Complainant

Respondent

Parties

Ian  Hales

Dallen & Co Mechanical Services Limited Dallen Mechanical

Representatives

 Unite the Union

Act

Complaint Reference No.

Date of Receipt

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

CA-00040152-001

29/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040152-002

29/09/2020

The Complainant claims that he was summarily dismissed for challenging his employer’s decision to sign off on poor work on a project for a third-party client.

The following is a summary of the Complainant’s case.

The Complainant worked as a Plumber for the Respondent from 19 June 2018 until his dismissal on 6 August 2020. He claims that his basic pay was in line with the terms of the mechanical engineering contractor sector, circa. €950 gross per week and €710 net plus he was regularly paid overtime bringing this expected weekly gross pay to circa €1,166.

The Complainant said that he worked on a number of projects for the Respondent for a large client when his employment was terminated. He said that he was familiar with the client as he had worked on the same site for other contractors, for about four years previously, prior to him working with the Respondent.

The Complainant said that on 6 August 2020 he was working on high purity copper welding on 2- and 4-inch pipe in the workshop, where length of pipes is fitted/ welded together before being transferred to and installed on the main site.

He said that he raised concerns about the quality of welding a particular section of pipe with his employer, Mr. A. He explained that, in his view, the inside of the pipe was tarnished and would fail further inspection on the main site. He contends that Mr. A told him to “weld it up and send it over”. He was not happy and knew that the standard of work would reflect poorly on him, so he took advice from a more experienced plumber on the project concerning the weld in question. When Mr. A returned to the workshop, he approached the Complainant and challenged him for “going behind his back” regarding the concerns about the weld and was consequently summarily dismissed there and then on the spot.

Later that evening the Complainant sent a text message to Mr. A opposing his dismissal in such a manner and seeking holiday pay, notice and all other rights and entitlements. He received a brief reply advising that he would receive all his entitlements the following week. The following week he received his back week and holidays owed. However, he said that he did not receive notice or redundancy pay.

He contends his dismissal was dis-proportionate and procedurally unfair in the circumstances. He contends that he has suffered significant financial losses due to his dismissal and in not receiving his notice due or payment in lieu of the 1973 Act as follows:

A. €1,166 per week x 6 weeks (wk ending 14/08/20 to wk ending 18/09/20) = € 6,996

B. Two weeks’ notice due as per the 1973 Act - €1,166 x 2 = € 2,332

A+B = €9,328

The Respondent did not engage in the process and did not attend at the hearing.

CA-00040152-001 – Complaint under the Unfair Dismissals Act, 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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.

…

(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.

…

(6) 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 (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(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 by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

I am satisfied that the Respondent was on notice of the hearing. However, it did not attend the hearing and therefore having regard to the Complainant’s uncontested evidence, I find that the following key facts have been established in relation to the complaint:

The Complainant commenced employment with the Respondent on 19 June 2018 as a Plumber.

The Complainant worked satisfactorily for a period of time, without any issue.

The Complainant was challenged over his decision to ask an experienced plumber on site concerns he had about a piece of work.

The Complainant was summarily dismissed on 6 August 2020 with any notice.

The Complainant mitigated his losses and returned to the workforce within 6 weeks.

Having considered the uncontested evidence where the Complainant claims that the Respondent dismissed him without reason or procedure, I find that the Complainant was not provided with any fair or reasonable opportunity to address the Respondent’s concerns in relation to his decision to seek advice on the quality of a piece of work. In the circumstances, I find that there was a manifest failure by the Respondent to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the Complainant’s employment. I find that the Complainant’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000).

The following are the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1.       the details of the allegations or complaints be put to the employee concerned.

2.       the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.       the employee concerned is given the opportunity to avail of representation; and

4.       the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

I am satisfied that an employer is required to act fairly in all situations. This Code of Practice is a template that an employer should consider when making fundamental decisions in relation to its employees. Having regard to the foregoing, I find that the dismissal of the Complainant was unfair on procedural grounds.

On the basis of my findings above I declare the complaint is well founded. I direct the Respondent to pay the complainant compensation of €6,996 (six thousand, nine hundred and ninety-six euro) within 42 days of the date of this Decision.

CA-00040152-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Law

Section 4 - Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

…

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

…

I find the Complainant started employment on 19 June 2018 and his employment was terminated without notice on 6 August 2020.

On the basis of my findings, I declare the complaint is well founded. I direct the Respondent to pay the Complainant two weeks’ notice due to him as per the 1973 Act, namely, €2,332 (Two thousand three hundred and thirty-two euro).

CA-00040152-001 – Complaint under the Unfair Dismissals Act, 1977

On the basis of my findings above I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €6,996 (six thousand, nine hundred and ninety-six euro) within 42 days of the date of this Decision.

CA-00040152-002 - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

On the basis of my findings above, I declare the complaint is well founded. I direct the Respondent to pay the Complainant two weeks’ notice due to him as per the 1973 Act, namely, €2,332 (Two thousand three hundred and thirty-two euro).

Unfair Dismissals Act - Minimum Notice & Terms of Employment Act – well founded – compensation