Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

A Diver

A Limited Company

Representatives

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-00023358-001

20/11/2018

The complainant commenced working for the respondent in September. At first it was casual work but in January 2017 he was given a full-time contract.

The complainant spoke to Mr EC over the phone about several Health and Safety concerns he had.  On the 4th of October, 2018 there was a near drowning incident. He gave the details of the incident to Mr EC. There was also an incident with a heat gun. The complainant felt that the voltage was too high and as a result it was dangerous to use.

The complainant accepts that the first time he put any of his health and safety issues in writing was on the 13th of November 2018 after his dismissal. He accepts that whilst some of these issues may have been discussed at a toolbox talk on the 22nd October, he was not present at that talk.

The complainant requested that he be paid the money, as outlined by the respondent, because he was entitled to it. The complainant does not accept the respondent’s evidence that a mistake was made in a previous payment. That payment was the correct amount and that is what he should have been paid for the Dublin job.

The complaint is in no doubt that following the meeting of the 30th of October with the Managing Director, he had been dismissed.

Under cross-examination the complainant agrees that the text messages he sent to the respondent in relation to the job in Dublin did not mention any health and safety concerns. The complainant also agreed that the only issue that was dealt with in those text messages was the issue of money.

The complainant has tried to get work since his dismissal, however the winter months in his industry are very quiet. He has only managed to secure two days employment since the 30th of October 2018.

The respondent company is a 100% family owned company. The Managing Director and his wife own 80% of the company. The Managing Director is also the chairman of the board. The complainant is a marine engineering diver. The respondent paid for a large proportion of the complainant’s training. The complainant was a good worker and up until the issue the subject matter of this case, he had no difficulties with him.

The complainant was asked to do a particular job on a ship called ‘The Ulysses’. The ship was in Dublin. An email was sent to the complainant in relation to this particular job. The company that own the ship have a very tight timeline for any work to be done. Because of that, the respondent operates a 24-hour rotation system whilst working on that particular ship. The complainant did not respond to the respondent’s emails in relation to the job. The respondent had been informed by other employees that the complainant was not happy about the situation. Text messages then went back and forth from the respondent to the complainant and vice versa.  It was clear from the text messages that the complainant did not want to do the job because he felt the money was not good enough. The complainant was going to be paid in line with his contract of employment and in line with the established practice within the industry. His contract of employment stated that he would be paid €160.00 for 10 hours work + €80.00 accommodation. (Accommodation for being away from the Head Office, 60 km or more). Bed and Board are provided by the contractor on the ship whilst the work is being done. The complainant was looking for his €160.00 plus two €80.00 accommodations and accommodation on the ship with bed and board. Following numerous text messages back and forth the complainant indicated that he was not interested in the work. The respondent was forced to bring in two divers from Holland at additional expense to cover for the complainant and his brother, the co- complainant.

On Tuesday the 31st the complainant came into the head office at approximately 8 a.m. The complainant asked the Managing Director where he stood. He was told there was “no work here for you”.

The complainant here today is now making out that his concerns where of a health and safety nature. At no point did the complainant himself make any complaints about any health and safety issues. The first time any health and safety issue were raised, was in his Circuit Court proceedings.

The Managing Director admits that he was very angry when the complainant and his brother did not turn up for the shipping contract work in Dublin. It could have placed the future of the company in jeopardy. He just happened to be in the premises on the Tuesday morning when the complainant came in. He had gone to the office to collect his golf clubs as he was travelling to Portugal that morning. He admits that he was very angry and told the complainant that he had spent €10,000 on his training and didn't do so for him to blackmail him over money in relation to an urgent job on a ship for one of the largest contractors. The complainant did ask where he stood and the respondent told him that “you are finished. I had to replace you”.

He then left and rushed to the airport to commence his holiday. When he returned, having had time to think about it, he wrote to the complainant stating that he was suspended. On the 12th of November the complainant was invited to attend an investigation meeting. The complainant responded by letter dated 13th of November,2018 stating they would not attend for the meeting. The respondent wrote again on the 15th of November,2018 asking him to attend. He did not. Following that the complainant was dismissed by letter dated in the 29th of November,2018 for gross misconduct. The respondent is of the opinion that the complainants felt they should be paid more money based on a previous payment that was made to them in error.

In the affidavits sworn for the court proceedings, the complainants raised some health and safety concerns. Having carried out a thorough search of all health and safety records and spoken to various employees of the respondent, the respondent is fully satisfied that the complainant did not make the complaints during his employment.

The complainant commenced work with the respondents on the 13th September,2016. The complainant is a diver.  It is clear from the documentation submitted that there is a history in relation to this matter which involved an application to the Circuit Court for an injunction, and an Appeal to the High Court which overturned the Circuit Court order. I have considered the content of the Court proceedings, as requested by the parties to do.

The complainant alleges that he was dismissed due to the fact that he raised health and safety complaints in the week's prior to his dismissal. However, he now accepts that the first time he put those complaints in writing was on the letter dated 13th November, 2018 two weeks after his dismissal. He said that prior to that he raised complaints verbally with his supervisors. An e-mail from a supervisor dated the 22nd October 2018 which seems to suggest that the issues the complainant was complaining about were dealt with at a toolbox talk on that date. However, the complainant was not present at that toolbox talk. Whatever about the complainant’s issues in relation to health and safety, it is abundantly clear from the text messages submitted by the respondent and the evidence of the complainant himself, that he was of the belief that the reason he was dismissed, was solely to do with the rate of pay in relation to the job in Dublin commencing on the 30th of October. He said in evidence, that the Managing Director was furious with him because he refused to go to Dublin to carry out the job for the rate of pay that was set out in the text messages. The complainant asked the Managing Director what was going to happen to his job. He was told that his job was gone.

I am satisfied that the dismissal occurred on the 30th of October, 2018. I note that the complainant was not given a right of appeal and there was no disciplinary process adopted in relation to his dismissal. I find that the complainant was dismissed because of his refusal to go to the job in Dublin. Furthermore I find that the dismissal had nothing to do with the alleged health and safety concerns. The respondent’s procedures were significantly flawed. To the extent, I can only find that the complainant was unfairly dismissed. However, I find that he contributed 100% to his own demise when he refused to attend at the job in Dublin unless he was paid a rate of pay which amounted to 45% more than his contractual rate. The respondent’s interpretation of that behaviour as amounting to blackmail was a fair assessment of the situation.

The complaint succeeds however for the reasons set out above I am making a nil award.