice of the alleged contravention when his final payment was processed and he received his final payslip dated 10 March 2022, the date of the alleged contravention of the Act occurred fell within the cognisable period for the complaint.

The Complainant submits that the complaint was lodged in time and that the relevant timeframe for considering his complaint should be counted from the 10 March 2022, which is the date recorded on his last payslip from his employer. As a result, he contends that the contravention of the Act took place on 10 March 2022 when he received his last payment from the Respondent and that as a result his complaint was submitted within the six-month timeframe allowed under the Act.

Finding

Having regard to the above the Court finds that the date of the alleged contravention was 10 March 2022 when the Complainant’s final payment was processed, and he became aware of the alleged contravention of the Act. As a result, the Court finds that the complaint taken under Section 23 of the Industrial Relations (Amendment) Act, 2015, was lodged within the six-month timeframe specified in the Act.

Application for an extension of time

The Complainant made an application for an extension of the timeframe allowed for considering his complaint. As the Court has already determined that his complaint under the Industrial Relations (Amendment) Act, 2015 was lodged within the six-month timeframe specified in the Act, it is not necessary to consider the application for an extension of the timeframe allowed for considering a complaint.

Substantive matter

Summary of the Complainant’s submission 

The Complainant submits that he was cheated by the Respondent during his many years of employment, as he was unaware that he was entitled to be paid in accordance with the terms of the Construction Industry SEO. He was paid an hourly rate of €10.50 per hour throughout his employment, instead of the rate of pay for an experienced construction worker, as set out in the Construction Industry SEO

The Complainant submits that he is a Category A Worker as defined in the SEO.

The total amount of underpayment for the period of his employment between 2016 – 2022 amounts to €41,950 in unpaid pay, holidays, bank holidays and overtime.

Summary of the Respondent’s submission 

The Respondent refutes that the Complainant was entitled to a rate of pay in accordance with the relevant SEO in force at the time.

The Complainant worked as a maintenance operative cleaning windows, gutters, and general power washing. He was paid €10.50 per hour. The Complainant was not employed in any construction capacity and is not entitled to a higher rate of pay as provided by the SEO.

The Complainant’s role does not meet the criteria for inclusion under the terms of the SEO. The work that he performed does not fall within the definition of a ‘craft person’, or a ‘category A worker’ or a ‘category B worker’ as provided for under the SEO.  He was not a skilled general operative.

The final payslip issued to the complainant shows that in addition to pay for eight standard hours, he was pay in lieu of 29.96 hours of accumulated holiday entitlement.

Testimony of the Complainant

The Complainant gave evidence under oath which can be summarised as follows:

Before coming to Ireland, the Complainant worked in Poland in general construction work, installing windows, plumbing and electrical work. The Complainant worked for the Respondent for six years. He was recruited as a qualified employee but ended up working as a “helper”. He worked as part of a small group fixing roofs, installing windows and heated floors. 

The Complainant worked eight hours per day Monday to Friday and eight or nine hours on Saturday. His rate of pay was €10.50 per hour. He was not paid overtime. He was paid monthly. There were four other employees in the company. They did not discuss grades or category or work but knew the rate of pay was too low.

His final payslip dated 10 March 2022 records eight-hours pay, as he was absent on sick leave around that time because of Covid.  He became aware of the SEO pay rates after he left the employment. He considered himself to be a Category A Worker as defined in the SEO.

Under cross examination, the Complainant accepted that he did not have qualifications and was not certified as a Scaffolder, Banks Operative, Steel Fixer, Crane driver or Heavy Machine Operator.

Testimony of Marcin Tomyz

Mr Marcin Tomyz gave evidence under oath which can be summarised as follows:

The company undertakes small renovation and extension jobs in private houses. It does not undertake any specialised work. The Complainant was employed in 2016. He was not qualified to do plumbing or electrics and was not employed as a ‘skilled’ worker. The Complainant worked alongside three other employees. He worked under supervision mostly painting and installing windows.

Mr Tomyz was not familiar with the SEO before the Complainant lodged his complaint to the WRC. The company does not employ Category A workers, Category B workers or Craft Workers. He declined to say what pay rates other employees received.

Relevant Law

S.I. No. 234 of 2019 – [Sectoral Employment Order (Construction Sector) 2019] (the SEO of 2019) as amendedis an order made in accordance with the provisions of section 17 of the Act.

That order established minimum arrangements for certain terms and conditions of employment of workers in the Construction Sector. The Class, type or group of workers to whom the Order applies is expressed as –

“Persons employed in the Construction Sector as craft persons, construction operatives and apprentices.

For the purpose of a Sectoral Employment Order a worker to whom such order has application is defined as any person aged 15 years or more who has entered into or works under a contract with an employer, (including through an employment agency within the meaning of the Employment Agency Act, 1971 and / or the Protection of Employees (Temporary Agency Work) Act, 2012 ), whether the contract be for manual labour or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour. For the purpose of this definition apprentice and apprenticeship has the same meaning as it has in the Industrial Training Act 1967”.

The sector to which the Order has 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 SEO of 2019 sets out Categories of Worker as follows:

“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)

In accordance with section 16(5) (b) of the Act two higher hourly rates of basic pay as follows:

(1) 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)

and

(2) 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; (Craftspersons)

A basic hourly rate of pay to apply in accordance with section 16 (5)I(ii) 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) and in accordance with section 16(5)(d) of the Act a minimum hourly rate of pay to apply to apprentices (Apprentice)”.

The SEO of 2019 was amended by S.I No. 598 of 2021 [Sectoral Employment Order (Construction Sector), 2021 (the SEO of 2021) which provided for minimum rates of pay in relevant part as follows:

Pay Rates

“The following basic hourly rates of pay will apply in the sector from  1st February 2022 to 31st January 2023.

Craftsperson €20.52 per hour

Category A Worker €19.91 per hour

Category B Worker €18.47 per hour

An hourly rate of pay of €14.93 will apply for two years after entrance to the Sector to all New Entrant Operative Workers who are over the age of 18 years and entering the sector for the first time.”

Discussion and Findings

The Court’s jurisdiction in the within appeal is limited to assessing breaches of the Act that occurred within the relevant period before a complaint was lodged to the WRC.

The relevant timeframe for consideration of this appeal is confined to the six-month period before the Complainant lodged his complaint to the WRC, i.e. the period from 26 February 2022 to 25 August 2022.

The alleged breach identified to the Court in the relevant period relates to the final payment made to the Complainant on 10 March 2022, after he resigned his employment.

The Court must determine whether the employer breached the Act on that occasion by failing to apply rates of pay as set down in the Construction Industry SEO.

Certain facts in this case are not disputed. It is accepted that the Respondent operates in a sector and is engaged in an economic activity encompassed by the Construction Industry SEO.  It is accepted that the Respondent is the relevant employer for the purposes of the Complainant’s contract of employment. It is also accepted that the Complainant worked on construction sites for the Respondent.

This appeal turns on whether the Complainant was a Worker encompassed by the Construction Industry SEO.

Was the Complainant a worker for the purpose of the Construction Industry SEO?

The Construction Industry Sectoral Employment Order S.I No. 234 of 2019, as amended, applies to: -

“persons employed in the Construction Sector as craft persons, construction operatives and apprentices.”

The Complainant told the Court that throughout his employment he worked as a helper as part of a small group that fixed roofs and installed windows and heated floors. That evidence was not contested by the Respondent. Mr Marcin Tomyz told the Court that the Complainant worked under supervision on small extensions in private houses, and that the work undertaken by him involved painting and installing windows.

The Respondent’s position is that the Complainant was not employed in any construction capacity encompassed by the SEO. The Court had serious difficulty with that assertion. Based on the clear evidence before it from both parties, the Court is satisfied that the Complainant undertook construction work while working on construction sites for the Respondent.

Accordingly, the Court finds that the Complainant was a worker encompassed by the Construction Industry SEO when he worked for the Respondent.

What category of worker was the Complainant?

The Construction Industry SEO of 2019, as amended, sets out certain terms and conditions of employment for persons employed in the Construction Sector as craft persons, construction operatives and apprentices.

It is accepted that the Complainant was not employed as a craftsperson or as an apprentice for the purpose of the SEO.

The SEO sets out three categories of construction operatives as follows: Category A Worker, Category B Worker and New Entrant Worker.

Was the Complainant a New Entrant Worker?

For the purposes of the SEO, 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 are termedNew Entrant Workers.

It is accepted that the Complainant has more than two years’ service working with the Respondent. 

Accordingly, based on his length of service with the Respondent in a construction role, the Court finds that he was not a New Entrant Worker encompassed by the SEO during the relevant period.

Was the Complainant a Category A Worker?

The Complainant asserts that he is a Category A Worker for the purposes of the SEO.

For the purposes of the SEO, scaffolders who hold an Advanced Scaffolding Card and who have four years’ experience; Banks operatives, Steel Fixers; Crane Drivers and Heavy Machine Operators are termed Category A Workers.

The Complainant’s own evidence to the Court was that he is not qualified or certified to work as a Scaffolder, Banks operative, Steel Fixer, Crane driver or Heavy Machine Operator.

Accordingly, the Court finds that the Complainant was not employed as a Category A Worker encompassed bythe SEO during the relevant period.

Was the Complainant a Category B Worker?

For the purposes of the SEO, Skilled General Operatives who have worked in the sector for more than 2 years are termed Category B Workers.

Mr Sugrue BL, on behalf of the Respondent, submits that the Complainant cannot be classified as a Skilled General Operative as the work undertaken by him was not ‘skilled’ work.He asserts that ‘skilled’ work is undertaken without supervision, and that as the Complainant’s work was always supervised it cannot be considered as ‘skilled’ work. Mr Sugrue BL submits that the Complainant worked as a helper and that this work, which was unskilled in nature, is not encompassed by the Construction Industry SEO.

In response to a question from the Court, Mr Sugrue acknowledged that the SEO does not provide a definition of “skilled” worker. However, he submits that the Complainant is a worker, the category of which falls between the New Entrant Operative rate and the Category B Worker rate and so is not encompassed by the SEO.  The Court notes that the SEO of 2019, as amended, does not encompass a category of worker termed “helper”.

The Court finds that the Complainant was a worker encompassed by the Construction Industry SEO while working for the Respondent during the relevant period. 

The Court is satisfied based on the evidence presented that the Complainant carried out construction work/general operative duties on construction sites when in the employment of the Respondent, and that he had accrued more than two years’ service in that role.

As a result, the Court finds that the Complainant was a construction operative encompassed by the Construction Industry SEO.

The Court finds that, having completed two years’ service in an operative role, the Complainant is deemed to be a skilled operative categorised as a Category B Worker for the purposes of the Construction Sector SEO.

Having reached the conclusion that the Complainant was a Category B Worker encompassed by the Construction Sector SEO, it follows that the Respondent as his employer is required to comply with its terms.

The Court finds that the rate of pay applicable to a Category B Worker was €18.47 per hour during the period from 1 February 2022.

The Court finds that the rate of pay actually paid to the Complainant during the relevant period for the complaint was €10.50 per hour.

The Court finds that the Complainant was not paid the statutory rate of pay for a Category B Skilled General Operative as required under the terms of the 2019 Construction Sector SEO, as amended by the SEO of 2021, to be well founded.

The contravention of the Act identified to the Court in the relevant period relates to the last payment made to the Complainant when he ceased employment. That payment is identified on his final payslip dated 10 March 2022 as payment for 8 standard hours work and 25.96 accumulated holiday entitlement.

The Court calculates that the effect of the breach of the SEO during the relevant period for the complaint was to underpay the Complainant approximately €270.66 in wages statutorily due to him in the period.  That calculation is based on [€7.96 per hour underpayment x (8 Standard Hours +25.96 Holidays) = €270.66].

The Construction Industry Sectoral Employment Order S.I. No. 234 of 2019, as amended by the SEO of 2021, sets out statutory terms and conditions of employment for workers encompassed by the Order.

Having regard to the fact that the Complainant was a Category B Skilled General Operative for more than two years and did not receive his statutory rate of pay the relevant period, the Court requires that the Respondent pays to the Complainant compensation of €5,000.

In considering that award of compensation, the Court notes the significant differencebetween the statutory hourly rate of pay for a Category B Worker of €18.75 and the actual hourly rate paid to the Complainant of €10.50 per hour in the relevant period.  The Court calculates that the payment made to the Complainant represents 56% of the statutory rate applicable at that time.

The Respondent’s ignorance of the Construction Industry Sectoral Employment Order at the relevant time does not alleviate him of an obligation to pay a statutory rate of pay.

The Respondent failed to pay the statutory rate of pay applicable.

The Court considers that compensation of €5,000 is an amount that is just, equitable and proportionate having regard to all of the circumstances.  

Decision

The Respondent failed to apply the statutory terms and conditions set down in Construction Industry Sectoral Employment Order S.I. No. 234 of 2019, as amended S.I No. 598 of 2021 [Sectoral Employment Order (Construction Sector), 2021.

The Complaint is well founded.

The Court requires that the Respondent pays to the Complainant compensation of €5,000.

The Decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
GOG	______________________
17 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Garrett O'Grady, Court Secretary.