Complainant

Respondent

Anonymised Parties

A Facility/ Cleaning Supervisor

A Cleaning and Facility Company

Representatives

  Self-Represented

Head of HR and Company Managers

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036157-001

14/05/2020

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

CA-00036157-002

14/05/2020

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

CA-00036157-003

14/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036157-004

14/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036157-005

14/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036157-006

14/05/2020

The issues in contention concern a Cleaning Supervisor and his alleged involuntary resignation from a Cleaning Company, on grounds of Disability Discrimination and following a series of Payment of Wages Issues. The employment originally commenced on the 20 October 1999 and following series of TUPE transfers between Cleaning Companies ended on the 31st May 2020

1:1       Opening Payment of Wages Act ,1991 complaint submitted to Oral Hearing - not on the WRC Complaint form received on the 14th May 2020.

In his opening statement the Complainant maintained strongly that he had been promised full wages for the period from his Investigation meeting on the 23rd January 2020 to the start of his new placement on the 10th March.

The promise had been made by Area Manager, Mr. XA, and had also included a Voluntary redundancy offer based on a ten-year service period.

The Wages payment for February up to the 10th March 2020 was never paid, and he was not interested in a Redundancy deal based on employment service far less than what he was entitled to.

Following discussions with the Parties I took the Non-Payment allegation as described above, to be a Payment of Wages Act, 1991, complaint.

1:2       Payment of Wages Act, 1991 – CA-00036157-001

The Complainant alleged that he was due the sum of €1,052 which should have been paid on the 31st of Jan 2020. This was approximately 2 weeks pay at €14.40 per hour and would have covered the weeks commencing on Monday the 20th Jan and Monday the 27th January. The Respondent had not paid these wages.

1:3      Payment of Wages Act, 1991 – CA-00036157-002

The Complainant accepted work on another Company site, Site D, in North County Dublin, on the 10th March 2020. His rate of Pay was €11.00 as opposed to his earlier Supervisor rate of €14.40.

The difference in his nett pay was approximately € 240 a forthright and the claimed figure of €280 represents approximately a two-week loss/differential.

1:4:       Payment of Wages Act, 1991 – CA-00036157-003

The Complainant was not paid due Fuel expenses incurred prior to his leaving Site A. He had receipts, but the Respondent had not paid.

1:5      Terms of Employment (Information) Act, 1994 - CA-00036157-004

The Complainant alleged that he had not been notified in writing of the change to his Terms and Conditions, specifically the Wages issue of dropping to €11.00 from €14.40, when he moved to Site D in March 2020.

1:6      Terms of Employment (Information) Act, 1994 - CA-00036157-005

The Complainant had asked the Respondent for a Copy of His Contract of Employment. This had not been supplied even though he has over 21 years’ service.

1:7       Employment Equality Act, 1998 - CA-00036157-006

The Complainant alleged that he had been Discriminated against on the Grounds of Disability and effectively “forced out” of the job by the entire process since the 23rd January 2020. He had informed by phone, Manager Ms. XB.  of his stress and anxiety issues. The Respondent had e mailed him on the 13t May 2020 threatening disciplinary action over his sick absences. The Respondent took no proper regard to his mental health.

2:1       Opening Payment of Wages Act ,1991 Complaint submitted to Oral Hearing - not on the WRC Complaint form received on the 14th May 2020.

The Respondent strongly denied this complaint on two grounds.

Firstly, the conversation with Area Manager Mr. XA, as described by the Complainant did not include any promises of “Full Pay” until a new Placement had taken place. At best it may have included a promise of full pay until the Disciplinary Hearing was over. It most certainly did not include a 10-year Service Redundancy offer. Mr. XA gave direct Oral evidence to the Hearing. A conversation with the Complainant had taken place but it was around the Site A issues and the Investigation/Disciplinary process.

 In Mr XA’s view the Complainant had been very stressed at the time of the phone call and had probably mistaken the offer of full pay to the Disciplinary stage as an offer of full pay until a new Placement was found. He had not offered any redundancy deal. This would have to have come from Head Office and he, as Area Manager, did not have that level of authority.

The Second Respondent Argument was that the only Authority in the Respondent Organisation to make either a Wages or a Severance offer was as at Head Office. The overall Head of HR, Mr XB, gave oral evidence that he had never been aware of the issue and had certainly never sanctioned any such offer.

In any event as the Respondent had made a number of job placement offers to the Complainant during February the question of Redundancy could never have arisen as a range of jobs were available.

2:2      Payment of Wages Act, 1991 – CA-00036157-001 – Pay at end of January 2020

The Respondent clarified that the Complainant had been paid 28 hours - to the 23 January – the date of the Investigation meeting which had recommended Disciplinary Action. No further pay was due other than Holidays etc which were sorted out later. A claim for week commencing the 27th January was not warranted as the Complainant was on unpaid suspension.

2:3      Payment of Wages Act, 1991 – CA-00036157-002 - Lost Differential

The Complainant accepted work on another Company site, Site D, in North County Dublin, on the 10th March 2020. His rate of Pay was €11.00 as opposed to his earlier Supervisor rate of €14.40.

The Respondent had offered two other Placement options, one of which would have continued the higher rate. The Complainant had declined these for Personal reasons and the North Dublin site job was then the only option available. It did not have a Supervisor requirement and the rate reflected this.

A claim for a lost differential was simply not sustainable. In time if a Supervisor option became available the Complainant could go to that placement. However, in Covid 19 times business was very slow and the North Dublin site was the best available at €11:00 per hour when the two other options were turned down.

2:4:       Payment of Wages Act, 1991 – CA-00036157-003 – Fuel Expenses

It was accepted that the Respondent method paying expenses was different to their predecessor before the TUPE transfer. Prior to the Hearing the Respondent had found two Complainant fuel receipts to the value of € 90 which would be paid.

Beyond this it was unclear what exactly the Complainant was seeking but if he could show appropriate receipts for fuel purchased it would be paid immediately.

A firm commitment was made to this effect at the Oral Hearing.

2:5        Terms of Employment (Information) Act, 1994 - CA-00036157-004 – Notification of change of Rate.

The Complainant had rejected two offers of placements that would have paid €14.40, the Site A rate. The Site D rate of €11:00 per hour had been communicated to him well in advance of moving to the site. If it was not in writing prior to the move it was clearly the subject of e mail traffic shortly afterwards.

The Complaint has no basis.

2:6        Terms of Employment (Information) Act, 1994 - CA-00036157-005 – Copies of Contracts

The Respondent provided a copy of the TUPE transfer Employment contract to the Complainant. Employment Contracts from earlier employers would have to be sought from them as the Respondent did not have copies of these.

The complaint against the Respondent has no legal basis.

2:7         Employment Equality Act, 1998 - CA-00036157-006 – Discrimination on Disability Grounds.

This was resolutely denied by the Respondents. The Complainant had never, at any stage, notified the Respondent of any disability nor had he sought any allowance or accommodation for a disability.

 In evidence it was established that GP Sick cert had been submitted dated the 5th of May, but the Complainant had resigned on the 7thof May.

The Respondent HR Manager pointed to the basic need in any Discrimination claim for even elementary facts to raise “An inference”

No facts were in evidence and the Complaint has to be seen as completely unwarranted and without foundation.

3:1      Opening Payment of Wages Act ,1991 Complaint submitted to Oral Hearing - not on the WRC Complaint form received on the 14th May 2020.

3:1:1     Background

The background to this entire case lies in an incident that took place on the 20th January 2020 on Site A. A serious physical altercation took place between the Complainant and a fellow Worker on Site A.

Irrespective of the rights/wrongs of the case the Owner of Site A – a major and prominent Irish Company in the locality – instructed, acting within their contractual rights, the Respondent Employer to permanently remove both the Complainant and the other Worker from Site A.

The Complainant was an employee of long service (since 1999).  An Investigation took place on the 23rd January and Disciplinary hearing on the 4th February 2020. The outcome, by letter of the 10th February 2020, was a First Written Warning but accompanied by an offer of alternative work on Site B of 21 hours allied to an additional 15 at Site C – a total of 36 hours all at a rate of €14.40 per hour. For a variety of personal reasons, the Complainant declined this offer but eventually on the 10th March took up work on Site D - North County Dublin. The Written Warning, by Agreement, was dropped by the Employer.

From the Oral and Written evidence, it was clear that the Respondent were happy to keep Complainant as an employee.  However, from the Oral evidence and demeanour of the Complainant at the Oral Hearing it was clear that the loss of his long-standing position as a Supervisor on Site A was a very sore point which still rankled. The lesser rate of pay on Site D was a further and considerable irritant.

The Complainant very robustly argued that the Areal Manager, Mr XA, had promised him “full wages” until he was “fixed up again”. This was his PoW Act claim. In addition, he claimed that the Area Manager had made a Voluntary redundancy offer based on 10 years’ service to him.

The Area Manager gave directly contradictory Oral evidence which the Complainant most robustly disputed. The Area Manager agreed in questioning that he did not have the level of Authority to make this promise. On Adjudication Officer questioning he denied that he might have tried to do a “local deal” and seek Head Office sanction afterwards if the “deal” had been acceptable to all sides. 

The Senior Head of HR, Mr. XB, who had the requisite authority, stated that he had never been approached to sanction any local deal and even if this had happened, he could not have agreed a redundancy as plenty of work was available for the Complainant.

3:1:2       Conclusion on Opening PoW Act,1991 complaint.

A careful consideration of evidence was required here. The Oral evidence of the Complainant was passionate that he had been given a promise. The Respondent replies were professional and well-presented but completely contrary. The evidence of Mr XB, the Head of HR, was persuasive. The Respondent Company had a well-developed HR System. The procedural paperwork in this case was professional. The clear authority and decision-making system was evident. The Area Manager did not have the Authority to make a Wages or Redundancy offer as alleged by the Complainant.

In final conclusion I found that there was a degree of confusion on the Complainant’s part over the Area Manager’s commitment to full pay “until the Process was completed”.

From the evidence I found no basis that this normal Investigation/Disciplinary payment offer was meant to extend to the entire period until the 10th March as claimed by the Complainant.

On the balance of all probabilities, I could not find evidence to support the suggestion that a Wage promise to the 10th of March or a specific Redundancy offer had been made in the way described by the Complainant.

This Complaint is Not Well founded.

3:2     Payment of Wages Act, 1991 – CA-00036157-001 – Pay at end of January 2020

The Complainant had effectively claimed two weeks wages -week commencing the 20th and week commencing the 27th of January. It appeared he had been paid to the 23rd - the date of the Investigation.

As referenced above in 3:1:1 and 3:1:2 there was considerable conflict of evidence regrading a discussion with the Area Manager Mr. XA, regarding payment of Wages while the Investigation/Disciplinary process was ongoing.

The evidence of the Complainant was very strongly presented, and the Area Manager agreed that the conversation had taken place but had a different emphasis. No one seemed quite sure what payment until the end of the process actually had meant.

On balance I came to the view that the only reasonable interpretation was to the date of the Disciplinary Hearing on Tuesday the 4th February.

Accordingly, I direct that the Complainant be paid wages for the days (8) between the 23rd of January and the 4th February 2020. At a daily rate of €11.40 x 7-hour day X 8 days this equates to €638.40

The Complaint is deemed to be Well Founded

3:3      Payment of Wages Act, 1991 – CA-00036157-002 - Lost Differential

There was no doubt that the rate for Site D – the North Dublin site, was € 11:00. It was not a Supervisory role.

The claim for lost differential with Site A where the Complaint was a supervisor is not supported by any evidence of a promise or commitment from the Respondent to a Site D rate of €11.40.

Accordingly, the complaint is not Well Founded.

3:4:       Payment of Wages Act, 1991 – CA-00036157-003 – Fuel Expenses

The Respondent undertook at the Hearing to pay all legitimate Fuel expenses when receipts were presented.

I direct, for the record that all Fuel Expenses, properly supported by receipts, be paid.

Technically the Complaint is Well Founded as expenses were still outstanding.

3:5        Terms of Employment (Information) Act, 1994 - CA-00036157-004 – Written Notification of change of Wage Rate.

This specifically concerns the rate at Site D – North Dublin. I was in no doubt that the rate was well known verbally. However, as no evidence of a written statement was produced the Complaint is technically Well Founded.

Under Section 7 of the Terms of Employment (Information) Act, 1994I direct that Compensation       of € 50 be paid to the Complainant.

This is Compensation for Breach of a Statutory Right and has no Renumeration/Wage element.

3:6        Terms of Employment (Information) Act, 1994 - CA-00036157-005 – Copies of Contracts

I was satisfied that all relevant Contracts had been provided to the Complainant. Contracts from earlier employers would have to come from them and not the current employer.

The Complaint is Not Well Founded.

3:7         Employment Equality Act, 1998 - CA-00036157-006 – Discrimination on Disability Grounds.

The relevant Law here is the Employment Equality Act, 1998.

Section 85A of the Act sets out the Burden of Proof requirements – in plain English a claim has to have a basic foundation in facts to support even a preliminary “Inference” a Complaint of Discrimination.

In addition, in a Disability Claim the Complainant has to establish a “Disability”.

No evidence was presented on any of these requirements. Again, in plain English no prima facie basis was presented to support the claim.

Accordingly, the complaint has to be deemed Not Well Founded.

Payment of Wages, Employer “Wage Promise”, Payment of Fuel expenses, Information of changes to Terms and Conditions, Information on Contracts of Employment, Disability Discrimination.