ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015427
Parties:
| Complainant | Respondent |
Anonymised Parties | A Block Layer | A Recruitment and placement specialist company |
Representatives | Lalloo & Company Solicitors | HR Consultant |
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-00020014-001 | 25/06/2018 |
Date of Adjudication Hearing: 03/09/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
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 and 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 consider all documentary or other evidence which may be tendered during the hearing.
In particular, 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 25th June 2018) issued within six months of his dismissal, I am satisfied that I have jurisdiction to hear the within Unfair Dismissals claim.
Having heard the evidence I am satisfied that the Complainant herein is claiming that this was a Constructive Dismissal where he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997). The Complainant terminated his Contract of employment on the 15th of June 208 after a three week period wherein the Employer had, in effect, been incommunicado.
It is noted that the burden of proof shifts to the Complainant in the Constructive Dismissal type case. There is a positive obligation on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation.
Background:
The Complainant is a competent block layer who had worked for the Respondent for over eighteen months when the work dried up without explanation or communication. |
Summary of Complainant’s Case:
The Complainant said he had no idea as to why his Employer simply stopped communicating with him and was forced to issue an ultimatum which was not responded to (within the time limit he allowed), forcing the Complainant to move on to another employment. |
Summary of Respondent’s Case:
The Respondent says that the Complainant knew or ought to have known that he was in a period of lay off. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant was recruited by the Respondent company in and around 11th of January 2017. The Complainant is a skilled block layer recruited by the Respondent company and placed in various client construction sites around the city of Dublin as the need arose. The Contract of Employment allows for periods of lay-off in the event that there is a slowdown in the market. Any such lay off to be Notified as soon as is practicable.
As it happened the Complainant’s engagement to date was such that he appears to have seamlessly moved from site to site. There were no periods of lay off in the first 18 months although the Complainant does believe that his hours were beginning to tail off a little by the end of May at which time the Complainant was finishing up with a site being operated by a large Construction company S Ltd..
The Complainant gave evidence that he had had no communication with the company on his last day on the site being run by S ltd and certainly no communication which tended to notify him that he was on a term of lay-off arising out of the unavailability of work. The Complainant assumed he would be posted to a new site by Monday the 28th of June as was the practise. This did not happen. Nor was the Complainant notified the next Monday the 4th of June as to where and when he might be expected to work.
On the next Monday – the 11th of June, the Complainant wrote to his direct area/line Manager as well as Mr. K in charge of placement city wide. In no uncertain terms the Complainant advised that he had not heard from the Employer for two weeks and was now commencing a third week with no communication. He advised that in the event that he did not hear from them on or before the Friday the 15th of June he would consider himself to have been terminated. The Complainant set about the task of looking for alternative employment.
For reasons unexplained, the Respondent did not seek to engage with the Complainant on or before the Friday 15th date and therefore should and could not have been surprised when the Complainant sent in a further communication confirming that he now considered his employment to have been terminated.
It was only on the next Monday the 18th of June that the Employer came back to him explaining he was on temporary lay off and that they would find work for him in due course.
The Respondent has indictated to me that a Mr. OT in their service would have notified the Complainant of the fact that he was on lay off. The Complainant says he was never so notified and had heard nothing during a three-week period from the date of his last job on the 25th of May.
On balance I am inclined to believe the Complainant herein. I believe that if there was a genuine Lay off situation then the complainant would have been notified and the Employer would have set in train whatever documents were required to ensure that the Complainant would be able to obtain his well-recognised Social Welfare entitlements to which are applicable in a lay off situation. As this was not done, I must assume that the employer was not treating this as a lay off period and that the lack of communication with the Complainant was by way of unfortunate error or that some other obscure intention was in operation. This situation could have been retrieved for the four day period following the issuing of the email by the Complainant on the 11th of June 2018, The Employer failed to respond with the result the Complainant in effect resigned his position and that resignation was as a direct of the conduct of the Employer who had behaved most unreasonably in allowing it’s employee to go three full weeks without any source of income or any explanation for the lack of same or any information on how to ameliorate that fact by advising in relation to Social Welfare.
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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.
I am satisfied that the Complainant has made his case under the Unfair Dismissals Acts and is entitled to be compensated for his losses. The Complainant’s representative has outlined the limited nature of the losses actually incurred in circumstances where the Complainant has operated to mitigate losses and in the circumstances, I award the Complainant six weeks losses. I award €5,100.00 |
Dated: 10th January 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath