Complainant

Respondent

Parties

Colin  Sheehan

Classic Building Solutions Ltd

Representatives

Self-Represented

Mr Shane Linehan MD

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-00075055-001

01/09/2025

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

CA-00075055-003

01/09/2025

The Complainant brings two complaints before the Workplace Relations Commission, namely under the Payment of Wages Act 1991(“the 1991 Act”) and the Terms of Employment (Information) Act 1994 (“the 1994 Act”).

In respect of the wage’s complaint, the Complainant contends that, during the recruitment process, he indicated that he expected to earn €22 per hour (amended on consent to €21 per hour). He states that the Respondent indicated this rate could be achieved following completion of probation, subject to satisfactory performance. He accepted employment at €19 per hour on that basis and submits that he had a reasonable expectation, amounting to a contractual entitlement, to an increase to €21 per hour. He alleges that the failure to implement this increase constitutes an unlawful deduction of wages under the Payment of Wages Act 1991 (“the 1991 Act”).

The Respondent denies that any agreement was reached to increase the Complainant’s rate of pay to €21 per hour. It maintains that the Complainant’s contractual rate remained €19 per hour, with a six-month probationary period, and that any discussions regarding pay progression were conditional and non-binding. The Respondent further submits that higher rates of pay were linked to more senior roles and that no such entitlement arose in the Complainant’s case.

In relation to the complaint of penalisation, the Complainant asserts that, following his raising of concerns regarding pay and working arrangements, he was subjected to adverse treatment. This included the withdrawal of expected benefits, including the loss of a fuel card, and changes to his work location. He also cited the issuing of a verbal warning. He contends that these actions amount to penalisation within the meaning of the 1994 Act.

The Respondent denies that any penalisation occurred. It submits that the Complainant was provided with a written statement of terms and conditions in compliance with the 1994 Act and that the matters raised do not fall within the scope of penalisation under that legislation.

The Complainant gave sworn evidence that he commenced employment with the Respondent as a window fitter at a rate of €19 per hour. He stated that, during the recruitment process, he indicated that he expected to earn €22 per hour (this was later amended, on consent, to €21 per hour, the top rate payable by the Respondent). He said he was informed that, while he did not initially meet the criteria for that rate, his pay could be increased to €21 per hour following completion of probation, subject to satisfactory performance. On that basis, he accepted the role.

The Complainant outlined that he understood his probationary period to be three months, based on discussions with a site supervisor, and that he expected his pay to increase thereafter. He stated that he raised the issue of pay on multiple occasions during his employment, including through his supervisor, who indicated that the increase would be forthcoming. However, following a direct discussion with the Respondent, he was informed that the company could not afford to increase his pay and that no such increase would be implemented.

In relation to the alleged penalisation, the Complainant stated that, after raising concerns regarding his pay and working arrangements, his treatment at work changed. He gave evidence that an expected fuel card was taken back and  that he was reassigned to different sites.

He further gave evidence that he received what he believed to be a  verbal  warning in respect of phone usage on site. When he later sought a written copy of this warning for his records, he was informed that it was not, in fact, a formal warning. He stated that this added to his concern regarding the manner in which he was being treated.

The Complainant also referred to a meeting which was arranged at short notice without a clear explanation in advance, which he said contributed to his perception that matters had deteriorated following his attempts to address pay-related issues.

Complainant’s Argument.

The Complainant submits that there was an agreement, or alternatively a representation giving rise to a contractual entitlement, that his hourly rate would increase to €21 following completion of probation, subject to satisfactory performance. He contends that he fulfilled his role and that the failure to implement this increase amounts to an unlawful deduction of wages within the meaning of the 1991 Act.  

He further submits that the representations made during the recruitment process, together with subsequent assurances from his supervisor, constitute binding terms of his employment or, at a minimum, give rise to a legitimate expectation that the increased rate would be applied.

In respect of the complaint under the 1994 Act, the Complainant submits that he was subjected to penalisation for raising concerns regarding his pay and conditions of employment. He contends that the withdrawal of expected benefits, changes to his working arrangements, and the issuing of a verbal warning amount to adverse treatment linked to his attempts to assert his entitlements.

The Complainant maintains that these actions fall within the definition of penalisation under the 1994 Act and that he is entitled to redress accordingly.

Mr Shane Linehan, Managing Director of the Respondent, gave sworn evidence that the Complainant was employed at an agreed rate of €19 per hour, which reflected his level of experience and the applicable rate for the role at that time. He stated that the Complainant’s contract provided for a six-month probationary period and denied that any binding agreement was made to increase the Complainant’s pay to €21 per hour the top rate payable to window fitters.

Mr Linehan accepted that, during recruitment discussions, it may have been indicated that pay could be reviewed following probation. However, he maintained that any such discussion was general in nature and conditional, and did not constitute a commitment to a specific rate. He further stated that no employee in the Complainant’s position carrying out the same work  was earning €21 per hour at the relevant time, and that higher rates were reserved for more senior or skilled roles.

He outlined that the Respondent operated a structured pay system, with different hourly rates depending on skill level, including lower rates for less experienced workers and higher rates for lead fitters. He stated that progression to higher rates depended on skill and experience, and was not automatic upon completion of probation.

In relation to the matters raised by the Complainant concerning alleged penalisation, Mr Linehan denied that any adverse treatment occurred. He stated that operational decisions, including site assignments and allocation of resources such as fuel allowances, were made in accordance with business requirements and were not linked to any complaint made by the Complainant.

Mr Dennis Connolly also gave evidence on behalf of the Respondent. He outlined the general structure of roles within the company and the differing skill levels required. He stated that employees performing more specialised or commercial work would command higher rates due to their experience and expertise.

Mr Connolly confirmed that decisions regarding staffing and allocation of work were based on business needs, and the relative skill sets of employees. He did not accept that the Complainant was treated adversely and stated that there was no link between any issues raised by the Complainant and the management decisions made during his employment.

The Respondent submits that the Complainant was paid in full in accordance with his contract of employment and that no unlawful deduction of wages occurred. It contends that the Complainant’s agreed rate of pay was €19 per hour and that no contractual entitlement arose to a higher rate.

The Respondent argues that any discussions regarding a potential increase in pay were conditional and subject to review and did not give rise to a binding agreement. It further submits that, in the absence of a clear contractual entitlement, the Complainant cannot establish that any wages were properly payable and unlawfully withheld.

In relation to the complaint under the 1994 Act, the Respondent submits that the Complainant was furnished with a written statement of his terms and conditions of employment in compliance with the Act. It submits that any changes  were routine operational matters and that no penalisation occurred.

CA-00075055-001 Payment of Wages.

The Complainant fundamentally argued that he was promised a pay rise from €19 per hour to €21 euro per hour at the completion of his probation period which he believed to be after three months. Outside of the Respondent’s contention that the contractual period for all employees as per contract is six months, submitted   that no such entitlement arose. The Respondent argued  that the Complainant’s agreed contractual rate was €19 per hour, as reflected in his contract of employment, and that any reference to a potential increase was conditional and subject to review. It maintains that no agreement was reached to increase the Complainant’s pay to €22 per hour and that he was paid in full in accordance with his contractual terms.

The applicable provision of the 1991 Act dealing with wages “properly payable”  can be found at section 6, where it states:

Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The applicable legal test under section 6 of the Act is whether the wages paid were less than the wages “properly payable” to the employee. In order to succeed, the Complainant must establish that the higher rate of €21 per hour was properly payable to him, arising from a contractual entitlement.

Having carefully considered the evidence, I am satisfied that the Complainant was initially engaged at a rate of €19 per hour and that this rate was expressly provided for in his written contract of employment. While I accept that there were discussions at interview stage to the effect that pay could be reviewed following probation, I find that these discussions were general and aspirational in nature.

I note in particular that the Complainant’s evidence was that the increase to €21 per hour was contingent on his performance and the Respondent’s ability to support such an increase. I further note the Respondent’s evidence that pay reviews were not automatic and that higher rates were linked to skill level and business requirements. Uncontested documentary evidence was exhibited by the Respondent showing a falloff in revenue in the sector where the Complainant worked

In this context, I am not satisfied that there was any concluded agreement between the parties that the Complainant would be paid €21 per hour from any specified date. At most, the evidence establishes that the Complainant had a legitimate expectation that his pay might be reviewed and potentially increased. However, a legitimate expectation does not equate to a binding contractual term.

The Act is concerned with wages that are “properly payable”, which must derive from an agreed contractual entitlement, whether express or implied. In the absence of such an agreement, there can be no finding that wages were improperly withheld.

I also note that the Complainant did not receive confirmation, either in writing or orally from the Respondent directly, that his rate had been increased, nor was there evidence of any variation to his contractual terms. The representations relied upon were conditional and lacked the certainty required to give rise to an enforceable contractual obligation.

Accordingly, I find that the Complainant has not established that the rate of €21 per hour was properly payable to him within the meaning of the 1991 Act. It follows that no unlawful deduction of wages occurred. For these reasons, I decide the complaint under the 1991 Act was not well founded.

CA-00075055-003 Penalisation- Terms of Employment (Information) Act 1994 (“the 1994 Act”).

The Complainant contends that he was subjected to penalisation contrary to section 6C of the Terms of Employment (Information) Act 1994. He asserts that, following his raising of concerns regarding pay and working arrangements, he experienced adverse treatment including the withdrawal of an fuel card benefit, reassignment to different work locations and the issuing of a warning.

The Respondent denies that any penalisation occurred and submits that the Complainant was provided with a written statement of his terms and conditions of employment in compliance with the Act. It contends that the matters relied upon by the Complainant relate to operational decisions.

Section 6(c) provides in its relevant part:

(1) An employer shall not penalise or threaten penalisation of a employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

Section 6C of the Act provides protection against penalisation where an employee invokes a right conferred by the Act, opposes an unlawful act under the Act, or gives evidence in proceedings under the Act. The Act is concerned with ensuring that employees are furnished with clear and accurate information regarding their terms and conditions of employment.

In the present case, I note that the Complainant accepted in evidence that he received a written contract of employment setting out his terms and conditions. There was no suggestion that he was denied such a statement or that he invoked any right under the Act to obtain or clarify the particulars of his employment.

The substance of the Complainant’s complaint relates to his dissatisfaction with the Respondent’s failure to increase his rate of pay and the manner in which related discussions were handled. While I accept that the matters identified by the Complainant may have been of concern to him, they arise in the context of an ongoing dispute regarding remuneration. Critically, there is no evidence that the Complainant invoked any right conferred by the 1994 Act, nor that he opposed any act made unlawful by that Act. The statutory protection under section 6C is specific and limited in scope. It is designed to protect employees who seek to vindicate their entitlement to receive a written statement of their terms and conditions, or to challenge deficiencies in such information. No such deficiencies in the written contract were exhibited by the Complainant. It does not extend to providing a general protection in respect of disputes concerning pay progression or wage increases. In that regard, the Complainant’s reliance on section 6C is misconceived. The Act does not create a protective framework for employees engaging in negotiations or disputes concerning remuneration, as outlined in the previous complaint, where no issue arises as to the provision of statutory information.

Even if I were to accept that the matters complained of could constitute “penalisation” within the broad definition set out in section 6C(5), the essential precondition remains that such treatment must arise as a consequence of the employee invoking a right under the Act. That causal link has not been established on the evidence before me. In consideration of the foregoing, I find that the Complainant has not brought himself within the scope of section 6C of the Terms of Employment (Information) Act 1994. For these reasons, I decide the complaint of penalisation was not well founded.

CA-00075055-001: For the reasons outlined above, I find the complaint was not well founded.

CA-00075055-003: For the reasons outlined above, I find the complaint was not well founded.

Payment of Wages Act 1991. Penalisation under the Terms of Employment (Information) Act 1994