Complainant

Respondent

Anonymised Parties

A Roofer

A Roofing Company

Representatives

In person

Victoria Barrett B.L. instructed by O’Reilly Thomas Solicitors

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-00026662-001

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00028047-001

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028047-002

29/04/2019

The complainant was employed by the respondent from 8th January 2016 until his dismissal on 28th February 2019. The complaint was submitted to the Workplace Relations Commission (WRC) on 28th February 2019 and relates to alleged Unfair Dismissal. A duplicate Unfair Dismissal complaint (CA-00028047-001) was submitted to the WRC on 29th April 2019 in addition to a complaint alleging a breach of the Terms of Employment (Information) Act, 1994.

The respondent stated that the complainant was initially employed on 10 weeks work experience and subsequently on the Jobs Plus Incentive Scheme which ended in November 2018. The respondent stated that the complainant then became an employee and remained in its employment until 28th February 2019.

The respondent outlined a number of issues with the complainant’s behaviour while employed on the Jobs Plus Scheme and also while directly employed. A Principal of the respondent stated that the complainant had a disrespectful attitude on occasion and had difficulty in following instructions. The respondent also stated that the complainant openly questioned the employer’s instructions and continued to behave inappropriately at work.

The respondent stated that the issue came to a head on or about 26th February 2019. The respondent contends that while setting up a job, the complainant was not following instructions and was being generally disrespectful and making derogatory comments to the employer as well as questioning the employer’s ability and professionalism. The respondent outlined that the complainant was sent home for the day as the employer had concerns regarding health and safety and working on a roof during these interactions with the complainant.

The respondent stated that having received insulting text messages from the complainant the following day and having formed the view that a functioning working relationship was not possible, the complainant’s property was returned to him and the employment was terminated.

The respondent acknowledged that no procedures were used in relation to the dismissal and accepted the procedural unfairness of the dismissal in that regard.

The complainant outlined a number of issues that arose in advance of his dismissal. The complainant stated that he gave his employer advice on numerous occasions on the best way to carry out certain tasks and that he himself had the necessary equipment that would assist in certain jobs being completed safely and more efficiently. The complainant stated that his advice was mostly ignored but on one occasion the employer instructed him to get his equipment to assist and the complainant refused. The complainant stated that he was then sent home and was told the next day that he was dismissed. The complainant stated that his property was returned to his house and left outside when there was no-one there. The complainant outlined that he had made every effort to assist in building the business and had done many tasks such as Website development, using his own tools, compiling a safety statement and formulating policies etc as well as doing some administration work while on sick leave. The complainant outlined that he had not received a pay rise in four years and was paid a lot less than others in comparable employments. The complainant contends that he was unfairly dismissed and is seeking compensation in relation to his complaint.

The principal of the respondent and the complainant both gave direct evidence at the adjudication hearing. The respondent accepted that the complainant had been dismissed unfairly on a procedural basis as disciplinary procedures had not been used prior to the dismissal.

I note the safety critical element of the business the respondent is involved in and the importance of remaining focused while working at heights and on roofs. The respondent stated in evidence that the complainant’s attitude and behaviour was becoming a distraction and that the respondent felt it was becoming a safety issue and a proper working relationship was no longer possible.

The complainant, in his evidence, confirmed that he provided ongoing advice to the respondent, but the advice was frequently ignored despite his belief that his suggestions should have been implemented. The complainant accepted that he had refused to get his equipment when asked to do so by the respondent and stated that on the day in question there was a difference of opinion and he had been sent home for his attitude. The complainant denied that he had become annoyed or had behaved inappropriately during his employment.

The Applicable Law

The Unfair Dismissals Act, 1977.

Sections 6(1) and 6(4) of the Unfair Dismissal Act 1977 at relevant parts state as follows:

6.(1) 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.

6.(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

In all of the circumstances of this complaint and notwithstanding the procedural unfairness of the dismissal, I find that the respondent gave an honest account of its experience with the complainant. I also understand the respondent’s concerns that it was becoming a distraction and a safety issue to have the complainant remain in its employment. It appears that both sides became intolerant of the other and the respondent decided that a working relationship was no longer possible. In the circumstances presented, I find that this decision was reasonable. Accordingly, I find that the dismissal, although procedurally unfair, was substantively fair.

Having considered the submissions and evidence of both parties, I find that the dismissal was procedurally unfair but substantively fair. I award the complainant €500 in compensation in relation to the procedural unfairness of his dismissal.

The complainant stated that he did not receive written confirmation of his terms and conditions of employment in compliance with the provisions of the legislation.

The respondent did not provide any evidence that it complied with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to the complainant’s employment.

The Applicable Law

Section 3 of the Terms of Employment (Information) Act, 1994 requires that an employee be given a written statement of terms and conditions of employment within two months of the commencement of employment. This obligation was not complied with by the respondent. Accordingly, I find that the complaint is well founded.

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complaint €750 (Two week’s gross pay) in compensation.

Unfair Dismissal, Written terms and conditions of employment