Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00019759-001

13/06/2018

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

CA-00019759-002

13/06/2018

On the morning of the 5th of February 2018 at approximately 7 a.m. the complainant was driving to work having left his son off at one of the respondent building sites when his van broke down on the Tallaght bypass. The complainant called his manager to explain the situation. He asked if a tow truck could come to bring the van into the site. A tow truck was sent and took his van back to the site. The complainant signed in and got on with his work. At approximately 10:23 a.m. a mechanic came out from the AA to assess the vehicle. At approximately 12.23p.m. An AA tow truck came and remove the vehicle to the AA garage. Then the complainant received a phone call from a director of the respondent stating that he was not going to pay for the van anymore and said "you are too shaggin old, just like your van”. He then proceeded to tell him that he was letting him go and would issue him with a P45. The P45 arrived in the post a few days later. The complainant has been looking for work ever since and has signed up to a few recruitment sites but he has had no luck.

The complainant accepts that he did receive several text messages from the respondent in relation to work but he ignored them because he believed the jobs were for “cabbage” ( cash) and he wanted to be paid on the books, as an employee. He did not contact the respondent to clarify the situation.

The complainant commenced his employment with the respondent on the 8th of October 2013 as a roofer and general labourer. Prior to that, he did carry out work for the respondent but as a subcontractor. In late 2013, the complainant requested that he be made an employee of the respondent entity because he was having difficulties with revenue and social welfare. The respondent and the complainant had a very good working relationship and it was because of that that the respondent agreed to make him an employee. However, their working relationship was not a normal master/ servant relationship. The complainant was given an awful lot of leeway in relation to when he would and would not work. For approximately 66 weeks out of 216 weeks that he worked for the respondent, he went off to do work as a subcontractor for other entities. Because the respondent had a good working relationship with him he had no difficulty with this. It also suited the respondent because at times during the recession he did not have the work available to keep him busy for 40 hours per week. The respondent accepts that this flexible unusual working relationship work both ways and suited both parties. On several occasions between 2013 and February 2018 the respondent gave the complainant a P45 in order to facilitate him claiming social welfare or so that he could carry out work for other entities. However, on many occasions he would find work during those quiet periods and did not need to claim social welfare. On other occasions when the complainant was asked to do more lucrative work for other contractors he would simply not turn up for work until that particular job had finished. The respondent accepts that he was never disciplined in relation to his absenteeism.

On the morning of the 5th of February that complainant had not reported for work. The respondent contacted the complainant at 10:44a.m. The complainant was very angry that his van had broken down. He was also annoyed with the respondent for not agreeing to pay for the repair to the complainant's van which would have been the second repair in some many weeks. During the conversation he told the respondent that he was off to another site to do a job. At 10:58 a.m. the respondent called the complainant again to see whether or not he was coming into work. The complainant told him that he was carrying out a job on another site and as the respondent did in the past, he requested his accountant to issue a P45 in the belief that he would return in due course when this particular job had finished.

The respondent categorically denies that the claimant was dismissed from his employment. The text messages submitted show that the respondent continue to request that the complainant carry out various jobs following the 05th February,2018.

The complainant claims that he was discriminated against and that he was victimized however he does not provide any specific information for this claim and therefore it is submitted that he has not made out his claim. The claim should be dismissed for want of particularisation. Furthermore, the complainant did not previously make any complaint and therefore could not be construed as having suffered victimization as a result of making a complaint. This claim is misconceived.

The respondent denies that the complainant was dismissed on grounds of his age.

CA 19759 – 001

The complainant alleges that he was victimised by the respondent. However, the complainant accepts that he did not make a complaint to his employer. Therefore, I find that he does not meet the requirements under the act. I find that the complaint is misconceived.

CA 19759 – 002

The complainant alleges that he was dismissed from his employment because he was ‘too old’. The respondent categorically denies that the complainant was dismissed. It is clear from the evidence that the complainant and the respondent have a very flexible and somewhat unusual relationship. The respondent had no difficulty with the complainant going off to do work for other entities whilst he was working for him. He was absent for 66 weeks of his relatively short employment with the respondent. He was not subjected the disciplinary process. The respondent just accepted that if the complainant got a more lucrative contract that he would go off and do that work and then return to the respondent when it was finished. This is very unconventional however it seemed to work for both parties. Every time the complainant would go off to do other work the respondent would issue him with a p45. On the morning of the 05th February the complainant states that he was dismissed because he was too old, just like his van. The respondent categorically denies this. Following that conversation there are a number of text messages from the respondent to the complainant about work he required him to do. The complainant does not respond to many of them. Furthermore, he does not mention the alleged dismissal or the comment about his age. Based on these text messages I prefer the respondent’s evidence that the complainant was not dismissed and his p45 was given to him because he had gone off to do another job. Based on the documentation submitted and the evidence of the parties, I conclude that the only person who had any interest in the complainant’s age, was the complainant. For that reason, I find that the complainant was not dismissed from his employment. The complaint fails.