EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Mihail Levkovski - claimant UD1023/2010
MN999/2010
WT427/2010
against
McSweeney Building & Civil Engineering Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Ms M. Sweeney
Mr F. Dorgan
heard this claim at Limerick on 14th March 2012 and 6th February 2014
Representation:
Claimant: Ms. Faye Revington B.L. instructed by Mr. Michael Moroney,
Meehan Moroney, Solicitors, Roche House, 8 Bank Place, Limerick
Respondent: A director of the company
Summary of evidence:
The claim before the Tribunal was one of constructive dismissal. A Tribunal appointed interpreter was present at the hearing. The hearing on the 12th March 2012 was adjourned pending the outcome of Personal Injury proceedings.
The claimant commenced his employment with the respondent in March 2008. Initially the claimant worked on a site in Lisdoonvarna but he subsequently began living and working on a site in Moyross in May 2008 and it was from this time that the claimant alleged problems began.
In Lisdoonvarna, the claimant worked 8am to 6pm, Monday to Friday with some Saturday work. When the claimant began to live and work on the site in Moyross his role was to record all deliveries/vehicles entering the site. The claimant stated that 200 or 300 vehicles entered the site on a daily basis. The site was a landfill site on which construction was also taking place.
The claimant stated that he did not receive a contract of employment or payslips and nor did he receive holiday pay. He was not provided with protective equipment. The claimant was to receive a 15 minute break in the morning and a 20 minute lunch break. However, the claimant stated that he was in fact working 24 hours a day. In the winter he started the machines early and after 6pm he secured the site by closing windows and was on alert for persons trying to gain entry to the site. He investigated any noises he heard and he did prevent a number of incidents from occurring. While there was no work on the site at the weekends the claimant still could receive a call at any time that a vehicle needed access to the site and for that reason he was on the site all the time. During cross-examination it was put to the claimant that there were 103 days when he did not have to carry out any work on site due to poor weather conditions. The claimant replied that he was still required to carry out security work on site.
The claimant outlined the living facilities provided on site. He stated that at times the water on site froze and he did not have water. The bathroom facilities he had access to in the canteen were not cleaned. The caravan was damp and there was a gas pipe nearby to where the caravan was located on the site and there was vermin in the caravan. For the last three months of his employment the claimant felt constantly tired and did not sleep properly. He developed a fungal infection to his feet and another skin infection on his hands. During cross-examination the claimant confirmed that he had not checked or inspected the caravan prior to accepting it as his living quarters. He was immediately unhappy with the accommodation provided and it was his case that he complained about it to the director and was promised better conditions. He confirmed that a vermin eradication company visited the site at times. The claimant accepted that he had free electricity, water, gas and access to bathroom facilities and a canteen.
It was the claimant’s case that he sought time off work on 17th December 2009 to attend a doctor. When he returned to the site he showed the medical certificate to the director. The claimant did not intend to leave the employment permanently but intended to take sick leave. When he submitted the medical certificate he said the doctor had advised him to finish work immediately, as he was in bad condition and needed to have some treatment and tests. He did not ask for a P45 but later received one from the company but could not recall when he had received it.
The foreman on site gave evidence that when the claimant returned to the site that day he said he was leaving and that he no longer worked for the company. The foreman stated that the claimant had not complained to him about his living or working conditions during the employment despite having daily interaction. The caravan area was secured by a high fence with lights and gates in place. The site was closed for the winter but the claimant remained on the site and did not return to duties until March 2009.
There were site visits by the Health and Safety Authority and the Environmental Protection Agency and the site always passed these inspections. The claimant did not require personal protective equipment as he handled the paperwork for vehicles entering the site. He carried out some machine work but this was at his own request, as he wanted to gain experience. The foreman did not accept in cross-examination that the claimant worked seven days a week.
A director of the company gave evidence that an error in relation to the registration of the claimant’s employment was later rectified by the company. The claimant was free to refuse to live in the caravan but he had accepted it when he began work at the site. The director outlined the living facilities on site for the claimant and stated that he had not received any complaint from the claimant during the course of his employment. The claimant’s residing on site was deemed desirable by the company but the claimant was free to depart and live elsewhere if he wished and still continue to work for the company. The director refuted that the gas pipes carried gas at all times and stated that it was only during extraction.
On the 17th December the claimant initially told him that he needed to take two weeks off but later that day he informed the director that he was leaving the employment. The director believed this may have been related to an issue the claimant had with another individual.
A letter dated 22nd December 2009 issued from the claimant’s solicitor stating that the claimant had no alternative but to terminate his employment as he was physically unable to continue to endure the unhealthy conditions on site. The claimant returned to Poland for a period of ten months. He commenced new employment in November 2010.
Determination
This being a case of constructive dismissal the onus of proof rested with the claimant. Having considered the evidence of both parties in this case the Tribunal is not satisfied that the claimant was entitled to consider himself constructively dismissed from the employment. In particular the Tribunal considered the evidence in relation to the events of the 17th December 2009. The Tribunal found the claimant to be a less than credible witness and notes the evidence of the witnesses for the company in relation to the inspections carried out by the Health and Safety Authority and the Environmental Protection Agency.
As the claimant resigned from his employment a claim does not arise under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and is accordingly dismissed.
No evidence was adduced in relation to the any outstanding sum for annual leave owing to the claimant. The claim under the Organisation of Working Time Act, 1997 is therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)