Complainant

Respondent

Anonymised Parties

A Transport Manager

A Transport Company

Representatives

Frank Drum BL

N/A 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032063-001

05/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032063-002

05/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032063-003

05/11/2019

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

CA-00032063-004

05/11/2019

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

CA-00032063-005

05/11/2019

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

CA-00032063-006

Withdrawn

05/11/2019

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

CA-00032063-007

Withdrawn

05/11/2019

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

CA-00032063-008

05/11/2019

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

CA-00032063-009

Withdrawn

05/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00032063-010

Withdrawn

05/11/2019

The complainant was a transport manager in the respondent’s company on an annual salary of €85,000. He was dismissed for gross misconduct on October 11th 2019. The company in which he was employed was placed in liquidation by order of the High Court on March 6th 2020.   The complainant claims that his dismissal was unfair and carried out without reference to the company’s disciplinary procedures. The respondent’s case is that he was dismissed for gross misconduct.

At the opening of the hearing, a dispute arose regarding the complainant’s start date. On the form he submitted to the WRC, his date of commencement is given as June 11th 2018.

A copy of the complainant’s offer letter and a statement of his terms and conditions of employment were submitted in evidence. The offer letter is dated June 7th 2019 and begins:

“Outlined below are the terms of your employment in the position of Transport Manager with (name of the respondent company) upon the terms and subject to the conditions set out in the attached ‘main terms and conditions’ and ‘our employee handbook.’”

According to the letter, the statement of terms and conditions “formally establishes our legal relationship.” At the hearing, it was accepted by both parties that this offer letter and the accompanying statement of terms and conditions form the complainant’s contract of employment.

On the fifth paragraph on page 2, the letter states:

“Prior to the commencement of your full-time contract on the 11th of June 2018, between the date of this letter and then, you will be expected to make yourself available 2 days per week, based in (address of premises) to support the existing team and commence the process of taking control of transport operations.”

At the hearing, the former chief executive of the company (“the CEO”), said that the complainant started working in his company on August 17th 2019. He produced seven payslips which show that the complainant received wages for seven weeks from week 34, which commenced on August 23rd 2019.

The dispute regarding the complainant’s start date is important from the point of view of his right to have a claim adjudicated upon under the Unfair Dismissals Act 1977.   Therefore, as a preliminary issue, I will address the question of his qualifying service.

The Respondent’s Position Regarding the Complainant’s Length of Service

At the hearing, the CEO said that, for a number of years, a named company was a shareholder in his business and he and the managing director (“the MD”) of the other company operated as a partnership. For convenience, I will refer to the other company as “Company A” and to the respondent as “Company B.” The CEO said that from June 2018 until he commenced with him on August 17th 2019, the complainant was employed by Company A. As evidence of this, he produced a copy of a “payroll submission,” which shows that on August 30th 2019, the complainant was entered for the first time onto the payroll of Company B and received his first week’s pay of €1,634.62 gross and that normal deductions for PAYE, PRSI and USC were applied. This continued for seven weeks until October 11th 2019, with the complainant receiving the same amount, €1,634.62 each week. If he had continued in employment for 52 weeks, he would have earned €85,000 gross.

Regarding the offer letter, which is dated June 7th 2019 but with a commencement date of June 11th 2018, the CEO said that he agreed to employ the complainant as a condition of the exit of the minority shareholder, Company A. He said that this letter and the terms and conditions document were presented to him by the MD of Company A, and, although he signed it, he didn’t read it. He claims that the start date of June 11th 2018 is a “typo.”

The Complainant’s Position Regarding His Length of Service

The complainant’s case is that his start date of June 11th 2018 is the date specified in his contract of employment which is signed by him and by the CEO. For the complainant, Mr Drumm submitted that the principal of “contra proferentem” applies, meaning that, where a phrase or provision in a contract is ambiguous, the preferred meaning is the one which operates against the drafter. As I understand it, this is intended to mean that a person who draws up a contract or signs a contract is expected to understand what is agreed and to adhere to its terms.

Mr Drumm did not ask the complainant to give direct evidence and his case is grounded on his written submission and on documents submitted to the WRC after the hearing, on September 16th. These include a document with the complainant’s name and the heading, “Cross Charge” which shows that for the 13 months from July 2018 until the end of July 2019, the complainant was employed by Company A and that his services were charged to Company B. This document shows that, on July 25th 2018, the complainant was paid €10,352.56 and from then on, on the 25th of each month, until July 25th 2019, he was paid €7,083.33 per month. This is equivalent to an annual salary of €85,000. Payroll summary documents for 2018 and 2019 show that the complainant commenced employment with Company A in the seventh month of 2018 and that he ceased employment in the seventh month of 2019. It is evident therefore that, while the complainant’s first month on the payroll of Company A was July 2018, he commenced in the middle of June 2018.

It is also apparent from these documents that Company A charged another company, which we know to be Company B, for the complainant’s services and that the monthly charge was comprised of his gross salary plus 10.85%, plus VAT at 23%.

Findings on the Complainant’s Length of Service

The relevant provision regarding qualifying service under the Unfair Dismissals Act is at Section 2(1)(a):

“(1) Except insofar as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act*) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him.”

If I accept that the complainant’s start date is the date specified in his contract of employment, June 11th 2018, then, he has completed 16 months of service with the respondent. If I consider the evidence submitted at the hearing and in documents sent to me on September 16th, he has just seven weeks’ service.

This evidence demonstrates that,

1. The complainant commenced employment with Company A on June 11th 2018.

2. For the duration of his employment in Company A, he was assigned to work in Company B.

3. The last time he was paid by Company A was on July 25th 2019. As he was paid for the previous 12 months on the 25th of each month, it follows that his last day at work for Company A was July 31st 2019.

4. When he was employed by Company A and assigned to Company B, the complainant reported to the MD of Company A.

5. On August 20th 2019, the complainant was prevaricating about joining Company B. His note of a meeting on that date shows that he told the CEO, “…before I make a decision, I need to know the reporting path…” At a meeting with the CEO on Thursday, September 5th 2019, there was still no confirmation that he was certain about moving to Company B, as his note shows that he asked, “What’s happening with me – transport?” In the same note he records that the CEO told him that he was “going to cut back” and that he could “go if you want.” The meeting ends with the complainant telling the CEO that his contract provides that he is entitled to six months’ notice. The CEO told him he would come back to him on Monday, September 9th.

6. It appears that there were no further developments until Monday, September 16th, when the complainant and the CEO spoke on the telephone. The complainant told the CEO that he wanted to speak to him regarding his exit and the CEO told him that he didn’t want him to leave. The pair met on Wednesday, September 18th.   The CEO made a proposal to the complainant regarding a specific project to scope out a logistics contract with a retail food business. He offered him a job on the same terms that he had with Company A plus a 10% stake in a new company that he proposed setting up to run the contract. At this meeting on September 18th, the complainant said, “OK but you need to look at the short payment from the first 2 weeks of August.” The CEO replied, “That’s between you and (the MD of Company A). You came across on the 17th.”

The facts set out at 4, 5 and 6 above are supported by notes of meetings and telephone conversations submitted in evidence by the complainant (Appendix 2 of his book of documents).

7. The CEO produced payslips which show that the first week for which the complainant was paid by Company B is the week beginning on Friday, August 23rd 2019, although a copy of an email that the complainant submitted in evidence shows that the CEO approved the payment of his wages from August 17th.

Conclusion

As we have noted earlier, the offer letter issued to the complainant on June 7th 2019 refers to a start date of June 11th 2018:

“Prior to the commencement of your full-time contract on the 11th of June 2018, between the date of this letter and then, you will be expected to make yourself available 2 days per week, based in (address of premises) to support the existing team and commence the process of taking control of transport operations.”

The expectation that the complainant would make himself available for two days a week “between the date of this letter,” June 7th 2019 and June 11th 2018, doesn’t make sense and could not be executed.

We know from the complainant’s evidence that the contract was drawn up by someone in Company A with the approval of the MD and sent to the respondent’s CEO on May 28th 2019. It was signed by the complainant the following day, although it appears to have been issued on June 7th 2019. No explanation was given for this irregular timeline. It seems to me that this contract was authorised by the MD of Company A, with the co-operation of the complainant, to extract the most advantageous terms in the event that his employment with Company B ran aground, which is precisely what occurred.

I find it difficult to accept the evidence of the CEO that he signed the complainant’s contract without reading it, or at least checking the fundamentals, including the start date.   Leaving that serious omission aside, the fact that the contract specifies a start date of June 11th 2018, is not sufficient evidence that the complainant commenced working for the respondent on that date. The weight of the evidence submitted at the hearing points to a start date of August 17th or 23rd 2019.  

The complainant’s own evidence shows that in early September 2019, he was still not committed to joining the respondent’s company and that he decided to take up the position on September 18th. At a meeting on that day, the CEO confirmed a start date of August 17th.   Based on the facts as I have set them out above, the majority of which are gleaned from the evidence of the complainant, I am satisfied that he commenced employment with the respondent on August 17th 2019.

*Section 4 of the Unfair Dismissals Act refers to the dismissal of apprentices in the period of six months following completion of their training and is not relevant to this complaint.

As I have concluded that the complainant has not completed one year of service with the respondent, I have no jurisdiction to adjudicate on his complaint under the Unfair Dismissals Act.

Clause 15 of the complainant’s contract of employment provides that,

“Either party may terminate the Employee’s employment hereunder at any time on not less than six months’ notice, and either party can elect to reduce the working period of 6 months by 3 months, followed by 3 months’ ‘garden leave’ (with payment of full salary). By mutual agreement, the entire period or part thereof can be served as ‘garden leave’ with the payment of six months’ full salary.”

It is the complainant’s case that he did not receive his contractual notice entitlement of six months’ pay amounting to €42,500.

The CEO said that the complainant was instructed to negotiate a distribution contract with a food business, but he engaged in negotiations with the company on his own behalf. He said that, when he was employed by him, the complainant was also working for his previous employer.   The respondent’s case is that the complainant was dismissed for breach of his contract of employment and that this breach amounted to gross misconduct.  

The cover letter accompanying the complainant’s contract of employment refers to an employee handbook, a copy of which was sent to the WRC on September 10th, the day after the hearing of this complaint. The CEO said that this was given to the complainant by the human resources department. Clause B on page 3 refers to probation:

“You join us on an initial probationary period of six months. This does not prejudice our right to dismiss in accordance with the notice provisions contained in your individual Statement of Main Terms of Employment (form SMT), or without notice for reasons of gross misconduct, should this be necessary.”

This is a complaint that the employer is in breach of the Minimum Notice and Terms of Employment Act 1973. Section 4 provides that, at the termination of employment, employees are entitled to certain periods of notice depending on their length of service. Employees who have more than 13 weeks of service are entitled to notice on a graduated basis from one week to eight weeks after more than 20 years of service.

As I have concluded that the complainant had less than 13 weeks of service with the respondent, I find that he is not entitled to notice.

I am satisfied that, at the time of his dismissal, the complainant had not completed more than 13 weeks of service with the respondent and that, in accordance with the Minimum Notice and Terms of Employment Act 1973, he was not entitled to notice. I decide therefore, that his complaint under this legislation is not well founded.

Under the heading of the Industrial Relations Act 1969, the complainant is in dispute with the respondent regarding a claim for unpaid expenses of €6,679.96. The complainant claims that clause 14 of his contract of employment gives him an entitlement to “vouched mileage expenses up to a maximum of €5,000 per annum.” He said that this sum was never paid and at the time of his dismissal, amounted to €6,679.96. He said that he submitted this claim to the Finance Director, but that he didn’t receive the payment.

The CEO’s position is that the complainant was employed by him for seven weeks and did not produce any vouched mileage expenses.

The complainant’s claim for unpaid mileage expenses of €6,679.96 is based on a clause in his contract of employment that provides for a payment for “vouched mileage expenses of up to a maximum of €5,000 per annum.” The complainant produced no evidence of the mileage costs that he incurred, although he could have done so after the hearing.

In general, where vouched mileage expenses are submitted by an employee, they are approved for payment by a more senior person, generally a line manager. The complainant’s line manager was the CEO.   No evidence was produced that the complainant submitted vouched mileage expenses for approval for payment by the CEO and, for this reason, I see no merit in this claim.

I recommend that the respondent takes no action in respect of this dispute.

This complaint under Section 27 of the Organisation of Working Time Act 1994 concerns the complainant’s contention that he was not paid for five days of holidays which accrued during his employment with the respondent.

The respondent’s CEO gave no evidence in relation to this claim.

The complainant did not specify the dates during which five days’ holidays accrued during his employment. Clause 9 of his contract of employment provides that, in respect of holidays, he was entitled to “20 days per annum and pro rata for any lesser period.”   As he worked for the respondent for seven weeks, I calculate that he was entitled to 2.7 days’ holidays that he may not have taken when his employment was terminated.

Based on his annual salary of €85,000, I calculate that the complainant’s daily rate of pay was €327.00. I have upheld this complaint under Section 27 of the Organisation of Working Time Act 1994 and I decide therefore that the respondent is to pay the complainant compensation of €1,000.

The complainant said that he did not receive pay for the public holiday which fell on August 5th 2019.

It is the respondent’s case that the complainant commenced employment on August 17th 2019.

Under the heading of the Preliminary Issue adjudicated on above, I concluded that the complainant was employed by Company A until July 31st 2019 and that he commenced with the respondent on August 17th. Having reached this conclusion, I must also find that, as he was not in the employment of the respondent on Monday, August 5th 2019, he is not entitled to payment for the public holiday that fell on that day.

I have decided that this complaint under Section 27 of the Organisation of Working Time Act 1994 is not well founded.

Under the heading of the Payment of Wages Act 1991, the complainant said that he was not paid wages for the first two weeks of August 2019 and for the week ending on October 11th 2019. At the hearing, he said that he was paid his final wages by Company A on July 25th 2019. He said that, at that point, the MD of Company A was no longer involved in Company B and that he “TUPE’d across” to Company B.

The complainant also claims payment of the contributions which he said the company agreed to pay into a pension scheme on his behalf, as set out at clause 10 of his contract.   This provides that he was “eligible for a contribution to an approved pension scheme of up to €15,000 per annum.”   He claims that no contribution was paid into a pension scheme on his behalf from June 2018 until he was dismissed by the respondent on October 11th 2019.

The complainant engaged in email correspondence with the CEO to have this issue rectified. Evidence he submitted shows that the CEO confirmed to the person in the company with responsibility for payroll that the complainant started work in his company on August 17th 2019 and not beforehand.

Before the complainant was dismissed on October 11th 2019, no decision was made in relation to pension contributions.

Wages for August 1st – 16th 2019 and the week ending on October 11th 2019

The evidence submitted by the respondent shows that the complainant’s first payslip was issued in respect of the week ending on Friday, August 30th 2019.   In his evidence at the hearing, the CEO said that the complainant started work on Friday, August 23rd. Documents that the complainant submitted in evidence show that the CEO and the person with responsibility for signing off the payroll agreed that his first day at work was Saturday, August 17th 2019. While no evidence was presented at the hearing which shows that the complainant was paid for the week commencing on August 17th, his claim is for the period from August 1st to 16th. As I am satisfied that the complainant commenced employment with the respondent on August 17th, I find that wages prior to that date were not properly payable.

The evidence submitted by the respondent shows that the complainant was paid one week’s wages for the week ending on October 11th 2019 and that this was the final week for which he was paid by the respondent.

Pension Contributions

The complainant submitted this complaint under the Payment of Wages Act 1991. Section 1 of the Act sets out a definition of Wages:

“…wages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b) any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

It is clear from subsection (ii) above that “any payment by way of a pension” is not included in the definition of wages and, for this reason, I find that this complaint does not succeed.

In relation to the claim for payment of wages and the claim for payment of pension contributions, I decide that both elements of the complaint are not well founded.

Multiple complaints, unfair dismissal, minimum notice, annual leave, public holidays, payment of wages, industrial relations