Complainant

Respondent

Anonymised Parties

{A General Operative}

{A Building Company}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00023032-001

05/11/2018

The Worker is a General Operative and was employed from 18th June 2018 to 12 October 2018.

The Worker was employed with the company for almost 2 years with a gap of 7 months. He was told to wash windows on one of the owner’s properties. The owner gave out to him and said it was not done properly. He says following an argument with his manager, he was told he was being let go but was not told why. He does not believe the redundancy is genuine as the company require General Operatives on other projects. Others were taken on later and kept on after him. He named another colleague.

The Worker says the other site was not closed until later. There was no consultation. He says he was doing fireproofing, plastering and finishing work at another site. He disputes that the named colleague was capable of doing other work, and carried out fireproofing on another site previously.

He wrote to the company seeking the grounds for selection for redundancy and the reason for the decision but there was no response.

He lost out on 1 month’s pay while he was looking for other work.

The Company dispute that the Worker has been dismissed unfairly. They say it is a genuine redundancy situation. The Complainant was paid 1 week’s notice. There were no other General Operatives employed by the Respondent. The work was finishing on different sites, and there was no need for a General Operative.

Due to custom and practice, last in first out applies. The colleague mentioned by the Worker was taken on before the Complainant. He was sent to another site after work finished on the site for a few more weeks. He can plaster, joint and tape and finish work which the Complainant cannot carry out.

I have heard the oral submissions and considered the written submissions of the parties.

The Complainant alleges he was unfairly selected for redundancy. He is aware that a named colleague (also a General Operative) who joined later was retained on site after his redundancy and was subsequently sent to another site. The selection process was not explained to him nor was he consulted.

At the hearing, the Respondent relied on Last in first out as custom and practice in a redundancy situation for the construction industry. The Respondent denies the named colleague was employed after the Complainant, and says the other General Operative was also capable of doing other work, taping and jointing. The named colleague was kept on for an additional 4 weeks.

I directed the Respondent to provide evidence from their accountant to clarify the employment dates of the named General Operative. The Respondent then made a written submission confirming the dates of employment of the named colleague and that he was employed subsequent to the Complainant, from 11th July 2018 to 9 November 2018. This colleague was retained on the same site for 1 further week then sent to another site for 3 weeks, where he carried out tape and joint work.

It is clear that the Respondent retained a General Operative who has lesser service than the Complainant for 1 more week on the same site. There was no consultation with the Complainant in relation to the selection process nor was he given an opportunity to clarify his skills. I accept the other General Operative has other skills which were required to work on the other site. There is an onus on an employer to act reasonably in dealing with a redundancy situation. The grounds on which the employer relies to justify its redundancy were never outlined to the Complainant. I find that the Complainant was unfairly selected for dismissal and lost 1 week’s wages as a result. I recommend payment of one further week’s wages of 1,160.40 euro gross financial loss.

I find that the Complainant was unfairly selected for dismissal and lost 1 week’s wages as a result. I recommend payment of one further week’s wages of 1,160.40 euro gross financial loss.  

Unfair dismissal, selection, custom and practice in construction industry, Last in first out, different skills