Complainant

Respondent

Anonymised Parties

A pipe fitter

An Engineering Company

Representatives

  In person

Lorraine Smyth, Byrne Wallace Law Firm

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00050842-001

24/05/2022

The worker was employed by the employer from 15th October 2021 to 29th November 2021, he was employed as a pipe fitter.

This complaint was received by the Workplace Relations Commission on 24th May 2022.

BACKGROUND

The worker was employed by the employer for a six-week period from 15 October 2021 until 29 November 2021. The employer is part of a larger group of companies.

The worker was employed as a Sprinkler Fitter.  Under clause 5 of the employment contract, the first three months of his employment was on a probationary basis. Section 6 of his contract of employment sets out the hourly rate applicable to him in this role as being €19.96 per hour.

Prior to joining the Respondent Company, the worker was employed by another company (Company F). The workers former employer has no connection or association with the Respondent. Company F was not acquired or merged with the Respondent or any company in the Respondent group of companies, as suggested by the worker on his complaint form.

In 2021, the Respondent company was working on a project site with the National Children’s Hospital (NCH). Company F was also engaged on the same project. At that time, Company F had a workshop in Kerry fabricating pipework for the project and also a team on site installing this pipework. Managing both areas was proving difficult and unworkable for Company F, so they decided to focus on their workshop only and step away from their site-based activities.

In light of this, the Company F team on the NCH site were told they could apply to join the Respondent company, if they wished.  In September 2021, the worker applied for employment with the Respondent.

 RESPONSE TO COMPLAINT

In the circumstances outlined above, the Respondent Company recruited a number of members of the on-site installation team from Company F to work on the project at the National Children’s Hospital. In total, 18 former employees of Company F commenced in the employment of the Respondent in October 2021. This included a number of fitters.

Each new recruit completed an application form for employment with the Respondent company. The Respondent paid all of the new recruits in accordance with the rates applicable under the Construction Industry Sectoral Employment Order, as applicable in October 2021. Some adjustments to the rates of pay were necessary for some of the former Company F staff to ensure that the Respondent company would be compliant with the provisions of the SEO. The majority of individuals hired by the Respondent from Company F were paid the same rate of pay as they had been paid by Company F however, including the worker (claimant).

The worker (claimant) was offered the same rate of pay as he had in his previous employment, being €19.96 per hour.

According to the worker’s (claimant) CV, he had not served a recognised apprenticeship in a mechanical trade and in light of this he could not be paid as a Fitter under the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Section) 2018 (SI 59 of 2018). Instead, he was paid the Craftworkers rate under the Sectoral Employment Order (Construction Sector) 2019 (S.I 234 of 2019). This was the same rate of pay that he had received from his previous employer and was offered by the Respondent based on his qualifications.

The Respondent understood that the worker (claimant). had previously been paid a Travel allowance when he had been employed by Company F. The Respondent pays Travel time-based on-site location. In his employment with the Respondent, the worker (claimant) received an allowance of 1 hour travel time (per day).

As part of the recruitment process, a small group of employees were requested to attend a meeting with the Contract Manager due to the fact that they had slightly different arrangements to what the Respondent would ordinarily pay. A union representative (Brian Nolan of Connect) attended that meeting, at the request of one of the attending employees. It was explained to Mr Nolan at the outset of the meeting that he was only there as a representative for the group in attendance, and that was agreed by him. An arrangement was agreed with that group. Their circumstances were different to the worker (claimant).

The worker (claimant) assertion that General Operatives rates were increased to the same rate as his is incorrect.

On 18 November 2021, the worker (claimant) sent an email to the Contracts Manager. In that email, the worker (claimant) set out his dissatisfaction with his rate of pay. He concluded that email by saying that from then onwards he was a general operative and would not be fitting pipe.

Between 18 November and 29 November 2021, the worker (claimant) did not carry out his duties as a Fitter. The Contracts Manager had a call with the worker (claimant) on 29 November 2021.  On the telephone call, the Contracts Manager discussed the email that the worker (claimant) had sent. The worker (claimant) stated that he would return to his Fitter duties and that he had not signed the contract that had been issued to him. There was no reference to the worker (claimant) sending the email to get the Contract Manager’s ‘attention’ or to there being any ongoing dispute between the worker (claimant) and the company. The worker (claimant) accused the Contracts Manager of lying about the site closure in March 2020, which was at the start of the first Covid lock-down. [At that time there was a governmental announcement preventing building sites opening and the client and in turn the main contractor closed the site. The Respondent Group informed Company F’s owner, and not any individual Company F employees, that the site was closed. After a couple of days, the company was allowed to bring back some operatives based on the client clarifying that only essential works could take place within the governmental guidelines. The Respondent was advised by the main contractor that these works could only be in the open air to prevent transmission and allow social distancing, therefore the only works available were external fire ringmain works. Therefore, only a particular team could return. The worker (claimant) was not part of that team as he did not have the skills or experience to carry out these works.] It was clarified to the worker (claimant) that if he had a grievance about this, he could raise it with his employer of that time, Company F.

Given the tone and nature of the worker (claimant) engagement with the Contract Manager he advised the worker (claimant) that the contract offer to work with the Respondent was being retracted.

 Following his call with the worker (claimant) the Contracts Manager sent an email to the worker (claimant) on 29 November 2021 confirming that he had not been employed as a general operative and that since he was unwilling to accept the current contract offered as a fitter, that the offer of his employment was being retracted.

After the call with the worker (claimant) on 29 November 2021, the Contract Manager did not have any discussion with a union representative in relation to the worker (claimant) nor did he agree to return the worker (claimant) to work with the respondent.

The worker (claimant) last day of employment with the Respondent Company was 29 November 2021.

CONCLUSION

 It is submitted on behalf of the Company that the worker (claimant) was paid the correct rate of pay based on his stated qualifications. His rate of pay was in accordance with the Sectoral Employment Order applicable in October 2021 and was the same hourly rate that had been paid to him in his previous employment.

 The worker (claimant) did not accept the rate of pay that was paid to him and had ceased carrying out the duties of a fitter for which he had been offered employment. When this was raised with him, he accused the Contracts Manager of lying-in relation to a site closure.

The worker (claimant). was within his probationary period and the Respondent was not satisfied with either the tone or manner of his engagement with the company. The worker (claimant) own actions contributed very significantly to his dismissal.

For the reasons stated above the Respondent submits that the Adjudication Officer should not uphold the complaint made by the Complainant.

The Respondent reserves the right to make further submissions at or subsequent to the hearing of this matter.

In April 2020 the Complainant was informed by his supervisor that acting on instruction from the Respondent Contract Manager the site would be closing for a one-week period. When the worker (claimant) returned to work the following week, he was told by a colleague that the site wasn’t closed and that all personnel were actually in work and had been instructed not to say anything to the Complainant in this regard.

In October 2021 the Complainant’s employer at that time, Company F was to merge with the Respondent group and that his employment would continue with them starting on 15th November 2021.

The Complainant contends that he was informed by the Contract Manager that his take home pay with the Respondent would be the same as it was with Company F. When he (the Complainant) discovered this was not the case he, with some of his colleagues, asked for a meeting with THE Contract Manager. When this was declined the Complainant, and his colleagues contacted their trade union. After some talks with the trade union the Contract Manager arranged to meet with a group of employees however the Complainant was not invited to attend this meeting. When the Complainant asked to attend the meeting, he was informed that he would be represented at the meeting by those attending the meeting. Those attending the meeting received an increase of €2 per hour. At the same time general operatives received a pay increase that would result in them being paid the same hourly rate as the complainant.

On 18th November 2021 the Complainant sent an email to the Contract Manager that read as follows:

“All I wanted was my take home pay to stay the same as we were told at the beginning. Which is not the case! But that’s not the first time I’ve been lied to by the Respondent. I’ve 3 kids and a mortgage to look after and you want me to do the same job for less pay? No, I won’t be made a fool of especially when there are GO’s on fitters rate and all they do is ush pallets around and hide for the day and now you have fitters doing the same job as me for €2 more??? It’s obvious what you think I’m worth. So, from now on I’m a GO and I won’t be fitting pipe”

As per complaint form the Complainant adds that despite what he wrote in his email he continued to do his normal duties and fulfilled what was expected from him.

The Contract Manager rang the complainant on Monday 29th November 2021 and asked him to explain what was in his email. The Complainant informed the Contract Manager that he was aware that he had lied to him about the site closure in April 2020 to which the Contract Manager told him he was talking rubbish.

The Contract Manager then went on to inform the Complainant that the rate of pay for other employees were none of his business and he should concentrate on his own work. The Contract Manager then went onto ask the complainant if he was willing to fulfil his duties to which the Complainant said yes. The Contract Manager then asked was he willing to work on other sites to which the Complainant said yes and then the Contract Manager asked had he signed his contract to which the Complainant replied no, he would not sign the contract while there was a dispute involving his union ongoing.

It is the Complainant’s contention that the Contract Manager then informed him that there was no contract offer for him and hung up. The Complainant then received an email from the Contract Manager stating there was no contract for him as he was unwilling to accept the contract on offer.

The email sent by the Contract Manager read as follows:

XXXXX,

There is no contract offer for you as a General Operative.

Since you are unwilling to accept the current contract as a Junior Fitter, please note that the offer is now retracted.

Kind regards,

The Complainant contacted his site union representative who informed him that he would speak to the Contract Manager. The following day (30/11/2021) the union rep rang the complainant asking had everything been sorted out and what site was he working on. The Complainant informed the union rep that he was at home. The union rep informed him that he had spoken to the Contract Manager the previous day and had been informed by him that he would ring the Complainant and offer him his job back on a different site. The Complainant received no phone call from the Contract Manager and never heard again from his union rep.

The Complainant states that he received no notice of the termination of his employment nor was he offered any disciplinary process.

Approximately one hour after the phone call with the Contract Manager on 29/11/2021 the Complainant was informed by the site supervisor that he had until the end of his shift to be off site.

The Complainant states that in his 23 years of work he has never received as much a s a disciplinary warning and has always enjoyed a good working relationship with all his colleagues.

Since this incident the Complainant has struggled to find other work and feels he has been blacklisted.

The worker was employed for a six-week period, there can be no question of his contract of employment being retracted – this was a dismissal.

The contract of employment under the heading of Probation reads as follows:

The first three months of your employment will be probationary, and your employment may be terminated by either party on the giving of one week’s notice in writing at any time during or at the end of your probationary period. The Company at its discretion may extend the probationary period.

Although an employee is on probation, s/he is still entitled to fair procedures and natural justice when it comes to termination.

In Grant Thornton v A Worker (LCR 21543) the claimant submitted a complaint to the Labour Court under s 20(1) of the Industrial Relations Acts 1946 to 2015 in respect of the decision of the respondent to dismiss her during her probationary period and agreed to be bound by the Court’s recommendation.  The respondent submitted it was entitled to dismiss her under her contract of employment as she had not satisfactorily completed her probationary period.  The Court found that the respondent failed to adhere to the requirements of the code of Practice on Grievance and Disciplinary Procedures (SI 146 /2000) before the decision to dismiss the claimant was taken.  In coming to that conclusion the Court had regard to the following: while the claimant was invited to attend a probation meeting the decision to dismiss had been taken prior to the meeting; the claimant was not advised in advance that the purpose of the meeting was to effect her dismissal; the claimant was not afforded an opportunity to be accompanied at the meeting; and no appeal procedure was available to the claimant in respect of the decision to dismiss her.  The Court was also critical of the fact that the claimant’s contract of employment purported to provide that normal disciplinary procedures did not apply during the probationary period, noting that the Code of Practice applied in all circumstances where an employee was at risk of having his/her employment terminated.  The Court recommended that the claimant be paid €1,500 in compensation in full and final settlement of the claim before it.

Whilst the Grant Thornton v A worker case is different to the instant case there are some similarities. There was no process adopted by the Respondent in the instant case and the worker was unrepresented and no right of appeal was offered i.e., there were no fair procedures and natural justice was totally absent.

The worker should not have sent the email on 18th November 2021 and should not have threatened to only carry out the work of a General Operative.

The incident in 2020 when the worker was employed by another company is totally irrelevant.

Both parties have handled this situation badly.

I find that the worker was unfairly dismissed although I believe his actions contributed 40% to this dismissal. I now recommend that the employer pays compensation of €5,000 (less 40%) (the amount of compensation payable is €3,000) to him in full and final settlement of this complaint.

This amount should be paid within 42 days from the date of this recommendation. 

I find that the worker was unfairly dismissed although I believe his actions contributed 40% to this dismissal. I now recommend that the employer pays compensation of €5,000 (less 40%) (the amount of compensation payable is €3,000) to him in full and final settlement of this complaint.