Complainant

Respondent

Anonymised Parties

A Labourer

A Scaffolding Company

Representatives

Rithika Moore Vaderaa BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00026360-001

19/02/2019

The complainant was employed by the respondent on a sub-contracting basis from March 20th until October 22nd 2018, when he said he “went on the books.” He worked as a labourer in a scaffolding company, and he was also required to drive the company’s lorries. His employment ended on February 1st 2019 and there is a dispute about whether he was dismissed or, if he left his job voluntarily.   His complaint is that he was dismissed and that his dismissal was unfair.

At the hearing, the complainant said that he was employed to work as a labourer. He said that the respondent asked him to drive a lorry and that he didn’t have the proper licence for the weight of the vehicle.   On Monday, January 28th, when he was out in the lorry, he said that the Gardaí pulled up beside him and he became nervous. He went back to the company’s yard and he informed the owner that he wouldn’t drive the lorry again.

The next day, Tuesday, January 29th, the complainant went to work and he and a colleague loaded a lorry with scaffolding. It was lashing rain and he said that they both got soaking wet. When he had the lorry loaded, the complainant said he phoned the owner and told him he was going home. Later that day, he said the owner phoned him and said, “we’ll have to leave you out for a few days.”   Later again, he said that he got a phone call from the office manager and she said that there is a letter for him to collect for “the welfare.” He produced a letter showing that he was effectively laid off that day. On Thursday, January 31st, the complainant said that he got a phone call from the owner to ask him to come and collect his wages for the week and to sign some documents. He said that he went to the owner’s house the following day, where he was told, “I’ll have to let you go.”

The complainant produced a second letter dated Friday, February 1st in which the owner stated as follows:

“Due to lack of communication last week, we are sorry that your employment has not worked out as you were on a trial basis.

“If there is anything we can do in the future, please do not hesitate to call us.”

In his evidence at the hearing, the complainant said that he objects to how he was treated, and “the principle of what was done.” He said that, when he was employed by the respondent, he did his work and there were no complaints from his colleagues.   He said that he was never disciplined for any misdemeanour and he feels that he was very badly treated.   He said that he never had a problem with the respondent until he became a direct employee in October 2018.

At the hearing, the owner of the company said that the complainant was employed as a labourer and that he commenced as a directly-hired employee on October 22nd 2018. As a labourer, he was expected to drive the company’s lorry.

In the contract issued to the complainant on October 22nd 2018, the owner stated as follows:

“…these agreements are not stating full time employment, we cannot guarantee a full week’s work as we are pricing for jobs all the time and pushing for contracts, but we cannot predict the coming weeks / months of how work will fair out.”

On Tuesday, January 29th 2019, a letter was issued to the complainant which confirmed that he was laid off:

“This letter is to let you know that work seems to be slacking lately. Due to lack of contracts being confirmed we feel we have no alternative but to reduce your days till/when work picks back up.

“Hopefully contacts will start coming in soon.”

On that day, the owner said that the complainant was due to drive the lorry with scaffolding to Killiney, but he said that he didn’t want to go. The owner said that that was no problem. The complainant and his colleague said that they were soaking wet after loading the lorry and they went home.

On Friday, February 1st, the owner said that he issued the complainant with a letter confirming that his “trial” had not worked out. At the hearing, when I asked him why the complainant had not worked out, he said that work had become slack and he explained that to the complainant when they came back after Christmas. He said that there were a few issues with the complainant, such as leaving sites early, not turning up and not communicating with the owner and office manager about issues. The owner said that on one occasion, instead of bringing the lorry back to the yard, the complainant left it at the owner’s house a few miles away.

The owner said that on January 29th, when he gave the complainant the letter, he asked him to sign time sheets, but he refused. The owner said that he told the complainant to “come back to me when you want to talk,” but the complainant said something along the lines of, “I suppose that’s it so, shove your job.”

On behalf of the owner, Ms Vaderaa said that the complainant voluntarily terminated his employment and that he was paid his entitlements on February 1st 2019.   The “lack of communication” referred to in the letter of February 1st, is a reference to the complainant’s comment to the owner, to “shove your job.”

From the statements of the parties at the hearing of this dispute, it is apparent that there is no clear agreement regarding the cause of the complainant’s termination of employment, or which of the two, the employer or the employee, initiated the termination. The respondent’s case is that the complainant told him to “shove his job” and, by this statement, he resigned.   The complainant’s case is that the letter of February 1st is confirmation that his employment was terminated by the owner.

It is clear from the evidence that relations between the respondent and the complainant were not exactly harmonious and the respondent’s reference to “lack of communication” is, from what I can interpret, a reference to the complainant’s failure to talk to the owner about the work he was prepared to do.

The contract of employment issued to the complainant on October 22nd 2018 provides that it will be reviewed in three months. The letter issued to the complainant just over three months later, on February 1st 2019, states,

“Due to a lack of communication last week, we are sorry that your employment has not worked out as you were on a trial basis.”

From this, I am satisfied that the respondent dismissed the complainant at the end of a trial period and that he was dismissed because of the difficulties the two had communicating with each other.

I have observed that, in many instances where a worker goes from being self-employed, or a sub-contractor, to becoming a direct employee, the transition is sometimes problematic. For a person who has effectively, been their own boss, it can be difficult to accept direction. The complainant said that he never had any problems with his employer until he “went direct.” It was evident at the hearing that relations between the owner and this former employee had broken down and that there was fault on both sides.

The responsibility to manage the employment relationship falls squarely on the employer and, regardless of the fractious nature of a relationship between them, an employee at risk of dismissal is entitled to the benefit of fair procedures. Before he was dismissed, the complainant should have been informed of the reasons why his dismissal was being contemplated. As he had very short service, it would not have been appropriate to go through each stage of a disciplinary process; however, the complainant should have been given an opportunity to address the issues that were causing concern. Regardless of how unhappy a person might be in a job, no one wants to be dismissed.   If someone had explained to him what was required to ensure that he remained in the employment of the respondent in the longer term, he may have changed his behaviour, or he may have decided to leave of his own accord. Because of the failure to engage in any procedures, I have to conclude that the dismissal of the complainant was unfair.

I have concluded that the dismissal of the complainant was unfair and not in accordance with any procedures. As he had three months of service before his dismissal, I recommend that the respondent pay the complainant compensation of €750, which, based on the timesheets that were submitted in evidence, comprises approximately two weeks’ pay.

Failure to follow disciplinary procedures