Complainant

Respondent

Anonymised Parties

A general labourer

A maintenance company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016069-001

30/11/2017

The respondent is a property maintenance company and the complainant commenced employment there as a general labourer on September 1st 2015. He claims that he was dismissed on September 22nd 2017; however, the respondent’s position is that he left of his own volition. The issue of dismissal is therefore in dispute and the burden of proof is on the complainant to show that he was dismissed.

In his evidence, the complainant said that on September 22nd, which was his last day at work, the project manager who had joined the company in June, arrived on the site where he was working, with the tools needed for the job. He said that the project manager told him, “Today is going to be your last day, we’re bouncing off each other.” Later in the day, he said that he was told by another colleague to bring the van to the company’s yard at the end of the day. He drove his colleagues home and went to the yard. He said that the father of the managing director took the van from him. He said that the fact that he was instructed to bring the van to the yard, rather than drive it home to his own house which he normally did, indicated to him that he was being let go. He said that when the father of the managing director took the van from him, he knew he was fired.

The managing director gave evidence for the respondent and he said that he and his father set up the company in 2009. They now employ around 30 people and they provide maintenance services to businesses.   The managing director said that around June 2017, they employed a project manager to put more structure on their business and this manager set up their HR and Accounts Departments.

From September 2015, the complainant worked on an on-call basis, depending on work-load. In July 2017, at the recommendation of the project manager, he and a number of other employees were offered full-time contracts.   The complainant was offered a revised salary of €24,960, an increase of €5,200 on his previous wages; however, he refused to sign the contract as he continued to negotiate for a higher salary. Despite refusing to sign the contract, the complainant was paid the new salary with effect from July 2017.

The evidence of the managing director is that on September 22nd 2017, the project manager went to the site where the complainant was working with the intention of issuing him with a written warning. The project manager did not attend the hearing. The managing director said that the complainant had received several verbal warnings and this warning was because he arrived on site that day without his tools. The complainant had the use of the company van and there had been previous issues with him being late picking up his colleagues, with the result that they were all late for work. He had been asked repeatedly to sign the contract offered on July 10th, but he refused to do so. A written statement was presented in evidence from the project manager in which he stated that he issued the complainant with a written warning in relation to his attitude to work and not signing his contract. His statement records that the complainant said, “Oh so you’re letting me go because I’m not signing a contract.” The statement also records that the project manager clarified that he wasn’t letting the complainant go, but that he had to have a contract. He said that the complainant replied in a threatening manner, “I’m going to walk away before I do something I regret.”

Was the Complainant Dismissed?

The evidence of both parties at the hearing was entirely contradictory and the situation wasn’t helped by the fact that the project manager did not attend. I am therefore left to draw my own conclusions based on the evidence of the complainant and the managing director, who was not a witness to what occurred.

We can be certain about very little in relation to this complaint, but we know that the complainant was a disgruntled employee who had difficulties taking direction from the recently-appointed project manager and who was unhappy with the financial terms of the contract offered to him in July 2017. We know that there was an altercation between the complainant and the project manager on the last day that the complainant worked for the company. The complainant did not deny that he said, “you’re letting me go because I’m refusing to sign a contract.” When he was told to take the van back to the yard, it was apparent to the complainant that he was fired. As he used the van to collect other employees to bring them to whatever site they were working at, it is apparent that when he was relieved of the van, he was dismissed.

It is my view that the complainant was relatively unperturbed by this severing of the relationship with the respondent company, as he made no effort to plead his case to get the managing director or his father to change their minds about letting him go. At the hearing, he said that he was unhappy with the contract he was offered, as he thought he should have got more money and that he should have been offered a job as a manager.

If it is the respondent’s position that the complainant was not dismissed, then they also could have made some effort to get him to come back to work, or, failing that, they could have written to him to record their understanding that he left of his own accord. Despite the paucity of the evidence, I am required to make a decision on this matter, and I have concluded that the complainant was dismissed.

Was the Dismissal Unfair?

It is clear that in dismissing the complainant, the respondent failed to follow any proper procedures, despite the fact that his contract referred to a disciplinary procedure which states that:

“In all dismissal cases, a full investigation will be carried out and you will have the right to put your case and be accompanied by another staff member or appropriate representative, and the right to appeal against a decision to Management.”

Whatever the reason for the dismissal of an employee, it is now settled law and firmly established practice that employees are entitled to the benefit of fair procedures based on the principles of natural justice. Where procedures do not exist in a workplace, the Oireachtas has enacted a statutory instrument, SI 146 2000, as a Code of Practice on Grievance and Disciplinary Procedures. The respondents had the advice of a project manager to guide them, and although they introduced proper contracts and a company handbook, they failed to follow any standard procedures and the effect of this is to render the dismissal unfair.

On behalf of the complainant, Mr Cannon said that compensation is the only reasonable remedy in these circumstances where relations between the parties have clearly broken down. Having been dismissed on September 22nd 2017, the complainant said that he got a part-time job in April 2018. He said that he didn’t want to go back to maintenance work, because he had a sore back, although the job he started in April was on a construction site. He works three days per week, and he earns €100 per day.

It appears that the complainant did not take up a new job because he had a back complaint and, for this reason, I have to assume that he was not available for work following his dismissal. The job he commenced on April 2018, is a part-time job and, despite the shortage of labour in the construction industry, the complainant did not give any reasons why he was not working full-time.

Taking account of all these facts, I have decided that he respondent should pay the complainant compensation of €4,500. This is equivalent to the loss of earnings in the nine weeks from the date that the complainant commenced in the part-time job to the date of the hearing, plus six weeks’ pay.

Unfair dismissal, lack of procedures