ADJUDICATION OFFICER DECISION
This is a Correction Order issued pursuant to Section 39 of the Organisation of Working Time Act, 1997 and should be read in conjunction with the Adjudication Officer Decision issued on 5 September, 2018
Adjudication Reference: ADJ-00012830
Parties:
| Complainant | Respondent |
Anonymised Parties | A Scaffolder | A Scaffolding Company |
Representatives | Gerard Kennedy SIPTU | A Manager |
Complaint(s):
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-00016872-001 | 16/01/2018 |
Date of Adjudication Hearing: 27/06/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant alleged he was unfairly selected for redundancy and therefore unfairly dismissed. Under the Organisation of Working Time Act 1977 Section 39.2 an Adjudication Officer may, on presentation of a request from a party to a decision or recommendation and on the presentation of material facts, amend a previous decision or recommendation on presentation of those material facts. The Complainant wrote to the WRC on October 8th 2018 requesting the following amendments to the original decision which issued to the parties dated September 5th 2018 and this Correction Order should be read in conjunction with the original decision. The Complainant requested a change of Respondent name from Sean Curtin Scaffolding Limited to Sean Curtin Contracts Limited and the Original Decision is corrected accordingly. |
Summary of Complainant’s Case:
The Complainant was employed as Grade 1 Scaffolder from February 1st 2016 to November 13th 2017. The Complainant had previously worked for the Company on two prior occasions. The Complainant was absent from work due to an Industrial accident and received an email from the Company advising him that due to the loss of contracts that his employment was being terminated with one weeks notice and that due to the “last in first out” principle for Grade 1 Scaffolders that his employment was terminated. He was offered a temporary position but was required to submit a fitness cert from his doctor to be considered for this work. Due to his medical circumstances at the time he could not meet this requirement. The Complainant alleges he was unfairly selected to be dismissed as he had longer service than a number of other employees. These employees were named at the Hearing. The Complainant alleges he was unfairly selected and as he had longer service that other staff that he was unfairly dismissed. The Complainant is seeking compensation as a result. |
Summary of Respondent’s Case:
The Company lost a number of specified contracts and had to reduce its workforce. The Company selected two Grade 1 Scaffolders on a last in first out basis. The staff named with lower service than the Complainant were all Trainee Scaffolders on a lower rate of pay. The Company has a long history of good employee relations and the Complainant was not unfairly selected for termination. The Company was advised to write to the Complainant stating he was terminated as he would not deal with the Company. The Complainant was offered work for a number of weeks and possibly more but refused to take up the work. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 6 of the Act states the following “6.1. 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”. It was not contested at the Hearing that the Respondent had grounds for reducing their staff due to the loss of contracts. The Complainants primary case is that he was selected for termination ahead of staff that had less service than the Complainant. However, as these staff were all Trainees at the time they were in a different category of employment to the Complainant. Also the Complainant seemed to have a difficult working relationship with the Respondent and would not engage or meet with the Respondent. The Respondent terminated two staff on the basis of last in first out, a long established principle in the company. While it may have been preferable to offer the Complainant the reduced rate that the Trainees were on as an alternative employment scenario the fact that the Complainant appeared not to be engaging with the Respondent did not help in this situation. Also the Complainant was offered alternative employment, albeit for a short period of time possibly and he refused to take this up. Overall, I find that the Respondent did not unfairly dismiss the Complainant as they had substantial grounds for reducing its workforce and applied the long established last in first out principal to the selection process. While yes they could have offered the Complainant the reduced rate of a Trainee the likelihood of this being accepted seems remote to me, based on the information gained at the Hearing, regarding the employment relationship of the parties and therefore is not a significant factor in considering this decision. I find the claim for unfair dismissal fails accordingly. |
Dated: September 5th 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012830
Parties:
| Complainant | Respondent |
Anonymised Parties | A Scaffolder | A Scaffolding Company |
Representatives | Gerard Kennedy SIPTU | A Manager |
Complaint(s):
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-00016872-001 | 16/01/2018 |
Date of Adjudication Hearing: 27/06/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant alleged he was unfairly selected for redundancy and therefore unfairly dismissed. |
Summary of Complainant’s Case:
|
Summary of Respondent’s Case:
The Company lost a number of specified contracts and had to reduce its workforce. The Company selected two Grade 1 Scaffolders on a last in first out basis. The staff named with lower service than the Complainant were all Trainee Scaffolders on a lower rate of pay. The Company has a long history of good employee relations and the Complainant was not unfairly selected for termination. The Company was advised to write to the Complainant stating he was terminated as he would not deal with the Company. The Complainant was offered work for a number of weeks and possibly more but refused to take up the work. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 6 of the Act states the following “6.1. 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”. It was not contested at the Hearing that the Respondent had grounds for reducing their staff due to the loss of contracts. The Complainants primary case is that he was selected for termination ahead of staff that had less service than the Complainant. However, as these staff were all Trainees at the time they were in a different category of employment to the Complainant. Also the Complainant seemed to have a difficult working relationship with the Respondent and would not engage or meet with the Respondent. The Respondent terminated two staff on the basis of last in first out, a long established principle in the company. While it may have been preferable to offer the Complainant the reduced rate that the Trainees were on as an alternative employment scenario the fact that the Complainant appeared not to be engaging with the Respondent did not help in this situation. Also the Complainant was offered alternative employment, albeit for a short period of time possibly and he refused to take this up. Overall, I find that the Respondent did not unfairly dismiss the Complainant as they had substantial grounds for reducing its workforce and applied the long established last in first out principal to the selection process. While yes they could have offered the Complainant the reduced rate of a Trainee the likelihood of this being accepted seems remote to me, based on the information gained at the Hearing, regarding the employment relationship of the parties and therefore is not a significant factor in considering this decision. I find the claim for unfair dismissal fails accordingly. |
Dated: September 5th 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal |