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-00019920-001

21/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019920-002

21/06/2018

The complainant is a young man and he commenced employment on February 1st 2017. He earned €489.00 gross per week. The respondent is as a roofing sub-contractor and he had a contract to construct the rooves on homes being built by Dublin City Council. The complainant was dismissed on March 15th 2018. His complaint is that his dismissal is unfair because proper procedures were not followed and that, in effect, it was a summary dismissal. He also claims that, in the months before his employment was terminated, he was bullied by his employer, not given adequate training and generally, that his employer “had it in for him.”

Issues withTime-keeping and Performance

The respondent’s case is that the complainant was hired as an experienced roofer, having been recommended by another employee who worked with him previously. It is denied that he was engaged as a trainee. The respondent said that the complainant was unsuitable for the job and that he demonstrated a complete disregard for his employer and his colleagues. He was unreliable and failed to show up for work on numerous occasions. In her submission at the hearing, Ms Cashe provided evidence of 12 occasions between February 2017 and February 2018 when the complainant didn’t turn up for work and didn’t contact his employer to let him know that he wouldn’t be in. Evidence was also provided of two occasions when the complainant left work without permission at 2.30pm. This evidence was presented in the form of copies from pages from the director’s work diary where he made notes of absences and other issues that occurred in the workplace. On the day he was dismissed, the respondent said that the complainant was late and that he spent 15 minutes on his phone before he started work.

Procedure Leading to Dismissal

For the respondent, Ms Cashe said that the director discussed his absences with the complainant on an informal basis and that on February 15th and December 5th 2017, he was given verbal warnings and told that he must show up for work regularly and if he can’t attend work, he must inform his employer.   He was given a final written warning on January 16th 2018, following further absences from work.   This letter states:

“Despite verbal warnings about your employment to (name of company).

“This is to notify you that this is your last warning about your employment, that you will be dismissed from (company) if your (sic) continually late, missing days and not working on site to the satisfaction of Site supervisors.”

Having received this warning on January 16th 2018, the respondent said that on March 15th, the complainant arrived late for work and spent the first 15 minutes of his shift on his phone.

In her submission, Ms Cashe said that the respondent’s other employees refused to work with the complainant because they had to re-do his work and they couldn’t rely on him to turn up. The complainant was dismissed on March 15th 2018 because, despite numerous opportunities to do so, he failed to engage with his employer and improve his attitude towards his work.

Dismissal

For the respondent, Ms Cashe said that the complainant was dismissed in accordance with section 6(4)(b) of the Unfair Dismissals Act which provides that a dismissal is not unfair if it results from the conduct of the employee. She said that the complainant was dismissed because of his conduct, having failed to show up for work repeatedly and having been warned that any further absences would put his future with the company at risk.   Ms Cashe accepted that there may be “some procedural issues surrounding his dismissal,” but that these issues did not negate the fairness of the outcome.

Evidence

In his evidence at the hearing, the director said that on March 15th 2018, he got a phone call from the site manager who said that they were behind on the project.   The complainant was not at work.   The director said that he went to the site, arriving at 7.20am. The complainant arrived at 8.00am and talked on his phone for 15 minutes.   When he got off the phone, the director said that he “told him to go.”

The director said that he gave the complainant “more chances than anyone.” He said that it’s hard to get employees and that he wouldn’t normally give someone so many chances, but he was hoping that the complainant would show some initiative. He said that the work was repetitive, and that the complainant should have been capable of doing it properly after a short time.

One of the respondent’s employees gave evidence. I will refer to this witness as “Mr A.” Mr A said that he worked with the complainant for two years on another job and he met him late in 2016 and the complainant asked him about the possibility of a job. He said that he didn’t think it would take him too long to “get into the swing of things” but he said that the complainant “wasn’t confident” and that “he would panic a bit.”   Mr A said that construction work is always changing and that he is still learning himself. He said that he showed the complainant how to do things and he described how he showed him to do “beads” and “sweeps” and he said that he told him to “keep your head down and keep working.”

Asked about how the complainant was treated in the workplace, Mr A said that he wasn’t singled out for particular treatment and that the director “gave out to everybody” if they were standing around or if they were on their phones. He said that early in his employment, he used to give the complainant a lift to work, and then he moved house and the complainant came on his bike.

In cross-examining by Mr Gill, Mr A said that he wouldn’t have to show the complainant how to do things any more than another employee who was new on the site. He said that he complainant’s problem was that he panicked. He said he “gave out to him” but that he “didn’t shout and roar.”

The second employee, “Mr B” said that he worked for six or seven months on the same site with the complainant. He said that they all got the same training, which was to install zinc panels on the building structure. He said that in his opinion, the complainant can do this work and all the roofers did the same job. He said that the complainant was sometimes late, but he thinks that he was there every day. When he was asked about how the employees were treated on the site, Mr B said that “everyone roars and shouts on building sites” and that all the employees were treated the same.

Recalling the day that the complainant was dismissed, Mr B said that he was told to go down to the bottom of a ladder and that an argument ensured between the complainant and the director. He understands that he was let go then.

In cross-examining, Mr B was asked if he observed the complainant talking on his phone and he said that he couldn’t remember. He said that he heard the complainant being told to leave the site and that the director and the complainant were shouting at each other. He said that he decided that it was nothing to do with him. In response to a question from Mr Gill about the director’s treatment of the complainant, Mr B said that the complainant had remarked that the director was “picking on him.”

Reference to Case Law

In support of the respondent’s case, Ms Cashe referred to a number of case law precedents.

Elia Erian Aziz v the Midland Health Board [1995] ELR 48

Here, the Circuit Court held that:

“(3) While a disciplinary body exercising quasi-judicial functions is bound to adopt fair procedures, a bona fide defect in the procedures adopted is not necessarily fatal to the legality of the ultimate decision made.

“(4) Where a defect in the procedure adopted or in the conduct of the proceedings is alleged, the applicant, in order to succeed must establish that the complaint is well founded and that the defect complained of raises a reasonable possibility that an injustice may have been done.

“(5) Accordingly, where there is no reasonable possibility that an injustice may have been done to the person under investigation as a result of the defect complained of, the decision is lawful and has the same effect as it would have had if no such defect had been found.”

Loftus and Healy v An Bord Telecom 913 February 1987, unreported, High Court)

In this case at the High Court, the judge concluded that it was not simply a matter of whether employees were deprived of a fair procedure, but rather,

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ...(the basis of its dismissal) as a whole or main reason for justifying their dismissal.”

Pacelli v Irish Distillers, UD 571/2001

In this case at the Employment Appeals Tribunal (EAT) the chairman stated,

“…in determining this appeal we must look at the substance of the complaint and beyond mere defects of form.”

In the present case, Ms Cashe argued that the respondent engaged with the complainant to discuss his absences and productivity and while the complainant did improve in the short-term, “he would revert to his previous behaviour soon after.” The issuing of the warnings to the complainant shows how serious his misconduct was considered by his employer, and it was submitted that the employer acted reasonably and proportionately in the circumstances of this case.

In respect of reasonableness, Ms Cashe referred to the seminal case of Looney & Company v Looney, UD843/1984, where the EAT resolved that it was its responsibility to,

“… consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

On the same theme of the reasonableness of the employer’s action in deciding to dismiss the employee, Ms Cashe referred to the decision of the EAT in the case of Barry v Precision Software Limited (UD624/2005, where the chairman stated:

“In determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissals Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal…it is not for the Tribunal to intrude into the Respondent’s managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses which a reasonable employer might make.”

Finally, Ms Cashe referred to the decision of Mr Justice Linnane in the High Court in the case of Allied Irish Banks v Brian Purcell [2012] ELR 189, which reinforced the conclusions of the EAT in respect of the reasonableness of the employer’s decision as considered by the Tribunal in the Barry v Precision Software case referred to above.

Concluding her submission in respect of the reasonableness of the employer’s decision in this case, Ms Cashe said that the complainant was not dismissed “lightly or in the heat of the moment” but rather when he demonstrated his unsuitability for the role and his failure to improve despite a series of warnings and informal conversations about his conduct.  

Criticism about Time-keeping and Performance

In his submission at the hearing, Mr Gill said that the complainant was hired as a trainee roofer, although he had a limited amount of previous experience. He said that before he started, his employer was aware that he was relatively new to the work. In his own evidence at the hearing, the complainant said that he “hadn’t touched his tools for 10 years” and that the director who employed him knew this. He was not assigned a mentor to oversee his training, which, according to Mr Gill, would be normal in trainee contracts.

As an employee earning €489 per week, the complainant said that this is indicative of his status as a trainee, as other employees earned €550 and €600 per week. At the hearing, the director said that the rate of €600 per week is paid to supervisors and that those who earned €550 were paid this amount because they were more productive.

The complainant said that there were no issues related to the standard of his work or any other matter in the early months of his employment. In January 2018 however, after 11 months, he received a written warning about his time-keeping and the quality of his work. He said that there was never any discussion about punctuality problems or work issues before he got the written warning and there was no meeting with him prior to the warning being issued. At the hearing, the complainant said that he was late by 15 or 20 minutes on two occasions.

From day one, the complainant said that he felt that his employer was “extremely over critical of his work” up until his last day.   He said that he was treated as if he should have the same level of skill as an experienced roofer, although he claims that the quality of his work was good. He said that he was there to learn and gain experience, but he was often left to work on his own for days at a time. The complainant’s case is that his employer did not take account of the fact that he was a trainee and expected him to work to the same standard as experienced roofers and to not make any mistakes.

When he was issued with the written warning, the complainant said that there was no discussion with him about the problems with time-keeping or the quality of his work.   When he handed him the letter, the complainant said that his employer commented, “actions speak louder than words,” and that was the sum of what was said. At the hearing, Mr Gill argued that there was no incident of gross misconduct that would have warranted the complainant’s summary dismissal.

Previously, the complainant said that the “words” that he heard from his employer were words of criticism and aggressive comments as he passed him on the site. He said that he never stopped to ask questions or to give constructive criticism.

Procedure Leading to Dismissal

Mr Gill submitted that no proper procedures were followed in the lead-up to the complainant’s dismissal. He said that he got no verbal warnings and that the verbal warnings of February and December 2017 referred to by the respondent were just “informal conversations” which the complainant doesn’t recall. He received just one written warning, there was no letter of dismissal, no opportunity to appeal the decision to dismiss him and no meetings to discuss the issues that led to his dismissal. On the day he was dismissed, the complainant said that his employer told him to get his belongings and go home “or else I’ll take a lump out of your jaw.” The complainant said that he was so shocked that he just got his bike and left the site and that he had to go back a few days later to collect his bag when the director wasn’t on the site.

The complainant’s case is that the process followed by his employer, amounting to a written warning in January 2018 followed by dismissal in March, was “no process at all” as it breached the principles of fair procedures. On this basis, he argues that his dismissal was unfair.

Summarising the complainant’s case, Mr Gill said there was no proper supervision on the site where the complainant worked, but that he was subjected to excessive monitoring.   He claimed that these conditions are not mutually exclusive.

Mr Gill noted that there is no evidence in the director’s work diary of the verbal warnings which he claims were issued to the complainant, and yet, there appear to be “meticulous notes” about absences. Mr Gill questioned whether the complainant ever received a verbal warning and submits that he did not. On March 15th, when he was told to leave the site and the director threatened to take a lump out of his jaw, Mr Gill said that the complainant was shocked. At the hearing, the complainant’s mother gave evidence of the effect that this had on him and on his distress when he arrived home.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent said that the complainant was dismissed because of he had a record of not turning up for work and not notifying his site manager that he wouldn’t be in, that he was consistently late and because he didn’t do his job according to the standard required by his employer.

The Facts

Leaving aside the disputed elements of this case, from my assessment of the evidence submitted at the hearing, I understand the facts to be as follows:

The complainant was not recruited as a trainee. While he had no contract or statement of his terms and conditions of employment, it is clear that he was recruited as a roofer. Evidence was submitted at the hearing to the effect that he received training in manual handling and in working at heights while he was employed by the respondent.

It was accepted by the respondent that he hadn’t got much experience, but the director said that the work was repetitive and not complicated. Despite this, it seems that the complainant lacked confidence about the work he was required to carry out and that he had a tendency to panic about certain aspects of the job.

I accept the evidence of the director that the complainant didn’t turn up for work on 12 occasions between February 2017 and March 2018 and that he didn’t notify anyone that he wouldn’t be in.

From what I can deduce from the evidence, it appears that the verbal warnings that the director referred to which he said were given to the complainant on February 16th and December 5th 2017 were more in the form of discussions with him about his attendance and were not verbal warnings as generally understood by employers and employees. There was no evidence of a disciplinary procedure, no meetings, no representation and no record of the warnings.

The complainant felt that the director singled him out for criticism; for his part, the director found the complainant’s attitude to his job frustrating and annoying and, from my observations at the hearing, it is apparent that they did not get on.

From his own evidence, the director did not understand his responsibilities with regard to the proper procedure to be followed when managing problems with an employee.   His decision to let the complainant on March 15th 2018 go arose from his reaction to seeing the complainant talking on his mobile phone when he was already late for work.

Was the Decision to Dismiss Reasonable?

My job is to consider if the director’s decision to dismiss the complainant was reasonable, and if the process that led to his dismissal was a fair process.

In his evidence, the director said that it was hard to find employees and that he hoped that the complainant would “use his initiative” and do the job according to the standard required. For the director, this was an important public contract and he needed all the employees he had to complete the work.     It seems to me that, if he had had more employees, or less pressure on the job, he may have dismissed the complainant sooner, because it is apparent that he found him unsuitable from the early days of his employment. Considering the test of reasonableness set out in the Looney, Precision Software and other cases, my job is,  

“…to look at what a reasonable employer would do in the circumstances.”

Based on the evidence I heard at the hearing, it seems to me that it was not unreasonable for the respondent to dismiss the complainant due to his failure to demonstrate that he could do the job for which he was employed and of coming to work regularly and on time.

I must now consider the process or lack of process that resulted in the complainant’s dismissal.

At this point in the evolution of our employment legislation, most employers are aware of the right way to manage problems of conduct or performance. Regardless of the type of industry or the pressure of work, an employee whose performance is considered to be below par is entitled to be treated fairly, in accordance with a logical process and given the opportunity to improve. It appears that in this employment, there was no contract of employment, no handbook and no disciplinary procedure. For the respondent, Ms Cashe made valiant efforts to describe what occurred as if it happened in line with a semblance of a process, but even she acknowledged that “there may be some procedural issues surrounding the dismissal.”

It is apparent to me that, contrary to the respondent’s contention that the complainant “was not dismissed lightly or in the heat of the moment,” this is precisely what happened. I accept the respondent’s evidence that he spoke to the complainant on a number of occasions about his performance and his conduct, and it is clear that he gave him plenty of chances to improve. Unfortunately, the “chances” appear to have been in the form of “shape up or else” type of chances and there was no clear direction to the employee or an explanation of how to address his deficits. In the end, he was dismissed “in the heat of the moment.” I cannot think of any circumstance in which this can considered to be other than unfair.

Having been dismissed on March 15th 2018, the complainant said that he got another job on April 9th, earning €499 per week. His loss therefore, amounts to three weeks’ pay. As I have found that his dismissal was unfair, I decide that the employer is to pay him compensation amounting to €1,500, which is equivalent to approximately three weeks’ pay.

Mr Gill said that the respondent was critical of the complainant’s work and was rude and aggressive. The complainant said that his employer didn’t like him and “in the most unprofessional manner” he let this be known in the workplace. Mr Gill said that the employer’s apparent dislike of this employee led him to get angry even about the smallest issues when the complainant was not at fault.   He said that this attitude persisted until the last day when the employer threatened to take a lump out of the complainant’s jaw. The complainant’s case is that this constitutes bullying in the workplace.  

Mr Gill said that just because people work in an environment where shouting and roaring is the norm, that a person cannot make a complaint and have his complaint upheld.

For the respondent, Ms Cashe said that the complainant has failed to identify or specify the exact nature of his complaints and has not provided dates, times or witnesses, “relying on nothing more than mere allegations as the sole basis of his complaint.” Ms Cashe referred to the Labour Court case of Able Security Limited and Hardjis Langsteins (DWT 1319), where the chairman stated,

“The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.”

In the case under consideration, the complainant failed to raise any concerns he had with how was treated while he was employed.

Ms Cashe referred to the case of Ruffley v the Board of Management of Saint Anne’s School [2017] IESC 33 where Mr Justice Charleton stated that,

“Bullying is not about being tough on employees.   Appropriate interventions may not be pleasant and must simply be taken in the right spirit.”

Summarising the employer’s response to this complaint, Ms Cashe said that the complainant was not bullied by his employer and he was not treated unfairly. She said that he was given ample opportunity to improve himself and he showed no interest in his job.

I have considered this complaint of bullying as it has been submitted under the Industrial Relations Act 1969. It is my view that the matters complained of are related to the issues which led to the complainant’s dismissal and the fractiousness of the relationship between him and his employer. This matter has already been considered under the heading of the complaint under the Unfair Dismissals Act, where I have found in favour of the complainant.  

If the complainant perceived that his treatment at work amounted to bullying, he could have raised this with the director, or he could have submitted a complaint to the WRC at any stage prior to his dismissal. It is an accepted practice that an adjudicator should not, unless exceptional circumstances prevail, intervene in a dispute between an employer and an employee until the parties have made efforts to resolve the matter between them at the level of the workplace.

It is my view that the reference of this complaint under the Industrial Relations Act is a duplication of the complaint under the Unfair Dismissals Act. Alternatively, its reference is misconceived as the matters complained of were not addressed between the parties at local level.

I recommend that the respondent engages with a human resources professional and that he draws up a handbook for employees which contains procedures to deal with grievances and disciplinary issues. I also recommend that employees are issued with statements of their terms and conditions of employment, in accordance with the provisions of the Terms of Employment (Information) Act 1994.

Unfair dismissal, procedures