Complainant

Respondent

Anonymised Parties

A Carpenter

A Construction Company

Representatives

Andrew Freeman Seán Costello Solicitors

Brian Reidy Reidy and Foley 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-00028805-001

31/05/2019

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

CA-00028805-002

31/05/2019

The Complainant was employed by the Respondent Construction firm from the 2nd October, 2017 to the 20th February, 2019. The owner of the Respondent is a brother of the Complainant. The Complainant contends that he was unfairly dismissed and this is denied by the Respondent. At the time of the dismissal the company had approximately 8-10 employees and also engaged sub-contractors. The Complainant has also claimed that he did not receive a written contract or any written terms of employment. The Complainant’s complaint was received by the WRC on 31/5/2019.

The Complainant was represented by Sean Costello Solicitors and Mr Padraig Lyons BL.

The Respondent was represented by Reidy & Foley Solicitors and Mr Richard Downey BL.

In accordance with Section 6 (1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant and that the allegation of unfair dismissal was denied. The Respondent outlined that:

·         the building phase under construction in Autumn 2018 was practically completed on 21/12/2019;

·         that the Respondent was due to commence a second phase of construction in the area in January 2019 but that due to a land/construction dispute with a shareholder this did not materialise, that this was unforeseen and resulted in work being unavailable at the time for a number of the Respondent’s employees including the Complainant;

·         that at the time the Respondent appraised the Complainant of the difficulties, that the employees were well aware of the situation regarding the difficulties with phase two of the proposed construction and in particular, that the Respondent had advised the Complainant of the difficulties prior to Christmas 2018;

·         that the shareholder with whom the Respondent had a difficulty was a relative of both the Complainant and the Respondent, that the Complainant had advised he did not wish to intervene in their dispute and that the Respondent accepted this;

·         that the Respondent was successful in obtaining some other work in January, 2019;

·         that the Respondent took the Complainant and his partner for dinner on the 30th December, 2018;

·         that the Respondent had a conversation with the Complainant in the latter’s house on the 3rd January, 2019, that this conversation has been entirely misconstrued by the Complainant as purporting to effect a dismissal and that this was strenuously denied by the Respondent;

·         that the Respondent texted the Complainant @19.29 on the 23rd January, 2019 that it was unlikely construction would proceed in the second phase originally scheduled for January 2019 and that another location was also affected. The text of the 23rd January, 2019 @19.29 from the Respondent to the Complainant included the following statement:

“…..you should start looking for something else now…..The long and the short of it is [second phase] will not be up and going shortly or either will [another location]. I’m going to start letting off more lads over the next few weeks. I’m so sorry ok but absolutely nothing I can do.….” . The Respondent submitted that at this time, no decision had yet been made to let any individual employees go or to create any specific redundancies;

·         that the Complainant texted the Respondent back @21.08 on the 23rd January, 2019 and stated:

“I was never coming back to you anyway. Ur agreement wit [shareholder] is ur agreement….nothing to do with me”;

·         that as the Complainant was a brother of the Respondent’s owner, his pay was continued up until 20/2/2019 although he was not required to attend for work;

·         that the Complainant was renting a house owned by the Respondent and that there was money owed to the Respondent in respect of matters connected with the house and that the Complainant was also paid in lieu for improvements he carried out on the house.

The Respondent maintained that the Complainant did not return to work on the 7th January, 2019 and did not make himself available for work after the 7th January, 2019 but that the door was open to him to do so. The Respondent stated that the Complainant requested his P45 on the 28th March, 2019 for his new employer. The Respondent stated that the Complainant was advised as to how to obtain this on line and as regards transferring his tax credits to his new employer.

It is the Respondent’s position that notwithstanding the work situation, he had hoped the Complainant would not have to be let go and that no employees were actually made redundant at the time the Complainant notified the Respondent that he was not coming back to work. The Respondent maintained that a few employees left but were successful in securing other work. The Respondent maintained that the Complainant resigned on notice to his employer, that his salary and all entitlements due to him, were paid in full up to the 20th February, 2019, that the Complainant was not dismissed and nor was he made redundant or unfairly selected for redundancy. The Respondent’s position is that he acquiesced in response to the Complainant’s resignation.

The Respondent maintained that as there was no dismissal, the Complainant was not entitled to any relief for unfair dismissal and nor had any grounds for constructive dismissal been advanced by the Complainant.

The Respondent further maintained that the Complainant had made little or no effort to seek other work and that there was no evidence of any meaningful attempt at mitigation on his part.

A member of the Respondent’s administrative staff gave evidence of contact from the Complainant in relation to his seeking his P45 and P60 and setting up a revenue account for him. I was also furnished with various text messages exchanged between the Complainant and the Respondent’s staff dated March and May 2019 in relation to these matters.

The Complainant disputed the case put forward by the Respondent. The Complainant stated that he commenced working for the Respondent in October 2017 and was promoted to the position of Foreman in or around October/November, 2018. The Complainant maintained that unhappy differences arose between him and the Respondent due the Complainant’s unwillingness to become involved in the dispute between the Respondent and the shareholder. The Complainant maintained that the Respondent told him that if he didn’t involve himself in this matter there would be no work for him in January, 2019.

The Complainant outlined that the Respondent called to the house he was renting from the Respondent on the 3rd January, 2019 and advised him that he had let go two other employees and that he had to let the Complainant go as well. According to the Complainant the Respondent stated “I had to let you go”. When the Complainant asked him why, the Respondent advised him to ask the shareholder with whom he was in dispute. The Complainant maintained that he was dismissed as and from this date the 3rd January, 2019 and told there was no work for him.

The Complainant’s partner gave evidence at the adjudication hearing. She stated:

·         that she attended the meal with the Complainant and the Respondent on 30/12/18 which she maintained was to soften up matters before the Complainant was dismissed;

·         that she was present in the house on the 3rd January, 2019 when the Respondent called and was also present for the discussion between the Complainant and the Respondent;

·         that the Respondent had said he didn’t have work for the Complainant and that he would pay him up until the end of February ’19. She said the Complainant asked the Respondent if he was joking and that the Respondent replied that there was nothing he could do and to ask the shareholder with whom the Respondent was in dispute;

·         that the visit of the 3rd January, ’19 was during the Christmas holidays and that because of the discussion the Complainant did not return to work on the 7th January, ’19;

·         that on the 14th January, 2019 she rang the Respondent’s office to seek payslips, the Complainant’s P45 and a letter confirming that the Respondent had been let go which was for social welfare purposes. This letter was furnished at the adjudication hearing and the Respondent confirmed it was authentic. The letter is dated the 30th January, 2019 and was signed by a Director of the Respondent’s firm. The text of the letter is as follows:

“30th January 2019

To Whom It May Concern

On behalf of [Respondent] I wish to confirm that [the Complainant] is no longer employed by our company. His employment was terminated on the 3rd of January 2019”

The Complainant confirmed he is a qualified carpenter. He maintained that he had sought other work unsuccessfully though he had got Saturday night work in a hotel for which he was paid €80/night. The Complainant furnished various letters dated November, 2019 and one undated in support of his contention that he was actively seeking other work. These included applications for positions in Carpentry and Building, Plastering and Maintenance, Groundworks and a Public House. Various letters stated that the Complainant had been in contact on numerous occasions seeking work.

The Respondent’s legal representative put it to the Complainant that he was fully aware that the second phase of the construction project could not proceed unless the dispute between the Respondent and the shareholder was resolved. This was denied by the Complainant who said he was aware of difficulties in October/November 2018 but not after that, that he wasn’t involved in the matter and that he did not know what the dispute was about. The Complainant added that the Respondent wanted him gone and that he had said to the Respondent “if you want to fire me, fire me”.

The Complainant was questioned by the Respondent’s legal representative as to why he didn’t seek other work with the Respondent at a later date. In response the Complainant stated that it had been made clear to him there was no work for him in the Respondent’s firm and that at the time, he was “depressed out of his head”. As regards the Complainant’s efforts to secure alternative employment, the Respondent’s legal representative put it to him that he had not obtained the appropriate licence for security work in a public house, that the letters of job applications furnished at the adjudication hearing were mostly dated November, 2019 some 11 months after he left the Respondent’s firm, that he had shown no evidence of securing alternative employment in the intervening period including in March 2019 when he had sought his P45 and that the application letters had been put together solely for the purpose of the adjudication hearing. This was denied by the Complainant who maintained that the letters of application were good and sufficient evidence of his attempts to mitigate his losses.

In a further response to the Respondent’s legal representative, the Complainant stated that he had not mentioned the Respondent’s visit to the house on 3/1/19 in his text to the Respondent of the 23rd January, 2019 as at that point he was still employed and being paid.

The Complainant maintained that he was dismissed on the 3rd January, 2019 because he would not intervene in the dispute between the Respondent and the shareholder and that he was not afforded any fair procedures. The Complainant maintained that the Respondent had told him he would be a casualty of this dispute. He stated that there would have been no need for him to look for a P45 on the 14th January, ’19 if he had not been dismissed at that time. The Complainant confirmed that he was paid up until the 20th February, 2019 but that some of this was reimbursement for improvements he had made to the house rented from the Respondent. The Complainant submitted that the Respondent’s text of the 23rd January 2019 was after the dismissal and was only for show in case matters went to court and that the true situation was as outlined in the letter from the Director of the Respondent’s firm of 30/1/19. He stated that his net pay at the time of his dismissal was €700/week.

The fact of whether or not a dismissal took place is a key issue of contention between the parties. In this regard, Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as:

a)      the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

b)      the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

c)       ..….”

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as defined above. In this regard, I have carefully evaluated the evidence adduced at the adjudication hearing as regards the accounts of what took place on the 3rd January, 2019, the texts exchanged between the Complainant and the Respondent on the 23rd January, 2019, the requests for the P45 and other documentation on the 14th January, 2019 and the letter of the 30th January, 2019 which included the statement that “[The Complainant’s] employment was terminated on the 3rd of January 2019”. I have also considered the evidence of the Complainant’s partner that this letter was requested for social welfare purposes. The 30th January letter was addressed “To Whom It May Concern”. In my view this open address indicates that the letter was intended as a document that could be furnished to other parties including a government department. The Respondent accepted the authenticity of this letter at the adjudication hearing. In all the circumstances, I consider that this letter must be taken to represent the official position of the Respondent. Taking all evidence into account, I decide there was a dismissal effective from the 3rd January, 2019.

Having decided that the Complainant was dismissed, I must now consider whether the dismissal was unfair.

Section 6(1) of the Unfair Dismissals Act [1977-2017] deems that the burden of proof is on the Respondent employer to demonstrate that a dismissal was not unfair. Section 6(1) provides that: “…….the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances wherein the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” and these include matters such as conduct, competence and redundancy.

Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Unfair Dismissals Act [1977-2017] provides that in determining whether a dismissal is unfair, regard may be had:

a)      “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b)      to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

The Complainant has stated he was dismissed due to his refusal to become involved in the dispute between the Respondent and a shareholder, that his employment was a casualty of that dispute and that he was not afforded fair procedures. The Respondent has refuted this, has strongly disputed there was a dismissal at all and has stated that at the time there were no redundancies. Having decided there was a dismissal and having considered the conflicting accounts in relation to what occurred, I consider that the Respondent has not advanced any substantial grounds justifying the dismissal as provided for under the Unfair Dismissals Act [1977-2017]. In all the circumstances, I consider that the Respondent has acted unreasonably and has not discharged the burden of proving the dismissal was fair. The complaint of unfair dismissal is therefore well founded.

I must now consider the matter of redress. In that regard, Section 7 of the Unfair Dismissals Act [1977-2017] provides as follows:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following [the adjudication officer or the Labour Court], as the case may be, considers appropriate having regard to all the circumstances:

a)      re-instatement ……, or

b)      re-engagement……, or

c)       (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances………

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a)      the extent (if any) to which the financial loss referred to in that subsection was attributable  an act, omission or conduct by or on behalf of the employer,

b)      the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

c)       the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, …...

d)      the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister……”

Having assessed all the information I consider that the Complainant has suffered financial loss as a result of the unfair dismissal. However, Section 7(2)(c) above also requires me to consider the steps taken by the Complainant to mitigate his loss. In this regard, the Complainant has stated that he was very stressed after he was dismissed and that he had been advised by the Respondent there was no future employment prospects for him in the company. The Complainant stated that he had obtained work on a Saturday night for which he was paid €80. The Complainant also produced copies of letters from various employers stating that he was looking for work. The Complainant confirmed he is a qualified carpenter.

The Respondent submitted that his text to the Complainant of the 23rd March, 2019 left the door open to the Complainant to seek further work with the Respondent which he had not done. The Respondent pointed to the Complainant’s response of the 23rd March which was that he “..was never coming back to you anyway”. The Respondent argued that the letters furnished by the Complainant from the other companies were only produced for the purpose of the adjudication hearing as evidenced by the fact they are dated just prior to the hearing. The Respondent stated that the Complainant was paid up until 20/2/20, that all his due entitlements were paid and that the he has not made any or adequate efforts to mitigate his loss.

In considering this matter and given the breakdown in relations between the parties, I accept that it would have been difficult for the Complainant to return to the Respondent’s employment and particularly when he considered he was not wanted there. Whilst he has shown evidence of seeking other employment, I am mindful that he is a qualified carpenter and that employment in the construction sector has significantly improved.

An issue arose in the course of the adjudication hearing in relation to monies expended on the house the Complainant was renting from the Respondent and evidence was given that some of the monies paid to the Complainant was reimbursement for improvements made to the house. I consider that dealings between the Complainant and the Respondent in relation to this to be a private matter between the parties and outside the scope of my jurisdiction.

Summary of Complainant’s Case:

The Complainant stated that he did not receive a statement in writing of his terms of employment.

Summary of Respondent’s Case:

The Respondent accepted that he had not furnished the Complainant with a written contract or any written statement of his terms of employment.

Findings and Conclusions:

Section 3(1) of the Terms of Employment (Information) Acts [1994-2019] provides that “an employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing..…particulars of the terms of the employee’s employment”.

Section 3(4) of the Terms of Employment (Information) Acts [1994-2019] requires that “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

In light of the evidence, this complaint is well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have considered the remedies available and I decide that reinstatement or re-engagement of the Complainant are not practical options and that compensation is the appropriate remedy. Having assessed all the information, I consider it just and equitable to award the Complainant redress of €5,600 being the equivalent of 8 weeks wages.

I award the Complainant €2,800 based on four weeks net wages.

A Carpenter V A Construction Firm