Complainant

Respondent

Parties

Graham  Coffey

Cullenbridge Services Limited Hollyfort Services

Complainant

Respondent

Anonymised Parties

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Representatives

Thomas Faulkner  

Neil Breheny Neil J. Breheny & Co.

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-00054622-001

23/01/2023

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

CA-00054622-002

23/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00054622-003

23/01/2023

The Complainant commenced employment with the Respondent company on 15 August 2022.  He was employed as a carpenter. His employment ended on 18 January 2023. The Respondent is a construction and maintenance company, employing around 50 people.

The Respondent submits that there was no dismissal of the Complainant on any grounds other than the company’s Managing Director had lost confidence and trust in the Complainant and believed the Complainant was not a suitable employee of the company going forward.

The Respondent submits that prior to the commencement of his employment the Complainant was given a copy of the Contract of Employment applicable to him which he signed on 1 August 2022 and sent back to the Company before starting work. The Contract of Employment, at Clause 11, stated:

“Your weekly net pay will be €780, + €50 per week fuel card”

The Respondent submits that due to an error in the payroll system, the payment of the Complainant’s first approximately 12 weeks was greatly more than the amount agreed as wages for him, resulting in an overpayment of €2,681.45.

The Complainant was informed of the payroll error and invited to meet the with the Company’s Managing Director in the first week of December.   An apology was made for the error. A new Contract specifying an amount of €23 gross per hour (rather than a specified net figure was agreed) starting immediately, and the parties at the meeting agreed that the Respondent would not be looking for the Complainant to repay the overpaid wages, provided the amended contract was signed and that the Complainant continued as a company employee for six months. It was also agreed at that meeting that the Complainant would have his wages reviewed at that time i.e. at the period of six months. The parties shook hands.  There were no other changes proposed to the Contract of Employment. The Complainant failed to sign the amended contract and never did so.

At the resumption of the Respondent’s business in the New Year, the Complainant had still failed to sign the amended contract as agreed.  He did not believe he had been incorrectly paid.

The Respondent submits that the Managing Director (MD) of the company had, at this stage, lost confidence and trust in the Complainant for his failure to deal fairly with the company because of the error.  He had lost trust because the Complainant had failed, firstly to bring the error to the company’s attention and had continued to take money he knew was not rightfully his to receive. Secondly, he had not then dealt fairly with the company when the matter was resolved and had not accepted the error or the amended contract. The Complainant, according to the Respondent, appeared to be of the view that he was entitled to the higher wages simply because they had been paid to him at the start. The Managing Director made the decision that he believed that the Complainant was not a good fit for the company and that his employment should be terminated.  A letter was sent from the company to the Complainant to that effect dated 18 January 2023.

The Managing Director (MD) of the Respondent gave evidence on Affirmation at the hearing.

The MD stated that he is the only shareholder in the company, and he makes the final decisions. He stated that the Complainant had been overpaid from the commencement of his employment and that this had not been detected until around December 2022.  The MD pointed out that the Complainant had never raised the overpayment and that it amounted to a figure of €2,600.  The MD was annoyed with Payroll over this error and he planned to get the money back coming up to Christmas.  He asked the Complainant to come in to discuss the matter in the second week of December. The MD stated that at this meeting he told the Complainant he could keep all the money [€2,600] if the company could adjust his contract. The MD stated that this was agreed with the Complainant and they shook hands.

The MD stated that a second contract was drawn up, amended to reflect the change in the rate of pay.  However, the Complainant never signed this contract. The MD stated that he was frustrated and very annoyed that the Complainant had not signed the contract.  He said that the company places great emphasis on trust and the Complainant’s failure to bring the overpayment to the Respondent’s attention was a breach of trust.  Subsequently “lots of questions” and “nuisance enquiries” were coming in.   The MD decided that if matters were not sorted out by January, he would have to take action.  By early January he decided that he had given the Complainant a chance, the questions had gone up and he made a rule that it had to stop- it was “not getting anywhere”.

The MD stated that he had lost trust in the Complaint as the hoped for clean start of the new year had not happened; “if I didn’t get the paperwork back that was it.”

The MD also stated that there had also been an issue with the Complainant’s use of a fuel card. The Complainant had gone some 30% above his €50 allowance in December/January. This was another flag for the MD.

The MD explained that 18 January 2023 was the day the Complainant was dismissed, although he had tried to do it earlier. That day he went to the site where the Complainant was working and told him that he was not the right fit for the company and that he was dismissing him.

The MD stated that the Complainant had stirred up a lot of trouble on site, he had spoken to others and told them they would not be paid, this was another flag for the Respondent and was another reason for his decision to dismiss the Complainant.

The MD categorically denied that an agreement had been made with the Complainant that he was to be paid €25.50 per hour before he commenced his employment.  The MD stated that what was on the contract was what had been agreed.

The MD also stated that he had nothing against Trade Unions.

In response to my questions the MD stated that the company was non-unionised. That disciplinary issues related to “loss of trust” are looked at on a case-by-case basis. Regarding the emails referred to by the Complainant’s side as indicating a link between the union’s representations to the Respondent and the dismissal, the MD stated that he did not see it, that he was “not aware” of the emails, that the company gets 100s of emails.  That he knew nothing of them, that they did not have an effect on him [in his decision to dismiss the Complainant].  It was a “coincidence”.

In cross examination the MD was asked if he was familiar with the Construction Industry SEO, to which he replied that he was “somewhat”. When asked if he applied the rates of pay laid down in the SEO (SI 598), he replied in the affirmative.  The MD stated that some employees were on different rates to others.  When asked whether the Complainant should have been of the full SEO rate the MD answer was yes. When asked if the Complainant should have been in receipt of Pension, Sick Pay and Death in Service benefit he answered yes.; that this had been something they had looked at, it was “an error on our part.”

In Summary, the MD stated that he dismissed the Complainant for four reasons (i) The failure to raise the overpayment (ii) the issue with the fuel card (iii) he was the wrong fit (iv) trust was gone.

In conclusion, the Respondent submits that S 2 of the Act states that it shall not apply to someone with less than one year’s continuous service.  There was no right to disciplinary procedures in the circumstances.  The MD is entitled to take the view that a person is not someone with whom he wants to work. The Complainant was not accused of anything. The Complainant’s side had not put forward any evidence relating to the issue of trade union activity except for two emails. The MD’s evidence was that he had lost trust in the Complainant.

The Complainant provided a written Submission.

The Complainant submits that when he joined the Respondent company in August 2022, he was paid €25.50 gross per hour, as agreed with the company Managing Director and the People and Culture Manager.  Sometime later 2022, the Complainant was approached by the company’s Commercial Manager and presented with a new Contract of Employment to sign.

Upon reading the new contract the Complainant noticed that the rate originally agreed with the company was reduced by €2.50 an hour to €23.00 per hour.  The Complainant was told by the Commercial Manager that he had been overpaid and that he owed the company back the amount of the overpayment but that if he signed the new contract accepting the lower hourly rate, the company would waive the overpayment.

The Complainant refused to sign the new contract so, according to the Complainant, the company unilaterally changed the Terms and Conditions of his employment, without his consent. At this stage the Complainant asked his Trade Union to become involved, which they did.  The Union emailed the company seeking a meeting to discuss the issue. The Union subsequently sought another meeting with the company on the matter but to no avail.

The Complainant submits that despite the Union’s efforts to meet the company, on 18 January 2023, he was approached by the Managing Director and the Commercial Manager on the site he was working and told he wasn’t a good fit for the company, to pack up his tools and leave the site as he was being dismissed.

The Complainant submits that an internal communication of which he has had sight, leads him to believe that his employment was terminated because of him being a Trade Union member.

Following his dismissal his union tried to appeal the decision but received no reply from the company.

The former People and Culture Manager for the company gave evidence on affirmation at the hearing.  The witness stated that she was employed by the Respondent in 2022 when the Complainant joined. The witness testified that when the Complainant was about to start working for the company a rate of €25.50 gross per hour was agreed between the Complainant and his manager.  The Managing Director also agreed this rate.

The witness also stated that she was never approached for advice [about changes to the Complainant’s contract of employment] nor was she approached to make any changes to his contract of employment.  When she learned a change had been made, she checked with a colleague in Payroll who told her that the Complainant’s rate of pay had been reduced. When the witness asked her whether there was written consent for this change in the Complainant’s contract, she was told that, the payroll colleague does what she is told to do by the Commercial Manager.

In response to questions from me the Complainant representative stated that the timeframes between the emails from the union, the correspondence between the MD and Commercial Manager are such as to make them believe that the Complainant was dismissed due to him seeking his right to associate.

The Complainant stated that he had been a member of the Conect Trade Union since 2017 and he did not agree he had been overpaid.

In concluding, the Complainant submits that because of the actions taken by the Respondent, he can only conclude that his employment was ended due to his union membership.

Section 2(1)(a) of the Unfair Dismissals Act states the Act shall not apply to:

“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 and whose dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act”

The Act sets out exceptions to this service requirement and states: “Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” 

The Complainant does not have the service and is relying on section 6 (2) which states:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)       The employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer to so engage,”

Section 14 of the 1993 amendment to the Unfair Dismissals Act removes the requirement for a person claiming that their dismissal arose from trade union activity to have completed one year of service with their employer. I refer to the decision in Michael Reid v John Oxx, [1986] ILT 4, 207, where it states that, “…where a person is dismissed for trade union activity the necessary qualification of a year’s employment so as to qualify for redress under the Act is dispensed with but at the same time the presumptions under subsection (1) and (6) of the section putting the onus ofproof on the employershall not then apply.”

It follows therefore that the legal burden is on the Complainant to show that his dismissal was wholly or mainly on the ground of trade union membership/ activity.

In this case, I am not investigating whether the dismissal was unfair in and of itself. I have to consider if the dismissal resulted “wholly or mainly from” the Complainant’s union membership or activities.

The Respondent’s evidence is that the Complainant’s refusal to flag an “overpayment” and then accept a reduction in what he believed to be his agreed rate of pay caused concern for the Respondent.  An overspend on his fuel card also raised alarm bells for the Respondent. These lead the Respondent to believe that the Complainant was not trustworthy nor a good fit for the company.  The accumulation of these beliefs led the Respondent to believe that it would be best to dismiss the Complainant, which he did without any warning being given to the Complainant.

The Complainant’s evidence is that the Respondent attempted to reduce his agreed rate of pay and when the Complainant’s union attempted to make representations on his behalf, he was dismissed post haste.

Having considered the evidence put before me, I find it an incredible that an email was sent to the Respondent from the Complainant’s union representative on 17 January 2023 and the Complainant was dismissed on the 18 January 2023, without them being linked. Up to that point there had been no warnings, complaints made by the Respondent about the Complainant, save for the issue of his rate of pay (in which the evidence of the former employee was telling).

I also note the contents of an email chain between a manager and another person, which includes the following dialogue:

“Graham has been let go, can you send him a pdf confirming his termination effective immediately and pay in lieu of notice.”

What happened? saw the emails from trade union.”

“Exactly. He’s trouble. Needs to be gone.”  

This exchange indicates to me that in seeking his union’s help in the matter the Complainant was deemed to be “trouble” and needed to be dismissed.

For the above reasons I find that the Complainant’s dismissal was “wholly or mainly” due to his union activities.

As regards mitigation, the Complainant took up employment in mid-March 2023, enjoying similar terms and conditions to those he had enjoyed with the Respondent company., thus his loss amounted to circa two month’s pay. I find it just and equitable that the Complainant be awarded the equivalent of circa two month’s pay.

The Complainant was unfairly dismissed, and I award him €8,000.

The Complainant submits that his rate of pay was reduced from €25.50 to €23.00 without his consent for the period 8 December 2022 until his dismissal on 18 January 2023.

In evidence at the hearing the MD stated no money had been deducted from the Complainant’s pay, that the company had corrected his salary as it should have been.

The Respondent put forward that the Complainant had been overpaid, that there had been no illegal deduction and that when the Complainant’s wages reverted to what they should have been, that was only what he had agreed to in the first place.

Section 5 of The Payment of Wages Act 1991 states;

 (1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a)   the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    In the case of a deduction, the employee has given his prior consent in writing to it.

Regarding the deduction in pay between the 8 December 2022 and 18 January 2023, the deductions which are the subject of this complaint are clearly not required by statute, did not constitute a term of contract nor were they given by prior consent. I believe the evidence of the Complainant in this matter. This was a unilateral change made by the employer.

 I calculate the loss as follows 8 weeks x 39 hours x €2.50 = €585.00

The complaint is well founded, and I direct the Respondent to pay the Complainant €585.00.

The Complainant submits that when checking his payslip, he noticed that the Company did not register him into the Construction Workers’ Pension Scheme, which is a requirement under the SEO for the Construction Industry.  As he was employed for a 23-week period, he lost out on contributions not being paid in on his behalf, to the amount of €1,101.16.  The Complainant refers to the SEO SI 598 of 2021 and the Respondent Company’s own Contract of Employment regarding, Pension, Sick Pay, Death in Service, to which the Company did not adhere.

At the hearing the Respondent MD accepted that the Company is covered by the relevant SEO and should have made the applicable pension deductions.

This is a complaint of a contravention of the Construction Sectoral Employment Order and section 23 of the Industrial Relations (amendment) Act, 2015. The Complainant’s put forward that there was a shortfall of pensions contributions of some €1,101.16.  As well as an award in this amount, I make an additional award of €500 as compensation for the contravention. The important protections afforded by section 23 would be eroded if an employer could just fail to make the required contributions with a view that this was the extent of the amount the employee could recover.  Section 23 permits compensation of up to two years’ remuneration.

I find that the Respondent shall pay the Complainant the total amount of €1,601.16.

I decide that the complaint of a contravention of the Construction Sectoral Employment Order is well-founded and pursuant to section 23 of the Industrial Relations (Amendment) Act, the Respondent shall pay to the Complainant €1,601.16.

Union activity, unilateral change, SEO Construction Industry.