ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00019942

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/09/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant was employed as a scaffolder with the Respondent.

The complaints refer to an underpayment of holiday entitlements, a failure for the Respondent to provide for a terms of conditions of employment, penalisation under the Safety, Health and Welfare Act 2005, and a failure of the Respondent to provide minimum notice of termination. The starting date of the employment was disputed between the parties.

Summary of Complainant’s Case:

CA-00026390-001Complaint under section 27 of the Organisation of Working Time Act 1977- paid holiday/annual leave entitlement

The Complainant maintained that he commenced employment on the 2nd July 2018, where for the first five weeks of work he was paid in cash. He maintained he subsequently received pay cheques from the week commencing the 7th of August 2018. He submitted that he was dismissed on the 12th December 2018 and he only received his holiday entitlements from the period of the 7th August to the 12th December 2018 and not from the 2nd of July 2018.

CA-00026390-002 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant submitted that he never received written statement of his terms of conditions of employment.

CA-00026390-005 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant maintained that on the 12th December 2018 while on a work site they were experiencing difficulties with a bricklayer regarding an overloading of a scaffolding. The Complainant submitted that these matters had been ongoing with the bricklayer and on the 12th December 2018, he brought his concerns to the site boss who failed to address the matter.

The Complainant submitted that he subsequently spoke to the bricklayer not to overload the scaffolding, but this had no effect. As a consequence of the lack of action from the site boss the Complainant decided that he could no longer work on the site due to the unsafe practice. As a scaffolder he felt he may be held responsible should an accident occur with the scaffolding. He maintained that his responsibility was to construct the scaffolding and to sign off the appropriate documentation.

In his written submission he stated that when he was leaving the site, he met the site foreman and a general labourer at the main gate where they asked him what was happening, and he explained the situation. He further stated to them that he might end up hitting the bricklayer with a hammer that he was holding. The Complainant submitted that both the site foreman and the general labourer laughed, and the site foreman came back with two different types of hammers and asked him to take his pick in a joking manner. The Complainant advised that he wished him good luck and left the site.

The Complainant contended that about 20 minutes later he received a call from a manager of the Respondent who asked him what happened and when he explained to him what had happened he was asked why did he not tell the bricklayer to get off the scaffolding.

The Complainant advised that he also tried to make contact with the Director of the business and after some attempts he eventually spoke with the Director at lunch time on the 12th December 2018. The Complainant explained what happened to the Director who then advised the Complainant that he was being dismissed and he would get his P45. The Complainant maintained he was told by the Director that there were other issues so they decided to let him go.

The Complainant maintained that there was no procedure to investigate what happened that day, and he was dismissed without any due process. He maintained that the reason for his dismissal was because he had raised a health and safety matter regarding the scaffolding. The Complainant contended that rather than dealing with the safety matter the Respondent dismissed him. He therefore maintained he had been penalised by way of dismissal for raising a genuine health and safety concern.

CA-00026390-006 under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 

The Complainant submitted that his contract of employment was terminated without being provided with the statutory notice period.

Summary of Respondent’s Case:

CA-00026390-001 Complaint under section 27 of the Organisation of Working Time Act 1977- paid holiday/annual leave entitlement

The Respondent maintained that the Complainant was not employed until the 7th August 2018. The Complainant presented payslips to support that, and submitted that the Complainant accepted employment from that point, was paid appropriately, and was provided with all his holiday entitlements. The Respondent denied that the Complainant was employed prior to that date. The Respondent submitted that any arrangements that may have been arranged were not made by the company and that the employment started on the 7th August 2018.

The Respondent acknowledged no contract of employment was issued to the Complainant confirming the start date, but it submitted correspondence it issued to its accountant on the 7th of August instructing the accountant to put the Complainant on the payroll at that stage.

The Respondent also submitted that the Complainant had met with Social Welfare and they had received a letter from social welfare where the letter noted the Complainant had confirmed his start date was the 7th of August 2018.

CA-00026390-002 Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The Respondent acknowledged that it did not provide written terms of conditions of employment to the Complainant.

CA-00026390-005 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Respondent denied that the Complainant was penalised due to a health and safety matter. It maintained that there had been previous issues with the Complainant regarding his aggressive behaviour on site and provided evidence that on the 5th December 2018 while working on another site the Complainant was verbally abusive and threatened to kill the site Health and Safety Officer.

Following that incident, the Respondent submitted the Complainant had made four calls to the office of the Health and Safety Officer’s employer where the Complainant was increasingly aggressive towards members of staff. The Respondent submitted that the Complainant told one member of staff that he intended to “drop” the individual concerned.

A report was received by the Respondent about the Complainant’s behaviour and as a consequence the Respondent redeployed the Complainant to another site and issued him with a formal written warning regarding his behaviour.

The Respondent maintained that on 12th December 2018 the Complainant again behaved aggressively towards a bricklayer on site where he threatened the bricklayer. The Site Engineer received a report about the Complainant’s behaviour and reported this to the Respondent. The Respondent advised this complaint was subsequently confirmed by an email on 27th December 2018.

The Respondent maintained that the Complainant having threatened to use his hammer against the bricklayer had left the site. It argued that the Complainant subsequently contacted its Director by phone. The Respondent maintained that the Complainant had become very angry and aggressive toward the Director and due to the seriousness of the matter, and the attitude of the Complainant, the Respondent felt it had no other option but to terminate the Complainant’s employment on the grounds of gross misconduct. Having considered what had occurred the Director advised the Complainant that in light of what had happened and due to previous events that he was being dismissed. The Respondent therefore acknowledged that the Complainant was summarily dismissed due to his repeated aggressive and threatening behaviour on two sites during December 2018. The Respondent acknowledged that the conversation on the phone ended when the Complainant was advised of his dismissal and the Complainant stated that he would see the Respondent in court.

The Respondent submitted that it had issued a written warning to the Complainant on the 7th December 2018 for the event on the 5th December, 2018 and subsequently issued a letter of dismissal to the Complainant for the second occurrence.

The Respondent maintained that at no time did the Complainant raise issues with respect to his working conditions, nor had he raised a serious health and safety risk. The Respondent acknowledged that the Complainant had mentioned issues relating to difficulties he was having with a bricklayer, but that no formal safety concerns had been raised. The Respondent further submitted that following the Complainant’s dismissal on the 12th December 2018 the Complainant had contacted the Health and Safety Authority and complained that certain bricklayers who were not qualified were stripping scaffolding on the site. As a consequence, the Health and Safety Authority wrote to the Respondent on the 12th December 2018 querying the situation and the Respondent replied by letter to the Health and Safety Authority on the 14th December 2018 confirming that their entire scaffolding staff had their scaffolding tags and GA3 forms up to date, and that the matter was not investigated further by the Health and Safety Authority.

The Respondent submitted that the Complainant’s dismissal was wholly as a result of his aggressive behaviour which had caused him to be removed off one site on the 5th December 2018, and subsequently to further aggressive behaviour on the 12th December 2018 on a different site not only towards the bricklayer and the site boss, but also towards the Respondent’s Director on the phone on the 12th December 2018.

The Respondent acknowledged that there was no formal investigation of the incident of the 12th December 2018 and the Complainant was not asked to respond specifically to the allegations of his misconduct. It also maintained that the Complainant would have been aware of the correct way to raise a serious health and safety concern and therefore it submitted that the health and safety concern that was raised to HSA only occurred after the dismissal and that the Complainant was seeking to rely on an alleged act of penalisation to seek an unfair dismissal as he had less than 12 month’s service and therefore did not qualify under the Fair Dismissals Act.

CA-00026390-006 under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent contended that the Complainant was dismissed due to his repeated aggressive behaviour which amounted to summary dismissal. As the Complainant’s behaviour amounted to Gross Misconduct and where a summary dismissal occurred the Respondent maintained the Complainant was not entitled to his statutory notice period.

Findings and Conclusions:

CA-00026390-001 Complaint under section 27 of the Organisation of Working Time Act 1977- paid holiday/annual leave entitlement

Section 19(1) of the Organisation of Working Time Act 1997 states the statutory leave entitlements an employee should be provided.

Having considered the evidence presented I find that the start date of the employment was the 7th August 2018 as this was when the Complainant was placed on the payroll. There is no record of his payment prior to that date.

I am satisfied that the Complainant did receive his annual leave entitlements from the 7th August 2018 where he acknowledged the same in his evidence and therefore, I do not uphold the complaint that the Complainant did not receive his statutory entitlements for annual leave under the Organisational Working Time Act.

CA-00026390-002 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment

Having considered the evidence presented I find that the Respondent failed to meet its obligations under the Terms of Conditions of Employment (Information) Act 1994.

CA-00026390-005 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Under Section 27 of the Safety, Health and Welfare Work Act 2015 penalisation includes any act or omission by an employer or person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. Penalisation includes a dismissal. IN accordance with the Act, an employer should not penalise or threaten penalisation against an employee for acting in compliance with the relevant statuary provisions; for performing any duties or exercising any right under the relevant statuary provisions; in making a complaint or representation to his or her safety representative or employer or the authority, as regards to any matter relating to the safety, health or welfare at work.

Subject to the steps taken by an employee, appropriate account should be taken of all the circumstances and the means and advice available to him or her at the relevant time, and where, in circumstances of danger which the employee has reason to believe to be serious and eminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

There is a clear conflict of evidence between the parties. The Complainant indicated that his dismissal was a result of raising a health and safety issue regarding scaffolding on the 12th December 2018, and a failure of the Respondent to deal with this properly which left him with no option but to leave the site, and because of this action he has been penalised and dismissed. On the other hand, the Respondent maintains that the dismissal was solely as a result of the on-going serious and gross misconduct of the Complainant where, within the space of one week, two serious incidents had taken place and it had no option but to dismiss the Complainant who had less than six month’s service.

Having considered the evidence, I have to decide which version of events is more credible. In that regard, whilst I acknowledge the Respondent did not follow due process with regards to its decision to dismiss the Complainant, I am satisfied that the antecedent to the decision to dismiss clearly related to the behaviour of the Complainant on the 5th December 2018, and his subsequent aggressive behaviour on the 12th December 2018. I acknowledge no formal process was instigated to establish what happened, but equally I am satisfied that no formal safety concern was raised by the Complainant that had a direct or indirect consequence or influence on the decision of the Respondent to dismiss him on the 12th December 2018. Moreover, I am not satisfied the Complainant used the means and advice available to the him, or that the incident alleged of at the relevant time was such a danger which the Complainant had reason to believe to be so serious and eminent that he could not reasonably have been expected to avert without leaving, or was such that it was reasonable for him to refuse to return to his place of work. In effect what occurred was an argument between the Complainant and his colleagues and where the Complainant did not follow proper or appropriate procedures to report his concerns.

I am therefore satisfied that the sole basis of the dismissal was the attitude of the Complainant towards his fellow workers and the Director. I therefore conclude the dismissal was not as a consequence of a health and safety matter.

CA-00026390-006 under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section S4(2)(a) of the of the Minimum Notice & Terms of Employment Act, 1973 requires that the minimum notice to be given by an employer to terminate the contract of employment of his employee where the employee has been in the continuous service of his employer for less than two years shall be one week.

In this case the Complainant was dismissed for gross misconduct. However, the evidence provided supports the Complainant was dismissed during a telephone conversation with the Director and without being subject to a disciplinary procedure. I therefore conclude that the Complainant was dismissed without proper notice or procedures and find the Respondent is in breach of it obligations under Section 4(2) of the Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00026390-001 Complaint under section 27 of the Organisation of Working Time Act 1977- paid holiday/annual leave entitlement

In light of the commencement date of the Complainant, which was 7th August 2018, I find that the Complainant was provided with his annual leave entitlements. I therefore decide the complaint is not well founded.

CA-00026390-002 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

In accordance with Section 7 of the Act I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.   

I therefore order the Respondent to pay to the Complainant compensation of two weeks pay.

CA-00026390-005 Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 28 of the Safety, Health & Welfare at Work Act, 2005requires that I make a decision in relation to a complaint of a contravention of section 27 of that Act.

Having considered the matter I am satisfied that the Respondent’s decision to dismiss the Complainant was not based on one of the protected acts as described in Section 27(3) of the Act. As I have found the decision to dismiss the Complainant was solely based on the aggressive attitude and behaviour of the Complainant I therefore do not uphold this complaint.

CA-00026390-006 under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act.

As I have found the Respondent is in Contravention of the Act and I direct that the Respondent pay to the employee compensation of one weeks’ pay.

Dated:   10th February 2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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