Complainant

Respondent

Anonymised Parties

A Quality Manager

A Construction Company

Representatives

Cheryl Treanor Construction Industry Federation

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-00024057-001

12/12/2018

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

CA-00024057-002

12/12/2018

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

CA-00024057-003

12/12/2018

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

CA-00024057-004

12/12/2018

As Quality Manager for the respondent, the complainant raised concerns regarding the roof construction of a high-profile stadium. He was made redundant and the complainant claims that this was an unfair dismissal. The respondent denies the claim and the other complaints made pursuant to the Payment of Wages Act and Organisation of Working Time Act.

The respondent outlined that the complainant was given notice in July and was made redundant on the 20th September 2018. It submitted that the complainant had not made a protected disclosure as the issues raised were within his role of Quality Manager. He was the only Quality Manager employed by the respondent.

The operations director outlined that the Swiss contractor indicated that the work identified by the complainant would be done under their insurance. The spec had been agreed with all the contractors and inspected by a third party. The work was not within the respondent’s scope of works and was carried out by the main roof contractor. He outlined that the Quality Manual initially assigned to the complainant was not progressed. The complainant had been looking after the materials in an off-site yard and was shunting products over to the site. When the complainant raised concerns, the operations director arranged for a third party to inspect the works. This resulted in pins being changed as a temporary solution with a view to being replaced later. They did a full inspection following the complainant’s concerns, verified by a contractor. The locking forks information was passed onto the structural engineer and this was verified. They knew that the pins had been changed, at the instruction of the main contractor, and they acted per their directive. They executed based on that decision and ensured that all pins were replaced. He commented that the emails exchanged were typical. The respondent’s role ended in September 2018 and there may have been other works in the roof, finishing around October.

The operations director outlined that the respondent is a small company, and everyone is aware of the projects they have on their books. The lead-in for jobs can be six months or a year. He outlined that the roles in Qatar and China were through a prospective business partner, but this venture did not progress. He outlined that he and the complainant had ongoing conversations, a couple of times per week, regarding the future as they were a small company. The complainant dismissed China outright as an alternative and they spoke about this on two occasions. The respondent outlined that it had sought alternative roles for the complainant, but this was only to tie him over. He had ruled out Qatar at a meeting.

The respondent outlined that the duties of Quality Manager involved doing quality control with the respondent and contractors. Some issues required finding solutions while the engineers were happy to proceed with others. On the 20th August 2018, the complainant took the work laptop and the operations director rang him about this. The complainant said he would return the laptop but did not do so for 45 minutes. It transpired that the complainant had forwarded a year’s worth of emails to his personal account.

There were conversations regarding alternative employment from 25th July onwards in relation to Qatar and China. There was a little bit of work remaining at the UK site and one site manager’s time came to an end. The other site manager was retained because of his architectural experience. The respondent witnesses stated that the contract issued to the complainant provided only for one month’s notice.

The complainant referred to the contract which he and the respondent signed, providing for a six-month notice period. There were emails regarding the contract because he was based at the Northern Ireland location. The complainant said that he raised safety issues and the respondent was taken off site. He had identified aspects of the roof of the UK project that did not perform.

The complainant said that he started off at a location in Northern Ireland and then worked in Qatar. In May, June and July 2018, he worked at the UK site. He had expected there to be other projects. The stadium job was not finished and there were still units to go in. This required more quality control work. He thought that he was the respondent’s first Quality Manager. He had expected to be working on the manual for the stadium.

The complainant said that the word ‘redundancy’ was first mentioned on 31st July 2018. Previously, there had only been a phone call on 23rd July regarding alternative work. He was asked whether he would be interested, and he replied that he would be. He could have worked in Qatar. He said that there was no formal offer of work in either Qatar or China.

The complainant accepted that the main contractor of the stadium work would have been surprised to receive his email of concerns regarding the installation issues. He said that this was a huge public job. He commented that the contractor’s report only issued on the 27th July, so he and the operations director could not have discussed this on the 25th July, as stated by the operations director in his chronology of conversations with the complainant. He said that while the email of 23rd July refers to “updates”, this was the first mention of alternative roles. The operations director was to come back with more information about roles in Qatar and China. The complainant did not revert regarding making these arrangements suitable for his family. He said that there was no formal notification of impending redundancies. His redundancy was discussed at the meeting of the 31st July and the complainant raised the notice-pay issue.

In respect of mitigation, the complainant outlined that he had started a new role in the last week in March 2019. He made many applications for roles.

The complainant was Quality Manager for the respondent, a company engaged as a contractor on high-profile construction projects across the world. The complainant had been working on one project, which has been greatly delayed. Via emails in July and August 2018 to the construction team, the complainant raised issues regarding undersized welds being used on the stadium’s roof. The respondent outlines that these issues have been addressed. It submits that the complainant was made redundant following a downturn in the work available.

CA-00024057-001

This is a complaint pursuant to the Payment of Wages Act where the complainant seeks five months’ outstanding notice pay. He refers to the contract of employment, dated the 3rd August 2017. In the section entitled “Notice Entitlement/Requirement”, his copy provides for six months of notice where the employer terminates the employment relationship. In the respondent’s copy, which is unsigned, the document refers to a notice period of one month.

Having considered the evidence and the documents, I find that the contract referring to a six-month period was issued in error to the complainant. I accept that the complainant signed the document in good faith. The question is whether the complainant can now rely on the document to ground a notice pay claim via the Payment of Wages Act.

‘Notice pay’ falls within the definition of ‘wages’ in the Payment of Wages Act. The established approach is that where a contractual term has been included in error by an employer, any additional wages due to the employee will not be recoverable via the Payment of Wages Act as the additional amount is not “properly payable” to the employee [see Tesco Ireland v Balans PWD191].

Applying this approach here, I find that as the contract containing the six-month notice period was provided in error, the complainant is not entitled to rely on the provision to claim the additional five months of notice pay. The additional five months of pay were not properly payable to the complainant. Given the complainant was paid one month of notice pay, there was no contravention of the Payment of Wages Act. The complaint is, therefore, not well founded.

CA-00024057-002

This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment began on the 28th July 2017 and ended on the 20th September 2018. The respondent asserts that a redundancy situation existed, relying on section 7(2)(b) of the Redundancy Payments Act and a ceasing or diminishing of business. It submits that the complainant’s dismissal was wholly or mainly due to the complainant’s role being redundant. It submits that it considered putting the complainant on lay-off but did not as the downturn in business was not temporary. The complainant asserts that his employment was terminated for making protected disclosures. He expresses “surprise” at being told in late July that his role was to be redundant. In August 2018, the parties exchanged correspondence about whether the one-month or six-month notice period was applicable.

In JVC Europe Limited v Panisi [2011] IEHC 279, the High Court held as follows in respect of fair procedures and the assessment of whether a redundancy was genuine:

“It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined. However, that does not arise for decision in this case. Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer, but I do not wish to comment on matters which are outside the competence of the decision to be made in this case: see Stewart and Dunleavy, Compensation on Dismissal – Employment Law and Practice, (Dublin, 2007) at paragraph 19.8.6. As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision. As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.”

The contract of employment provides “Should a situation of redundancy arise where due to business reduction/closure of the business resulting in loss of workforce [the respondent] will follow the fair process and procedures under the Redundancy Payment Acts 1967 – 2014.” As set out in Panisi, a breach of a redundancy procedure, or fair procedures generally, does not automatically mean that a redundancy dismissal is an unfair dismissal. The question is always whether the dismissal was wholly or mainly due to the redundancy.

Assessing the evidence in this case, I note that the respondent was one of several contractors working on a significant, high-profile project. There were problems and delays with the project as a whole. The respondent assigned work to the complainant, including ongoing work on the manual. The complainant raised issues with the work on the roof. There followed several terse emails amongst contractors. This took place mainly in July 2018. At the end of the month, the complainant was informed of his redundancy. While alternatives were mentioned in conversation, for example Qatar or China, there was no formal redundancy process during which these alternatives were explored. The complainant’s employment came to an end, and the parties advanced their differing positions in respect of the applicable notice period.

Taking these findings together, I find that the complainant’s redundancy was not wholly or mainly due to a redundancy situation. I base this finding on the rapid onset of the redundancy situation and how this contrasts with the complainant’s ongoing role on projects, including being assigned the manual. In July 2018, the complainant raised issues within the respondent and beyond, and I note that this would have caused “surprise” amongst head contractors. At the end of the month, the complainant was informed of his redundancy. There was no formal discussion of alternatives to his redundancy, for example a period of lay-off or possible opportunities in Qatar, China or elsewhere. I conclude that the respondent has not shown that the dismissal was wholly or mainly due to a redundancy situation. The complaint of unfair dismissal is, therefore, well founded.

In assessing redress, I note that the complainant’s employment ended on the 20th September 2018 and he started new employment in March 2019. He referred to applying for many roles but has not provided documentary evidence of these efforts. I note, however, that the job spec for the Quality Manager role was issued on the 3rd January 2017 and the complainant took up the role in later July 2017. This points to it taking several months to get a role in this industry and at this level of seniority. Taking account of the circumstances, I award just and equitable redress of €25,000.

CA-00024057-003

This is a complaint pursuant to the Payment of Wages Act for the wages paid to the complainant for September 2018. The complainant’s employment ended on the 20th September 2018 and he was paid €3,230.78 for this period. He says he is entitled to pay of €3,500. The respondent outlines that there were 14 working days in September 2018 and he is entitled to a rate of pay of €240 for each working day. The respondent submits that the complainant was paid the amount due to him.

Assessing the facts of this complaint, I note that the contract of employment provides that the complainant’s salary was €60,000 per year. What is at stake is the complainant’s entitlement to pay until the 20th September 2018. The contract provides for the complainant’s annual rate of pay, which, for convenience, is paid per calendar month. The complainant is, therefore, entitled to be paid pro rata for the days of his employment in September 2018, as opposed to those days deemed to be working days. It follows that the complainant was not paid his full salary for September 2018 and there has been a contravention of the Payment of Wages Act. As redress, the complainant is entitled to be paid an additional €269.22 for September 2018.

CA-00024057-004

This is a complaint pursuant to the Organisation of Working Time Act. The respondent has not provided written confirmation that the complainant took annual leave for half-day on 20th July, a full day on 2nd August and a half-day on 20th August 2018. I find, therefore, that the complaint is well-founded, and the complainant is entitled to two days of pay for the two half-days and one whole day he worked.

CA-00024057-001

I find that the complaint pursuant to the Payment of Wages Act is not well-founded.

CA-00024057-002

For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €25,000.

CA-00024057-003

The complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant redress of €269.22.

CA-00024057-004

The complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant two days of annual leave cesser pay.

Payment of Wages Act / error / properly payable

Unfair Dismissals Act / redundancy

JVC Europe Limited v Panisi [2011] IEHC 279

Payment of Wages Act / error in contract / daily rate of pay