Complainant

Respondent

Anonymised Parties

An Electrician

An Electrical Contractor

Representatives

Connect

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-00028345-001

10/05/2019

Terms and conditions of employment governing the complainant’s position are contained in a national collective agreement; the Construction Workers Pension Scheme (CWPS).

It includes provision for a pension, sick pay and death in service benefit among other provisions.

According to his payslips the complainant was having contributions for the CWPS deducted from his pay.

On April 26th, 2019 the complainant received a letter from the CWPS advising him that his contributions to the scheme had not been received and informing him that he ‘may no longer be covered for Death in Service and sick pay benefit’.

It also advised him to raise the matter with his employer.

He did so on May 2nd and was told on Friday, May 3rd by his employer that everything would be in order for the following Monday.

He did not attend for work on either May 2nd or 3rd and his union subsequently sought payment of his wages for those days, which had been withheld, on the basis that he was not in a position to attend for work due to the loss of cover referred to above.

However, he did not get a positive response and the matter was referred to the WRC.

The respondent accepts that the letter referred to from the CWPS was received by a number of its employees.

The complainant wrote to the company at 08.46 on Wednesday, May 1st but used a wrong email address. However, the Financial Controller was copied with the email, and this made the company aware of the problem. The Financial Controller, who had not been in regular attendance at work due to a medical problem rectified the situation on the morning of May 2nd and wrote to the complainant at 09.50 on that day advising him of this.

One of the respondent Directors also spoke to the complainant that morning confirming this and telling him that contributions were fully paid and his benefits unaffected.

However, the complainant left work later that day without informing management and did not return to work the following day.

The CWPS confirmed by email on May 3rd receipt of payment of outstanding contributions and undertook to contact the complainant to confirm this.

He was not paid for this period of absence which was unauthorised and in addition it resulted in two apprentices who were dependent on the complainant being unattended at work for the duration of his absence.

The key facts are not in dispute here.

Due to the unfortunate circumstances of the respondent Financial Controller’s health problems it appears that payments to the scheme were delayed, although of course this might have had more serious consequences had it not been discovered.

The CWPS advised the complainant of a possible risk to his benefits by means of the phrase that he ‘may no longer be covered’ for certain the scheme’s benefits.

The complainant became aware of this early in the week beginning April 29th. (The correspondence was dated April 26th, the previous Friday).

There is no doubt that the CWPS forms part of the complainant’s terms and conditions of employment. It contains benefits negotiated by the construction industry trade unions and employers.

The complainant’s case was that, in the absence of the cover provided by the relevant schemes he had the right to absent himself form work without the authority of his employer.

The first problem with this contention is that it is not clear whether the cover had expired and there was no evidence submitted at the hearing that it had.

The words used in the CWPS correspondence have all the appearance of an early warning (which had the desired effect) and on their plain meaning do not state that the cover has lapsed. If it had, there is no reason why the CWPS would not have said so in plain English as it would have very serious implications for its liability in the event of a claim.

The complainant’s presumption about the meaning of this communication was without any foundation. There was no evidence either that he took any steps to clarify if the word used actually meant what he presumed them to mean. A call to the CWPS would have cleared this up.

The second problem is whether even the actual loss of this cover entitles a worker to unilaterally break his contract of employment and absent himself from work without authority. The respondent gave evidence that it was fully covered with insurance for its employer liabilities.

If the complainant had issues about the matter, he had the option to process these in the normal way and to continue working under protest if need be. It was submitted on his behalf that he had ‘made every attempt to resolve a matter that was not of his actions’. This is simply not true.

Indeed, if he had contacted his union before taking the action he did there is every likelihood he would have been told to reconsider it.

There was no clear and present danger to him as a result of continuing to work. Again, his submission that ‘the company made it impossible for [the complainant] to carry out his duties’ is transparently untrue.

In any event he had been told by the Financial Controller several hours before he left work that the matter was in hand. He told the hearing that he did not believe, or at least trust this information.

The third problem for the complainant is that in the first instance he waited for several days after he received the notification before leaving the workplace, and then remained away from it even after being given reassurances that matters had been rectified.

In all the circumstances the complaint is several stages removed from validity and has no merit.

I find that the complainant was not justified in absenting himself from the workplace and that his absence was an unauthorised one, in respect of which the respondent was justified in withholding his wages.

His complaint fails.

For the reasons set out above I find that Complaint CA-00028345-001 is not well founded and it is not upheld.

Payment of Wages, absence of worker.