Judge says company 'acted deceitfully' after worker's death

A High Court judge has stated that a construction company acted in a deceitful and fraudulent manner in its handling of a claim for a death-in-service benefit payment from the family of an employee who died in 2005.

Star Homes (Midleton) Ltd had brought a legal challenge aimed at quashing a determination of the Pension Ombudsman that the company pay €69,000 to the dependents of the late Pawel Szeefs because it was not given an oral hearing so that it could resolve certain facts that were in dispute.

The company also sought a declaration that the Ombudsman's decision was a breach of natural justice, was perverse and flies in the face of reason. Opposing the action the Ombudsman claimed that it had acted within its discretion and that Star was not entitled to the orders it sought.

In dismissing the company's application today Mr Justice John Hedigan found that the Ombudsman decision to refuse to grant Star Homes and oral hearing "was well within the bounds of reasonableness".

The judge also stated that Star Homes, Unit 20 Main Street, Midleton Co Cork "acted fraudulently" by failing to honour its obligation to the family of Pawel Szeefs. He worked company from June 2004 until his death as a result of an accident on November 19, 2005.

Star, the judge held, "made no attempt to meet its moral, whatever about its legal, obligations" to Mr Szeefs' widow Anna, who was a notice party to the action, and their two children.

Last March, the Ombudsman determined that Mr Szeefs, from Poland was an employee at the time of his death and directed the the company to pay Mrs Szeefs €69,850. She had made a complaint to the Ombudsman in 2008 after the Construction Workers Pension Scheme refused to pay a death-in-service benefit.

In order to be entitled to such a benefit, 26 payments must be made to the scheme. However Star, who had registered Mr Szeefs to the scheme, made a total of 20 payments to the scheme subsequent to his death.

The company claimed that Anna Szeefs was not entitled to the payment because her late husband was not an employee at the time of his death.

In his judgement Mr Justice Hedigan said that Star's "untruthful account" of Mr Szeefs' employment history with the firm, its "contradictory accounts of the alleged termination of Mr Szeefs' employment" plus "the clear fact that Star had made no contributions under the REA" made it entirely reasonable that the Ombudsman should decline to hold an oral hearing.

He said that company was obliged under a Registered Employment Agreement (REA) to contribute €36.35 per week on Mr Szeefs behalf. However they made no payments on his behalf, which resulted in his family being left without the death benefit of €69,850 which they were entitled to.

The deceit involved commenced with the company's payments of these contributions after his death. The number of payments made by the company clearly suggested that Mr Szeefs had only worked for them since June 2005.

The deceit, the judge added, continued with the way the firm dealt with the Ombudsman, when it informed that office that Mr Szeefs had worked with them as a subcontractor.

Star Homes acknowledged that Mr Szeefs was their employee, and not a subcontractor, when social welfare records revealed it had paid PRSI employee contributions in relation to Mr Szeefs since June 2004.

The judge said that Star Homes also claimed that Mr Szeefs employment was terminated the week before he died. However it later indicated that he resigned the day before he died. The judge said that no explanation had been offered to the court for Star's "contradictory accounts" in this regard.

The judge added that Star had offered "a most bizarre, contradictory and not credible account" to explain their claim that a P45 dated November 22 was handed to Mr Szeefs on November 18, 2005.

The judge said that there appeared to be two versions of the P45, each of which contained different information and that the company's failure to give an explanation of the inconsistencies in the P45s at an oral hearing was enough to disentitle Star to any orders from the court.