ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021153
Parties:
| Complainant | Respondent |
Anonymised Parties | Diving Technician | Underwater Engineering Services Provider |
Representatives | Mary Minchin Kearney Roche and McGuinn Solicitors Ronan Quinn BL | Jonathan Cullen Ensor O'Connor Solicitors Will Fitzgerald BL |
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-00027983-001 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00027983-002 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00027983-003 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00027983-004 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027983-005 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027983-006 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027983-007 | 26/04/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00027983-008 | 26/04/2019 |
Date of Adjudication Hearing: 16/10/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 26th of April 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (generally protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
Background:
The Complainant brings a complaint of having been Unfairly Dismissed from his place of employment on the 30th of October 2018. The Complainant additionally cites a number of other contraventions of relevant protective employment legislation. All the complaints are contained in the Workplace Relations Complaint Form dated the 26th of April 2019 and which issued within six months of the Complainant’s abrupt departure from the workplace. |
Summary of Complainant’s Case:
The Complainant was represented, and I was presented with a full book of relevant documents. I heard directly from the Complainant and his evidence was tested by the other side. |
Summary of Respondent’s Case:
The Respondent was also fully represented, and I was provided with legal submission together with supporting documentation. Two witnesses presented on behalf of the Employer and that evidence was tested in cross examination. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The Respondent has accepted that it has terminated the Employment herein and that the Burden of Proof therefore rests with the Respondent to demonstrate that it has acted reasonably in all the circumstances. The Respondent’s evidence was provided by the Complainant’s line Manager LM and the Company owner/Director DK. The Complainant is an experienced diver and had worked with the Respondent underwater engineering company since about 2015 albeit there were a few breaks. The Complainant recognised that the Respondent was only one of four companies that operated within this specialised work sphere and that if he was suited to the work, his career and earnings capacity were potentially on an excellent trajectory. In the course of the evidence, the Complainant indicated that he became increasingly frustrated with the slow pace of upskilling him in the more dynamic underwater work of welding, soldering and salvage and that he was (more often than not) in the yard or acting as support to actual dives. In evidence, the Complainant did indicate that there was some training in underwater electrics and welding etc. but this seemed sporadic and lacked coherency and timetabling. In September of 2018 the Complainant was provided with his first comprehensive workplace Contract – a Fixed Term Contract due to last three years. The Contract provides for rates of pay, hours of work and flexibility. The Contract indicates an intention to train the Complainant albeit in the context of claw back expectation if the Complainant leaves the workplace early. Over the course of the last week of October 2018, the Respondent had agreed to carry out certain works on the hull of one of the busiest car ferries owned by a client ferry company whose custom was of great value to the Respondent. The Respondent Management and employees were aware that any period of time wherein this Ferry was out of service gave rise to huge financial losses to the client. In these circumstances the workforce was aware that there was an imperative that the work to be done, be done within the agreed four days and that a rolling 8 hour shift pattern was expected of the workforce. Two teams of 8 were set up and the Complainant was part of one of these teams. In preparation of this intensive period of work the Complainant was upskilled in welding and it was hoped that he would therefore get some real time experience over the course of the job. The Job was due to commence first thing on a Tuesday morning. Over the course of the weekend the issue of the rate of pay became an issue. The Complainant believed that in addition to a standard rate of pay he should also be entitled to a further (gross) allowance of €80.00 per day for food and accommodation (though this was being provided free on board the ferry) or for the fact that he was presenting on site as a welder. The email communication between the Complainant and his line Manager LS ran over a few days prior to the commencement of the job. I am satisfied that LS conducted this conversation in a friendly manner and that he comprehensively explained the limits on the daily rates of pay and I have been provided with no evidence that these rates were below market or reasonable expectation. The Complainant put up the argument that the rates were very low given the level of disruption. I accept 8 hours on, 8 hours off is indeed very onerous. The Complainant believed therefore that the “all shoulders to the wheel” attitude of his Employer should come with an enhanced remunerative package not provided for in the Contract of Employment. It is worth noting that the Complainant was backed in this argument by a number of his co-workers all of whom were described by DK as being at the least experienced end of the workforce. In the course of his evidence to the WRC, the Complainant also said that he was bothered by safety issues and practices within the company. On balance I cannot accept that the Complainant came across as having any particular Health and Safety concerns in the lead up to the Ferry job and to my mind all the evidence leads to the unavoidable conclusion that the Complainant was looking to be paid more money for the job in hand. At 6.10pm on the evening before the commencement of his shift at 9 am the Complainant indicated he was not going to do the work. In a surprisingly measured response, to this decision, LS simply sent a text “…No worries. Best of Luck Going forward.” To my mind this text acknowledges that the Complainant’s decision makes his continued employment unlikely. The Complainant warily presented at the workplace on the next day (October 30th) to see what the situation was. A very irate DK unambiguously dismissed him saying his “…work was gone”, and the Complainant left the workplace. I note that DK did subsequently cool off. In doing so, he decided that he would afford the Complainant and his colleagues the opportunity to make their case through an investigation/disciplinary process as provided for in the workplace handbook. A letter outlining this proposal was sent on the 12th of November – which is two weeks after the dismissal. The letter places the Complainant on an unpaid suspension pending the outcome. I cannot be sure that this proposal was genuinely meant or was, in fact, an attempt by DK to back-track on the summary dismissal issued by him in a heated (his own admission) conversation on the 30th of October. In any event, the process was not availed of and the Complainant in a (possibly) unhelpful letter of the 14th of November he confirmed that he considered himself to have been unfairly dismissed and opted not to engage face to face. Ultimately the Complainant’s dismissal was confirmed by letter dated the 29th of November 2018. Unusually the company asserts in that final letter that an investigation and disciplinary process has been conducted in the Complainant’s absence and the outcome of that has given rise to the Disciplinary measure of termination. On balance, I agree that the Complainant was unfairly dismissed but only insofar as the Dismissal was a spontaneous one, and one that did not afford the Complainant any opportunity to make his case, be listened to and to be treated in accordance with the principles of fairness. Having now given the Complainant this opportunity to be heard, I find I am not persuaded that the Complainant did not wholly contribute to the outcome. In the circumstances, I cannot compensate the Complainant for any financial Loss he might have sustained as he brought about this dismissal through his own action in not presenting for work.
I heard further evidence in relation to those other complaints made under other legislation.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00027983-001 The Complaint succeeds. For the reasons outlined, I make nil award of compensation for remunerative losses.
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027983-002 The Complaint herein is well founded. The Complainant is entitled to his Minimum Notice at the four weeks provided for in his Contract of Employment. His Gross weekly earnings are in the amount of €800.00 per week.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00027983-003 The Complaint herein is not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00027983-004 The Complaint herein is not well founded. No evidence adduced.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027983-005 The Complaint herein is not well founded. No evidence adduced.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027983-006 The Complaint herein is not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027983-007 I am satisfied that the Complainant’s case is well founded regarding unpaid annual leave. Neither party provided definitive evidence. I order compensation in the sum of €800.00 for 5 lost holidays.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027983-008 This is repetitious and dealt with at 007 above.
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Dated: 2nd December 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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