Complainant

Respondent

Anonymised Parties

A General Operative

A Construction Company

Representatives

Michael Connellan B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028997-001

12/06/2019

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

CA-00028997-002

12/06/2019

The complainant started work with the respondent on October 9th 2017 as a general operative on construction sites. He was laid off on April 18th 2019 and he claims that the employer used this lay-off as an opportunity to let him go. Although he was offered work by the managing director on May 17th 2019, he decided not to take up this offer and he submitted this complaint to the WRC.  

CA-00028997-001: Complaint under the Payment of Wages Act 1991

It is the respondent’s case that the complainant was not dismissed and that he was laid off temporarily. When he was laid off, he was paid all monies that were owed to him, including one week’s notice and outstanding holiday pay. Copies of the complainant’s final two payslips were submitted in evidence showing the amounts that were paid to him up to May 3rd 2019. These show that the complainant received his normal week’s pay on Thursday, April 18th 2019, plus payment for one week’s holidays not taken. On Friday, May 3rd, he received two weeks’ pay, plus payment for 23.4 hours’ holidays not taken.

CA-00028997-002: Complaint under the Unfair Dismissals Act 1977

At the hearing, the foreman on the Pembroke site said that the complainant was out sick for a few days in March, and when he returned with a cert for light work, he told him that there was no light work on a building site and he advised him to go back to his doctor to see if he was fully fit for work. He said that he was satisfied when the complainant returned to work on Thursday, March 28th, with a cert saying that he was fit to work.

A few weeks later, the site where the complainant was working on Pembroke Road, in Dublin 4 was nearing completion. The respondent intended to move him and other workers to a site in Malahide where construction was about to commence. However, due to a delay removing an ESB pole on that site, the start was delayed. Evidence of communications between the ESB and the client was submitted at the hearing.   On April 18th 2019, the complainant and two other employees from the Pembroke Road site and three employees from a site on Cowper Road were laid off until work on the Malahide site could proceed. Details of the six employees who were laid off was submitted in evidence. Of the group of six, the complainant and two others are general operatives, two are plasterers and one is a carpenter.

A copy of an RP9 was submitted in evidence which was sent to the complainant at the address that the company had on file for him. However, he had moved from that house and he didn’t get the RP9 until it was sent to him by e-mail on May 10th. The RP9 shows that the complainant was laid off on April 18th 2019 by reason of “building projects approaching completion.”

The e-mail of 10th from the managing director was in response to a letter from the complainant on May 3rd in which he said that he expected to be paid while he was laid off. The managing director replied:

“We had hoped a new site would have started by now and thus more work would have opened up, however, due to issues beyond our control, this has not happened. As was clearly explained to you we had to lay off a number of people on the same day as yourself due to works on the site are coming to completion. We are more than happy to have you back when we get enough work for that to happen.”

At a meeting on Friday, May 17th, in a hotel in Ballymount, the managing director told the complainant that work was available again and he could start back on a site. It appears from the documents submitted in advance of the hearing that the complainant alleged that he was treated differently to a scaffolder, who was brought back sometime in the previous weeks. The managing director explained that he needed a scaffolder on a site and that the complainant did not have a “ticket” to carry out this work. The complainant refused the offer to come back to work.

CA-00028997-001: Complaint under the Payment of Wages Act 1991

The complainant claims that he was dismissed and that he wasn’t paid in lieu of his entitlement to a week’s notice. His contract of employment which was submitted in evidence provides that he is entitled to notice in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973 - 2005. On this basis, as he was employed by the respondent for more than one year and for less than two years, the complainant claims that he is entitled to one week’s pay in lieu of notice.

CA-00028997-002: Complaint under the Unfair Dismissals Act 1977

On March 21st 2019, the complainant was out sick because of a sore back. He returned to work on Monday, March 25th and he produced a cert from his doctor which recommended that he only carry out light duties. He said that the foreman said that he couldn’t be at work if he could only do light work and he told him to go back to his doctor. He returned to his doctor on March 27th 2019, and he was certified as fit for work. The complainant alleges that ever since, he was given “silly little jobs” and that the respondent was trying to push him out.

On April 18th, the complainant said that he had to leave work early to collect his son from school. Before he left, he said that the foreman called him aside and told him he was being let go. He thinks that this was intended by the respondent to be a dismissal. He claims that other employees were not laid off and that some who were laid off were re-employed. He feels that he wasn’t re-employed because he has a sore back as a result of an injury.

On May 3rd, the complainant wrote to the managing director saying that there is no provision in his contract of employment to terminate his contract or not to pay him. He said, “I expect full pay to continue until there is work for me. I am aware of 5/6 sites and work is available, with new employees taken on in recent weeks. As you are aware, I am available for work.”

CA-00028997-001: Complaint under the Payment of Wages Act 1991

From the evidence submitted at the hearing, it is clear that the complainant was paid in lieu of notice when he received two weeks’ pay on Friday, May 3rd 2019.   I find therefore, that there is no substance to his complaint that he was not paid in lieu of his entitlement to notice.

CA-00028997-002: Complaint under the Unfair Dismissals Act 1977

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act. Dismissal is defined as the termination by the employer of the employee’s contract, or, the termination by the employee of his contract. At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

I have considered the evidence presented to me at the hearing of this complaint and the submissions of both sides. Of note is the e-mail from the complainant on May 3rd 2019 in which he stated that he expected full pay to continue “until there is work for me.” This indicates to me that, on May 3rd, the complainant did not consider himself to be dismissed.

Having been laid off on April 18th 2019, work was available for the complainant about four weeks later, on May 19th. Although he could have returned to his job with the respondent, for his own reasons, the complainant decided not to go back. It is my view that the complainant was not dismissed, but that he decided not to return to work after being laid off for four weeks.

CA-00028997-001: Complaint under the Payment of Wages Act 1991

As I have concluded that the complainant received his entitlement to pay in lieu of notice, I decide that this complaint is not upheld.

CA-00028997-002: Complaint under the Unfair Dismissals Act 1977

As I have conclluded that the complainant was not dismissed, I decide that this complaint is not upheld.

Pay in lieu of notice, lay-off, dismissal