Complainant

Respondent

Anonymised Parties

A Traffic Flagman

A Civil Engineering Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act

CA-00009949-001

28/02/2017

The complainant commenced work on 18th September 2015 initially as a Flagman at a rate of €12.00 per hour. He alleged that he injured himself at work and was deemed unfit for work owing to this injury and that the respondent terminated his employment.

The respondent confirmed that the complainant had commenced work as a Flagman Traffic Control on 18th September 2015 and received a contract of employment and handbook and that the complainant was a good worker. He was engaged to work on a road realignment project and he worked on average 45 hours per week. Of the approximate 30 employees engaged around that time, only the complainant and one other employee were retained when the project came to an end.   There was no work available for the complainant as a Flagman so he was offered employment on a different project that did not require traffic management. In or around August 2016 he expressed his unhappiness with the new role and outlined his preference for the old role. The company had arranged for him to be trained on a site dumper course but he was unsuccessful in passing that course.

On the 5th and 6th September 2016 the complainant requested and was given annual leave and never mentioned that he was having an MRI scan of his back.   The respondent notes that he claims on the Injuries Board Application form, which they received in March 2017 that his injury occurred on 12th September 2016 which they disputed.   They also advised that they take health and safety seriously.

They first became aware of issues with the complainant’s back on 14th September 2016 when they received a letter from the complainant’s gp. They detailed that they told the complainant to ease off work when they first became aware of his back issues. They highlighted that this letter mentions that he has the injury “x months” (sic), and highlighted that this suggests that the issue had been there for an extended period.   They received a letter from the complainant dated October 12th expressing his unhappiness with the termination of his employment by the respondent.

Evidence from Mr A, Contracts Manager, was that he invited the complainant into a meeting to discuss the complainant’s letter of 12th October but that the complainant refused to do so. While they have sympathy for the complainant they cannot accept that his back pain is owing to a work-related injury. They disputed that the complainant was dismissed advising that there was a job available for him. They confirmed that while the P45 was dated 12 September they could not recall when the P45 was actually issued to the complainant and accepted that he had over 12 months’ service when all factors were taken into consideration including his annual leave.

Following the hearing, the respondent was provided with a copy of correspondence received from the complainant dated 3rd January 2018 and were given 5 days in which to reply. They replied expressing their dissatisfaction with what they regarded as the complainant’s additional submission, They were advised that it was a matter for themselves to reply if they wish and were given an additional 5 more days in which to reply and they did not reply.

The complainant was happy to proceed unrepresented. The complainant commenced employment on 18th September 2015. He alleges that around May 2016 he hurt himself while at work but did not tell anybody. He went to see his doctor on 6th September 2016 who arranged an MRI which disclosed on 12th September 106 that he had a herniated disc.

He details that he did not tell the respondent of his injury until around 12th September when he told his supervisor Mr A that he had pain and was going to the doctor. He did not return to work. A letter issued from his GP dated 14th September 2016 details that he “has a herniated disc in his back x months” and that he would be fit for “traffic management or transport materials but is in terrible pain if he lifts any significant weight etc. I hope you can facilitate a role for him with this in mind”.

He details that this letter confirmed that he was fit for work but was unfit for any heavy machinery work and that his employer failed to keep him updated on efforts to look into alternative work and that his employer issued him his P45 with a date of 12th September 2016 on it but it was a few weeks later before he received it albeit he was unclear when he actually received it.

He wrote to the respondent on 12th October 2016 detailing a conversation he had with the CEO of the company Mr B and that he had been told by Mr B that there was no work for him and his P45 would be sent. He detailed that the respondent text him on 13th October asking to meet him but that he replied saying “before I come to the office I would like to get an answer by writing” as he wanted to see an official response to his letter.

Thisreply dated 19th October detailed holidays and monies paid to date and that the respondent “had no role suitable in the company”. He confirmed that he is pursuing a case through PIAB in relation to his alleged injury at work. He replied by email to this letter on 9th November 21016 expressing his unhappiness that the organisation had not made any effort to look for any other role for him.

He is not currently working and has not made any effort to secure alternative employment as he is awaiting his PIAB case.

Following the hearing, on 3rd January 2018, the complainant forwarded additional correspondence which included copy of emails between the complainant and respondent.

This case was originally scheduled for 23rd June 2017 but was rescheduled to 8th September 2017 with a second date allocated for 24th November 2017.

In the first instance, it was accepted at the outset by the respondent that the complainant had the required 12 months’ service, however, the issue of dismissal was in dispute.

Section 1 of the Unfair Dismissals Act 1997 provides that:  

"dismissal", in relation to an   employee, means—

(a) the termination by his   employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

With dismissal disputed in this case it is thus a matter for the Complainant to establish that he has been dismissed by the Respondent. The respondent, on the one hand, gave evidence that there was no termination, that they were looking for a suitable role for the complainant and that there was a job available for the complainant. The complainant, on the other hand, gave evidence that he submitted a cert from the doctor, that hecalled to the company a few times regarding alternative work, that the respondent refused to engage with him and, that they told him he had no job and sent him his P45 all of which amounted to dismissal.

Taking into consideration the fact that the evidence of Mr A, for the respondent, was that the complainant was a good employee whom he did not wish to lose, I find it noteworthy that upon receipt of the complainant’s letter of 12th October that the respondent’s response is somewhat ambiguous. It might have been expected that if there was no dismissal, which the respondent details, that the respondent’s letter would have been one expressing complete surprise at the complainant’s suggestion of dismissal. However, the letter details “we note that your doctor advised us what works that you were to do” and “we had no roles to facilitate this” andalbeit this appears to be somewhat contradicted later in the letter where it details “your position is still available as an employee”, and an offer made to meet with the complainant to discuss this further, I note the reference in the past tense to the employee “we have regarded you as a valued employee” (my italics) and thus I find it was not unreasonable for the complainant to be of the view that his employment had been terminated. At the very least, there was ambiguity about his employment status, taking into account language difficulties, it is clear that the complainant believed that the respondent had terminated his employment and the respondent did not sufficiently correct that misunderstanding.   A P45 had also been issued at an unknown date, albeit dated 12th September 2017 and while it is well-established that the date on the P45 is not determinative of the date of dismissal as held by the Labour Court in National University of Ireland Maynooth -v- Ann Buckley FTD 1015, it was never detailed in any correspondence that the complainant had sought out his P45. Having considered the totality of evidence in this case, I am satisfied that, whether it was intentional or not, the complainant's employment was brought to an end by the respondent.

Having established that there was a dismissal, I will next look to establish whether such a dismissal was fair.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall   be deemed, for the purposes of this Act, to be an unfair dismissal unless,   having regard to all the circumstances, there were substantial grounds   justifying the dismissal.…

(4) Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

(a) the capability, competence   or qualifications of the employee for performing work of the kind which he   was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the   employee, and

(d) the employee being unable   to work or continue to work in the position which he held without   contravention (by him or by his employer) of a duty or restriction imposed by   or under any statute or instrument made under statute.

(6)   In determining for the purposes of this Act, whether the dismissal of an   employee was an unfair dismissal or not, it shall be for the employer to show   that the dismissal resulted wholly or mainly from one or more of the matters   specified in subsection (4) of this section or that there were substantial   grounds justifying the dismissal.

The complainant had a good working relationship with the respondent, such that he was maintained in employment after the project for which he was engaged for ceased. He advised that he did not disclose the reason for seeking annual leave on 5th or 6th September 2016, nor, as was accepted by the respondent, was he obliged to. He also did not inform the complainant of the alleged injury which he had allegedly sustained in May 2016. When certified unfit for work, the complainant remained out of work as it was his understanding that the respondent was looking for other work for him. There was very little contact from the respondent in that regards. The respondent details that they looked for alternative work but there was none available, however, I note that they offered no evidence of what roles they reviewed with regard to suitability. They also confirmed that they did not engage with the complainant or his gp with regard to what roles they were reviewing for him as would have been expected. It would appear that the respondent decided therefore to terminate the complainant’s employment without affording him any due process with regard to dismissal and depriving him of the principles of natural justice.  

The respondent objected to additional correspondence received from the complainant after the hearing, which was copied to the respondent and which he was given an opportunity to respond to.   This objection is noted however, the correspondence does not provide any additional information, relevant to the claim, that was not provided during the hearing. Therefore, having considered the written and oral submissions of the parties, and for the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded and relevant to the instant case where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) sets out the factors to be considered when determining the level of compensation and of most relevance to this case are the measures adopted to mitigate losses

While I note that the respondent detailed that the complainant was never dismissed and that there is work available for the complainant and that the complainant expressed a preference for compensation, taking all the circumstances into consideration, I find that compensation is more appropriate.

With regards to efforts to mitigate his loss, the complainant has detailed that he is fit for work but has advised that he made no effort to seek any work and indeed was insistent that he did not want to secure a role that might impact his injury claim. I find this an extraordinary admission and one which clearly does not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

The complainant details his rate of pay as €12 per hour and it was agreed that he worked approximately 45 hours per week. While I award the complainant 28 week’s compensation which would amount to an award of €15,120, I find that the Complainant by his actions including refusing to attend the offer of a meeting and his refusal and failure to mitigate his loss in any way, has contributed to his dismissal and future loss by 60%. Therefore, taking all that into consideration, I direct the Respondent to pay the Complainant the sum of €6,048.

I find that the complainant was unfairly dismissed and the complaint succeeds and I award €15,120. However, I hold that the Complainant contributed to his own dismissal and failed to mitigate his loss by 60% such that I order the Respondent to pay the Complainant the total sum of €6,048 for the unfair dismissal.

Unfair dismissal, injury, mitigation of loss