ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003454

Complaint

Date of Adjudication Hearing: 12/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

SUMMARY OF COMPLAINANTS POSITION.

The Complainant was employed with the Respondent as foreman/site manager from 23^rd September 2014. The Complainant was given a written statement of Terms and Conditions of Employment but that contract was not signed or returned by the Complainant. At the commencement of the employment he worked on a specified Site and in June 2015 he commenced work on another named Site. The Complainant was due to commence annual leave on 15^th April 2016 and he was due to discuss moving to a new named Site on his return. The Complainant met the Respondent (named) on 19^th April 2016 to discuss and finalise his hours and remuneration on this new site. He received an email from the Respondent on the same date at 22.15 setting out the details of the revised conditions of his contract of employment – copy provided. There was further email contact on 25^th and 27^th April 2016. The Complainant was due to return to work on Tuesday 3^rd May 2016. He returned to the new site which was deserted. The Complainant tried phoning the Respondent and the Complainant emailed the Respondent at 7.51 on 3^rd May informing the Respondent he was at the site which was deserted and seeking direction from his Employer. He received a response from the Respondent some 40 minutes later asking the Complainant to call him. He did and he was instructed to go home and that a meeting would be arranged. This meeting took place on 12^th May 2016 at which the Complainant sought clarity on start date and his remuneration. The Respondent replied on 26^th May 2016 outlining the terms and on 28^th May 2016 the Complainant accepted the terms offered and requested a start date. There was no response.

The Complainant received emails on 2^nd and 3^rd June 2016 informing him of his accrued annual leave entitlements and informing him his P45 had been issued to him. The Complainant asserted that he was dismissed on 31^st May 2016. The Complainant stated that he did not apply for Jobseekers Benefit from the Department of Social Protection. He commenced employment on 3^rd October 2016 on €40,000 per annum, lower than his previous salary. The Complainant referenced a number of Decisions of the Courts in support of their arguments.

SUMMARY OFRESPONDENT’S POSITION

The Complainant commenced employment with the Respondent on 23^rd September 2014 on a project by project basis, stating that he wished to get his own Company up and running. The Complainant refused to sign his Contract of Employment. His first project was on a named Site as Site Foreman. Around September 2015 he agreed to take the Foreman Position on another named site. In or around this time the Complainant did set up his own Construction Company (named) and he is listed on the Companies Registration Office Site. The next project was to be, named. However the Complainant would not commit to working on this site and sought a review nearer the time for the commencement of the Construction. The Complainant did seek annual leave over Easter on the basis that he had to complete construction work for a client of his own Company. He was requested to defer as the existing project of the Respondent Company was running some 4 weeks behind schedule and he agreed.

The Respondent recruited a Contracts Manager in March 2016 to oversee projects in particular the next named project he was discussing with the Complainant as it was a much bigger site. The role of the Contracts Manager was to work with the Foreman to complete the development on time. Work commenced at the end of March 2016. On 7^th April 2016 the Complainant attended the office of the Respondent and seemed to be annoyed at the recruitment of the Manager and queried his role now in the Company. The Complainant commenced annual leave on 15^th April 2016. The Respondent attended at the site where the Complainant was working on 8^th April 2016 and the Complainant confronted him about the Manager and stated he was not taking orders from him and became very annoyed and angry concerning his place in the hierarchy. The Respondent met the Complainant on 14^th April 2016 and sought to sort out the issues concerning him and sought his commitment to continue working with the Respondent. The Complainant sought an increased package. And a further meeting was arranged for 19^th April 2016. Talks broke down at this meeting as no agreement could be reached in relation to an enhanced package and it was agreed to pay the Complainant any outstanding monies owed.

The Respondent stated that the Complainant was not dismissed but it was the Complainant who refused to work for the Respondent on the basis of the terms offered.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence and written submissions from both Parties I find as follows-

-The Adjudication Officer sought to clarify with both parties at the commencement of the Hearing the pay received by the Complainant from the Respondent. The Complainant stated in evidence that he was paid his wages but that he was also paid €1000.00 cash in hand a fortnight. There was no evidence presented to me by the Complainant to verify this. The respondent stated that the Complainant had his own Construction Company and this Company provided construction materials to the Respondent for which the Complainant was paid. The Respondent provided evidence that the Complainant was paid the following amounts into his Bank Account in relation to the provision of Construction Material –n26/5/2015 of €12,000 – 25/9/2015 of €5,440.00 – 16/12/2015 of €2494.80 – 23/3/2016 of €832.00 – 23/5/2016 of €16,000.00. I note that the Complainant’ P60 for 2015 shows he received Total Pay of €36,887.60. If the Complainant was as he states, receiving payment of cash in hand of €1000.00 per fortnight then this was not subject to Tax, PRSI or USC in contravention of the law. I note that the Contract of Employment given to the Complainant is silent on his salary. I also note that the Complainant confirmed he did receive a payslip each week but none were offered in evidence to me by either Party. I also note from emails of September 2015 that the Complainant was to be paid €600.00 net per week

- I have examined in detail the exchange of emails between the Parties dating from 2014. An email of 19^th April 2016 from the Respondent to the Complainant shows a Gross Annual Salary of €41,600 plus €70.00 per week for diesel, plus €10.00 per week for phone but then there is an “Extra” of €26,000 (€500.00 per week) which is unquantified and was not clarified at the meeting. There was an exchange of emails in May 2016 with the Respondent emailing the Complainant on 26^th May 2016 which states as follows- “Foreman needs to stick to the site hours of 7.30 – 6 Monday to Thursday and 7.30 – 4 on Fridays. Package includes salary of €60k plus company van & diesel plus company phone. Please let me know if you can work with this”. The Complainant responds by email dated 28^th as follows – “This will work. …When I have to start on site”. The Respondent responds by email dated 31^st May 2016 as follows “will you give me a call today to sort” The Complainant responded on the same date requesting the Respondent to phone him.

- However I note that the Respondent in an email between named employees that the Complainant was issued with his P45 on 29^th April 2016. This was forwarded to the Complainant by the Respondent by email dated 3^rd June 2017. However the exchange of emails between the Parties suggest that discussions were ongoing in relation to the “package” to be paid to the Complainant with the Complainant accepting the offered package by email dated 28^th April 2016.

- There was no evidence presented to me as to any exchange between the Parties post the last email, which I was provided with dated 28^th 2016 in which the Complainant confirms that the offer of 26^th May 2016 of the Respondent will work. The Complainant in his complaint form to the WRC states that his employment terminated on 29^th April 2016 with notice received on 31^st May 2016 but shows no evidence to support this while the Respondent in their submission states that talk broke down at a meeting between the Parties on 19^th April 2016. The Respondent issued the Complainant with his P45 on 29^th April 2016.

I note that the Complainant stated at the Hearing that he did not claim Jobseekers Benefit from the Department of Social Protection but did not provide confirmation of this as requested at the Hearing. I further note that the Complainant stated that he had commenced employment on 3^rd October 2016 with a named Employer where he is paid between €750 and €800 net wages per week and works a 40 hour week. He did provide a copy of his P60 for his employment with this named Employer which confirms that he commenced employment on 3^rd October 2016.

Decision:                                            

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

On the basis of my findings above I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €5000.00 (five thousand euro) within 42 days of the date of this Decision. This award of compensation takes account of Section 8 (11) of the Act in relation to the alleged payments made to the Complainant of €1000.00 a fortnight paid cash in hand.

Dated:   30^th August 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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