Complainant

Respondent

Parties

Gary  Ó Nualláin

The Afred Beit Foundation

Complainant

Respondent

Anonymised Parties

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Representatives

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-00058018-001

01/08/2023

The Complainant interviewed for the first time on the 29th June 2023. He met with Ms. Gallagher, Ms. Robbins and Ms. Barry. He was asked by Ms Gallagher why he had decided to take a step down for this role. He said that liked the area and the role sounded a good fit for him. He had a second interview on 19th July. In that interview he was to pitch an event to a corporate sponsor. It had been mentioned to him in the past that the Easter Egg hunt had been very successful. He expanded on that idea and pitch that to the team. At 5.30 pm that day he got a called from Ms. Robbins and she informed him that he was successful and that the letter of offer would follow. He received the letter of offer on 21st July. He was not happy with the salary that was stated. The original offer was €46,500. That was the bottom of the scale that was advertised. He went back to Ms. Gallagher about the salary. He did not email Ms Robbins or Ms Barry on that email. There was a bit of back and forth from Ms Gallagher and himself. On the 24th July he received a counter offer of  €47,500.00 with an increase in January to €50,000.00. They had some concerns about his experience in tourism and they explained to him that that was why he would start on the lower salary. The salary would increase, if he did well during his probationary period. On Friday 30th June he had an interview with a different firm. He was offered that job on that day with the 3rd party firm. He was applying for a mortgage at the time and thought that a more solid permanent role would look better for his mortgage application.

In relation to his offer from the Respondent, Ms. Robbins was going on annual leave at the end of July. They wanted him to start before she went on her break. He said he needed to just have a call with the 3rd party company before he could give a start date. It took him some time to get the individual he needed to talk to on the phone. That was the 26th July. On the 26th he sent two emails. The first was to Ms Gallagher it stated “Following a phone call with Jill after the last email, I've been trying to get a meeting with the other agency in question for the past few days, but their senior management have been on site on a gig. I told Jill that I would let her know with 100% certainty this week what I decide on.

I have this call with the other agency later this morning. They stated they were happy to wait 3 weeks after their offer for me to complete the interview process with Russborough to ensure that I was making the right long-term choice. I want to do them the courtesy of having one last conversation with them before making my decision, given their patience.

I appreciate that you are looking for someone to start straight away and are looking to do a hand over with Jill this week before she moves house next week. I have no notice period so could start immediately. I just felt this agency have been very patient with me, and I'd like to show the same courtesy. I'll let you know my decision today or at the very latest first thing tomorrow morning. Kindest Regards, Gary”

 Then later on the 26th he wrote via email to Ms. Robbins stating “  Firstly, I would like to thank you for your patience this past week. I realise that this has been a long process with the 5 weeks of interviewing and then the past week on top of that. I'll be honest with you, I've never been in the position before where multiple companies have offered me roles at the same time. I have never had to navigate that before and wanted to be fair to everyone and respectful of their time. I had my initial Russborough interview on last Thursday and then the interview with the agency in Dublin the following day. I was offered the job in the agency the same Friday.

The hiring manager in there was very fair to me and was happy to wait the 3 weeks until I was finished the interview process with Russborough to ensure that I was sure that I was making the right long-term choice as I wanted where I chose to be where I stay for at least the next 3 to 5 years while I try and get a mortgage sorted.

My acceptance is based on the salary you offered on Monday of €47,500 now, raising to €50,000 in January 2024, barring any disasters in the probation.

The only other two things, I would like a work phone and a separate number. I'm not fussy with the handset. Just something Android. I'd be happy to take one of the free handset options off the phone plan. I use a OnePlus handset for my personal phone, so if they have any phones on your plan that will be perfect. I'd be using my own laptop so won't need a computer.

The second is that I have no problem being based in Russborough House but I would like the option to WFH on days when I'm not needed in person for meetings, events, etc please.

The final thing I'd say is more of a request. I would like to be able to use the title head of events externally (on my LinkedIn) that is with full recognition that this is not a senior management role and I would still be reporting to the senior management team of the foundation yourself included. It is more just to recognise that I will be heading up event side of things and is strictly titular”

The Respondent asked to meet the complainant to discuss some concern they had. They agreed to meet the next day. They did meet the next day. He was told that the team were unhappy because they felt he had under minded Ms. Robbins by excluding her from the email thread.  He explained why he had done that and that no disrespect was intended. He just replied to the person who made the offer. They outlined some other concerns. He had used the term “low balled” and they felt that might be an issue going forward. If he felt under-valued it could lead to resentment. Then at the end of the meeting they stated that they were rescinding the offer.

The Complainant stated that he was never told that he had to reply by the end of business on the 25th. The Complainant alleges that as a result of how the Respondent treated him he was out of pocket. He is seeking is notice payment for termination of his contract.    

The letter of offer was sent after the 1st interview on the 19th July. That letter of offer was subject the reference checks. At that point they would have had contract negotiations if all that worked out. He was not happy with the terms in the letter of offer. There was a lot of back and forth because there was some confusion. He thought the job was the head of event role and the salary was €55,000.00. Ms. Gallagher clarified all of that in correspondence. On Monday 24th July Ms. Robbins called him to discuss everything. She stated that they needed a decision by close of business on the 25th. On the 26th they had not heard anything. That morning they wrote and stated that because they hadn’t heard from him, they were moving to the next candidate. Then later that day they got his email as was read out earlier. He accepted the offer after the closing date. There were many items set out in that letter of acceptance however it was subject to it being “acceptable to you”. They were not. At that point the Respondent had moved onto the next candidate. He was invited into the Respondent business so that he could be told in face to face that they were not offering him the role.

The salary was pitched at the level it was, because, his skill set wasn’t an exact match but he was experienced so it was decided that he could start at a lower salary and then if all went well he could move to the increased salary. However, the offer was not accepted within the specified time and even when he came back with an acceptance, albeit late, it included further demands.

In making my decision, I want to clarify that while only a short summary of the evidence is included above, I have carefully reviewed all of the documentation submitted. This comprehensive review ensures that all relevant information and perspectives have been considered in reaching a fair and informed conclusion. Although the decision summary provides a concise overview, the entirety of the documentation as been examined in conjunction with the oral evidence given at the hearing.

The Complainant alleges that he is owed his notice period following the Respondent’s termination of his employment at the commencement of that employment. The Respondent contests the allegation stating that the Complainant was never an employee of theirs.

Having carefully considered the evidence of the parties together with the documentation submitted I am satisfied that the Complainant was never in fact an employee of the Respondent. The Respondent did offer the Complainant the role however the Complainant was not happy with the salary or job title. There was a lot of correspondence between the parties in relation to the matter. Furthermore, the Complainant asked the Respondent for time before he gave them his final decision because he had interviewed for a different role with a third party. Even after the third party was removed from the equation he continued to negotiate in relation to the use of a mobile phone, working from home arrangements and the title of the role. It is clear that the parties had not finalised those negotiation when the Respondent decided to move on to the next candidate. Harsh as that may be, the Respondent is entitled to explore different candidates for the role.  

Section 5 (1) Payment of Wages Act states “An Employer shall not make a deduction from the wages of an employee”. The most basic requirement under this section is that there is an Employer/ Employee relationship. As I have found that there was no such relationship between the parties therefore the complaint must fail.

I find that the complaint is not well founded and accordingly fails. 

The Complaint fails.