Complainant

Respondent

Anonymised Parties

A Worker

An Insulation Contractor

Representatives

Thomas Quigley Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016362-001

13/12/2017

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

CA-00016362-002

13/12/2017

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

CA-00016362-003

13/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016362-004

13/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00017545-001

08/01/2018

The Complainant was employed by the Respondent company from 2000-2007, at which the employment ceased due to lack of business.

In January 2011, having secured a contract from a large multinational company, the Respondent contacted the Complainant to advise him that there was work available to him. The Complainant says that this was initially on a temporary basis but became permanent with the passage of time.

The employment continued until the 24th November 2017.

The Respondent company is in the Insulation business – of buildings and pipework. The Complainant is a skilled insulator, as attested to by the Respondent.

There had been requests, by the Complainant, over the term of the employment, for increases to his pay. The contract that he worked on was the only contract that the Respondent had and he had advised the Claimant that he did not have the resources for pay increases at that time.

A dispute arose about this between the Complainant and the Respondent towards the end of 2017. This resulted in the Complainant walking off the job in November, without contacting the Respondent further. There was one further communication from the Respondent to the Complainant in December 2017, after which, on the 12th December 2017, the Complainant referred his claims to the WRC for adjudication.

The Rate of Pay, what it was based on and the claim of Unfair (Constructive) Dismissal, under Section 8 of the Unfair Dismissals Act, 1977 were the claims addressed at the Hearing by the Complainant.

The Complainant submits that he had been employed by the Respondent since January 2011. That his rate of pay at that time was €18.60 per hour. That this was approximately €1 above the union rate of pay. That during his period of employment with the Respondent that he had requested a pay review, as he felt the Respondent company was “doing well”. He says that the company was not adversely affected by the recession, but that the Respondent would not entertain his demands. He says that when the Respondent company became more busy it would employ further insulators and labourers. One such insulator was employed from November 2016 until September 2017. In discussion with this employee the Complainant “found out that he was on more net money than me”.

That there had been a lot of tension building up because of this situation.

He said, in evidence to the hearing, that another employee was paid, without deduction of tax and PRSI and that if he continued to be treated as he was by the Respondent, with regard to his pay, he would “go to the authorities”. No evidence was brought forward in support of this claim.

The Complainant was now being treated for High Blood Pressure for which he was on medication.

He says that in October 2017 the union rate was increased to €18.93, an increase if €1.33 per hour. He says that the Respondent did not increase his hourly rate by €1.33, but rather increased his hourly rate by €0.33, bringing his hourly rate up to the union rate of €18.93. The Complainant asked the respondent why he was not maintaining the €1 differential that he had up to that point, he said he was advised by the Respondent that the union rate was all he could get now.

The Complainant said that he then left the site as “I could no longer work in that environment”.

The Respondent said in evidence that he and the Complainant had known one another and been friendly over many years, that the Complainant was skilled at his trade and that whenever he had contracts he offered employment to the Complainant.

He says that he was not in a position to concede pay increases over the years referred to by the Complainant because margins were tight in the market, at that time. He says that he treated the Complainant and his other employees as well as he could. This included the payment of a €1000 bonus on completion of a job.

He says that he increased the pay of all staff on the 23rd November 2017 and applied this increase retrospectively for 5 weeks to comply with the increase in the union rate.

On the 24th November the Respondent had a conversation with the Complainant, on the site, during which he was asked if the €1 extra would be paid to him. The Respondent says that he would not pay this. He was asked, at the Hearing by the Complainant’s representative why he would not pay the Complainant the extra €1 per hour. He said that he would not because the Complainant refused consistently to work any overtime when it was necessary to have work completed.

The Respondent says that following the conversation on site, the Complainant gathered up his tools and left the site and did not return to work thereafter.

The Respondent says that he wrote to the Complainant on the 7th December 2017 saying that the Complainant had come to the site between 1.00 – 2.00pm and taken away all of his tools. The Respondent went on to say “Since you did not notify or correspond with us in the last nine working days we will accept this is your resignation from your position in WG Insulations Ltd..

Please find enclosed your payslip, P45, breakdown of holidays and payment cheque for holidays owed to you.”

The Respondent says he received no response to this but notes that the Complainant referred his complaints to the WRC.

Finally, during the course of the hearing, the Respondent says he would offer the Complainant reinstatement to his job with the company if he wished to come back.

I find that the complaints made under the Payment of Wages Act, 1991, that (a) the Respondent made an unlawful deduction from the wages of the Complainant and (b) that the Respondent has paid the Complainant less than the amount due to him, both fail. There was no evidence of a deduction being made from the Complainants wages. There was an increase applied to the Complainants wage, though not as much as he would have requested.

I find, in relation to the claim under the Terms of Employment [Information] Act, 1994 that no evidence was brought forward at the hearing in relation to this. This claim therefore fails.

I find that the claim under Section 8 of the Unfair Dismissals Act, 1977 fails. The Complainant has not been dismissed. He left the job site and the company on the 24th November 2017, effectively resigning his position. The Respondent wrote to him on the 7th December 2017. He did not respond or engage with the Respondent. and made no subsequent contact. The Complainant claimed Constructive Dismissal at the Hearing.

Section 1 of the Unfair Dismissals Act, 1977, defines Constructive Dismissal as “the termination by the employee of his contract of employment with his employer, whether prior notice of termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled , or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”

In the case of Debbie Kearns v Silverfern Properties Ltd. [2013] 2 JIEC 0701 the EAT held that “in order to succeed in a claim of constructive dismissal a claimant must show, that their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal”

The conduct of the employer, I find, was not of a kind that would entitle the Complainant to walk out in the manner that he did.

Under these criteria I find that the claim fails.

Insofar as there are no jobs being lost in this situation, there can be no valid claim for redundancy. I therefore find that this claim fails.

I find that – as above – that the claims in this case fail.