Complainant

Respondent

Parties

Tomasz  Skrzypczak

Eco - Tech Building Solutions Ltd.

Representatives

Mr Tom Kelly, B.L. instructed by   E.A. RYAN & CO. SOLICITORS

 Barry C Galvin & Son present on 9 April 2021, but no appearance by or on behalf of the Respondent on second day of hearing.

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-00033932-001

22/01/2020

This matter was heard by way of Remote Hearings pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 22 January 2020, the Complainant, a Polish Plasterer / Tiler, submitted a total of 5 complaints to the WRC. These covered claims for Unfair Dismissal, Redundancy, 2x Terms and Conditions of Employment, and Discrimination.

The matter first came for remote public hearing on 9 April 2021. I wrote to the Respondent seeking a written submission, but nothing was submitted.

The Complainants legal team had lodged their outline submission prior to hearing.

On the first day of hearing, the Respondent took issue with the timing of the complainant submission and sought an adjournment to respond to this document. A previous request for adjournment tabled on 1 April 2021 had been refused.

At the outset, I refused the Respondent application for postponement and opened the case to the parties.

I worked through the complaint form with the parties. Counsel for the Complainant notified that 4/5 of the complaints were to be withdrawn. The Respondent accepted that position.

The Respondent confirmed the legal title for the Company was correct.

The Complainant clarified that he wished to advance the one remaining claim for Unfair Dismissal and if successful, his preferred remedy was compensation.

The Respondent Solicitor clarified that he had no principled difficulty with a remote hearing, but the respondent witness was on a site in a remote setting and was experiencing technical difficulties. He sought an adjournment on that basis.

It became apparent to me that the Respondent had insufficient IT connection to either present the case or to give evidence. The Complainant consented to the application for adjournment.

  I adjourned the hearing on the following undertakings received from the parties.

1.       The Respondent undertook to submit a responding submission.

2.       The claim for Unfair dismissal was the sole complaint.

3.       Parties were advised that their chosen holy book to facilitate an oath would need to be present in the site of the hearing.

4.       The Respondent resolved to sort out the IT difficulties and Solicitor for the Respondent said that he could get access to a Booth from where he could present the Respondent position.

5.       There would be two witnesses for the respondent and one for the Complainant

6.       The Complainant was requested to provide an updated mitigation and loss spreadsheet.

No evidence was adduced on the first day of hearing.

I undertook to seek a resumed date as early as possible. The resumed date was shared with the parties and the case came back for hearing on 9 November 2021.

On that day, the Complainants legal team were in attendance, but there was no appearance by or on behalf of the Respondent.

The Solicitor for the Respondent had addressed the Administrative Section of WRC on the day before the resumed hearing. He confirmed that he had difficulty with the resumed date as he had acquired a named illness. He was requested to submit evidence of the condition and was advised to make an appearance   at hearing. The Respondent Solicitor addressed the administrative section just prior to hearing and indicated that his client was, in fact attending the hearing.

There was no appearance by or on behalf of the Respondent at hearing, neither was evidence of illness tendered or formal request for postponement made at hearing.

I allowed time prior to the commencement of hearing to facilitate the Respondent attendance. There was a “no appearance “by the Respondent.

The case proceeded in the presence of the Complainant and his legal team.

I checked the Administrative Section within the 5-day window post hearing and there was no further contact from the Respondent.

The case has moved to decision based on a “no appearance from the Respondent or his Representative on the second day of hearing “

The respondent was provided with a copy of the claim form in the case on 29 January 2020. On that day, the WRC notified of the presence of parallel complaints. The Respondent was notified that in accordance with section 101(4)(a) of the Employment Equality act 1998, the complaint lodged under equality legislation would be deemed to have been withdrawn unless, not later than 41 days from the “relevant date “the complainant withdrew his complaint under the Unfair Dismissals Act 1977.

The case came to hearing on 9 April 2021. On 1 April 2021, I wrote to the Respondent seeking an outline submission in the case. Nothing followed.

The Respondent followed this by seeking a postponement in the case, which was refused.

On the first day of hearing, the Respondent Solicitor had taken issue with having to grapple with the depth of the Complainant submission. My request for a corresponding submission directed to the Respondent dated April 1, 2020, had gone unanswered.

The Respondent accepted the notification of withdrawal all complaints, bar the complaint of unfair dismissal.

The case proceeded to hearing but was undermined by IT connectivity problems and was adjourned on firm undertakings to preface the resumed hearing.  

There was no appearance by or on behalf of the Respondent at the resumed hearing. I had sought the promised submission of response prior to Nov 9, but this was not forthcoming.

Counsel for the Complainant directed me towards recognition of the Respondent “ongoing hesitancy to address the facts of the case” and called for a declaration for unfair dismissal.

 I afforded time through the 5-day window for the Respondent to make any response post hearing. Nothing followed.

I am satisfied that the Respondent was on the correct notice for the resumed hearing and while the Respondents Solicitor was made aware of the requirements to inform a postponement application through illness, he did not engage in that process.

I find that the Respondent was absent without reason from the resumed hearing, and they did not address this absence in any meaningful manner. The indication that the respondent was to appear in person did not materialise.

Taken together with the unfulfilled undertakings given on 9 April 2021, I find the Respondent to have recorded “no appearance “on the date of the resumed hearing.

This was not explained in the 14 days post hearing.

Counsel for the Complainant expressed a dissatisfaction at the non -appearance of the Respondent at the resumed hearing.

The Complainant wished to press on with the case. Counsel argued that the Complainant would be prejudiced if the case did not proceed and made formal application to proceed. He contended that the respondent held the burden of proof in the case and the case should end there and a decision follow.  

I disagreed with Counsel and reminded the Legal team, that I was seeking an outline of the case and complainant evidence to assist in my Inquiry. I reflected that I had already read and considered the written submissions.

 I explained that I was happy to proceed with the case and the Respondent as a “no show “party was permitted a 5-day window post hearing in which to explain their nonappearance. If I did not hear further from the Respondent, I would move to sharing my decision with both parties, with right of appeal for either party to the Labour Court.

Counsel for Complainant outlined that the Complainant had worked continuously from 19 December 2016 to 31 October 2019 at the Respondent Building business. During this time the complainant’s employment was reclassified from one named company to the agreed legal title on the complaint form. He submitted that the complainant was always under the direction and control and an employee of the respondent, Denny and Sons [1998]1 IR 34. The letter of dismissal reflected his employment status.

The Complainant, an experienced builder worked full time on various building sites and received €598.83 weekly until his summary dismissal on 31 October 2019.

Counsel outlined details of an incidence of disagreement which occurred between the complainants then Manager and the Complainant on 15 May 2019. The Complainant was asked to clean the roof without supportive scaffolding and refused on safety grounds. The Complainant retained a photograph of the Respondent Manager picking up the duty. This photo was exhibited in the Complainant booklet of documents.

A certain chasm and souring of relationship developed in the working relationship between these two people, where the Complainant contended that he was given less important jobs on site, causing him to feel humiliated.

On September 11, 2019, the Complainant was speaking in Russian on site and remonstrated by the Respondent Manager. A disagreement followed and the complainant was embarrassed to be singled out in from of colleagues.

The Complainant was on sick leave “due to stress and anxiety and ongoing back pain “12 to 14 September 2019. On his return to work on September 15, the complainant was asked to apologise for the “incidence of Russian language “as a condition to his return to work. The Complainant wrote out the apology and submitted it.

On 29 October 2019, the complainant was denied work due to rain, but others were working on the day. He was informed that he had indicated that he wished to desist from these tasks.

The Complainant received a letter of termination of employment on 31 October 2019. This was completely unexpected and was framed as:

On behalf of the Company, it is my duty to inform you that your employment with Eco Tech Building Solutions ltd is terminated with immediate effect

Following a discussion with you, and both verbal and written warnings, we as a Company think this is the best decision, due to the lack of you carrying out your duties as directed through your employment but more so over the past 5 months

As you repeatedly refused to carry out your duties and failed to abide by Company policy, your additional benefits will be terminated immediately. From 31 October 2019, you will not have the use of the Company vehicle, unless you choose to purchase it privately. Please also return all company property, tools, keys etc by the end of the day.

You will receive your salary up to 29 October 2019, which is the last day you worked, and you will be compensated for your remaining holiday allowance in due course.

I would like to take this opportunity to wish you well for the future

Counsel submitted that the complainant had a clear disciplinary record and had not been notified of conduct issues.

He argued that the Complainant had been denied the opportunity to participate in fair procedures and the dismissal evolved from “animus “between the complainant and his manager. The Complainant had objected to cleaning the roof on safety grounds and he had spoken up when he had subsequently been allocated less responsible but physically onerous work as a result. This had caused his back to flare up.

The complainant was not afforded an opportunity to resolve these differences which left him humiliated and the written apology tendered on 15 September should have stabilised the working relationship.

Counsel submitted that the Respondent had not acted reasonably in dismissing the complainant as no alternatives were considered, nor was he provided with a procedural framework for his dismissal.

The Complainant had not been provided with a particular reason, fair or otherwise justifying his dismissal.

Counsel sought the application of Lord Denning’s articulations in British Leyland UK ltd v Swift [1981] IRLR 91

The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view  

In drawing from the EAT case of Bunyan v UDT [1982] ILRM 404, Counsel concluded that the Respondent in the case had denied the complainant fair procedures in the conduct of the dismissal

In reference to the Labour Court case of Pottle Pig Farm v Panasov UDD 175, Counsel emphasised that the Respondent had failed to provide the complainant an opportunity to mount a defence against allegations of misconduct.

Counsel sought an award of compensation in respect of the complainant’s financial loss prompted by his unfair dismissal. He clarified details on loss and mitigation.

Evidence of the Complainant:

The Complainant outlined his considerable experience in the building trade through education and practice. He had started work at 19 and had worked in Ireland for 18 years. He specialised in external roof and insulation work.

The Complainant had previously subcontracted to the Respondent Manager. In 2016, he was propositioned to take on employee status. He accepted that work but was not provided with a contract at that time.

He recalled seeing a contract after the company profile changed in July 2018. He was not provided with that contract. Life continued as normal after the move to “ltd “status. The Business hosted a new Manager of Italian origin.

The Complainant recalled a Renovation job in a city suburb in May 2019. He had been given a €50 a week pay rise just before this time.  When asked to clean a roof, the complainant said that he had identified a shortfall line scaffolding reaching to cover the suggested site for cleaning. He said he refused to undertake the task as he had “no protection “Mr A, his manager completed the task.

The Complainant submitted that his role, previously one of responsibility was reduced to sweeping and carriage of rubbish. He exhibited logs of this carriage and added that “he was not a robot “he said he began to worry about his health.

He recalled that he was conversing with a Lithuanian   co-worker who understood Russian. He submitted that he had been chastised by Mr A and told to “go home “.

He was medically advised to rest by his GP and confirmed that he had apologised for speaking Russian in order to be allowed back to work. He said that he gave the apology as he feared losing his job. However, things deteriorated further after that, and he felt he had lost standing in the eyes of his colleagues at work.

The Complainant recalled the day when his job ceased.

He had arrived for work on a new house and Mr A blocked his car by a gate. Mr A invited him to his Van, and they drank coffee. Mr A then produced a letter and confirmed his dismissal.

Mr A drove him home, stopping to change tools. This lasted between 1hr 20 mins -2 hours. The car in which he had arrived at work was left behind.

The Complainant denied receiving any warnings at work. He had not broken any rules. He had shared his genuine concern regarding his own health with Mr A in October 2019 as he had feared disability.

The Complainant in evaluating the change in his workload contended that “I felt that he wanted to demonstrate his power “

He received €900 in final salary. He gave evidence of loss and intermittent state PUP payments received.

The complainant clarified that he had not been afforded an appeal of the decision to dismiss him.

The Complainant recounted that the dismissal had a terrible impact on him as he began to question himself. He was available for work and eventually with family support, he bounced back and relaunched firstly as an employee and latterly as a self-employed Insulator, drawing a salary as a director. He submitted a document prepared on financial loss. He confirmed that his pay had not been altered since he attracted a €50 pay rise prior to the “roof incident “in May 2019.

The   Complainant confirmed that there were no other live proceedings against the respondent.

In conclusion, Counsel sought to rely on the submitted case law in the case. He argued that the Respondent, by their failure to engage, had failed to satisfy the required burden of proof in the case.

What started as a personal dispute on who should clean a roof escalated without reason to a summary dismissal? In the interim, the complainant had found himself in an unreasonable situation at work which resulted in his attracting menial rather than responsible work.

The Complainant was met with a demand for an apology from his employer. Little regard was paid to that written apology, and he was unfairly dismissed through a total lack of fair procedures on 31 October 2019.

Counsel sought an order for compensation in respect of financial loss arising from an unfair dismissal.  

I have been asked to make a decision in a claim for Unfair Dismissal, where earlier claims stand withdrawn. In arriving at my decision, I have given the parties an opportunity to be heard. I have read and considered all documentation tendered by the Complainant and I have noted that I have not received any of the requested submissions from the Respondent, on whom the burden of proof lies. I have already recounted the detail of the first day of hearing which adjourned proceedings. I have recorded the events surrounding the second day of hearing, which despite all our efforts at WRC did not result in an appearance by or on behalf of the Respondent.

I am satisfied that the Respondent was fully on notice of the hearing but did not comply with the attendance requirements for hearing or engage in the postponement’s procedure. It is of note that the Respondent was on notice of this procedure from an earlier application in April 2021.

I have recorded the Respondent as a “no appearance” covering the second day of hearing. 

The Unfair Dismissals Act, 1977, as amended, provides for the bringing of claims for redress   for unfair dismissal to the WRC within six months of the date of dismissal.

In Redmond on Dismissal Law, Des Ryan BL in Chapter 12 on Statutory Unfair Dismissal states:

The avowed advantages of a statutory claim reside chiefly in time, costs, informality, and in that those drafting the legislation in 1977 were committed to the necessity of devising a criterion of lawfulness of dismissal which would be at once more exacting and yet more flexible than the implied terms then offered by the law of the contract of employment. They achieved this by the combination of requiring an employer to show good cause for dismissal, and the overriding test of the reasonableness of an employer’s decision to dismiss ….

The concept of fairness   espoused by the unfair dismissal legislation distinguishes it from the common law action for wrongful dismissal. … Procedural and Substantive rules of justice are instead preferred.

In my consideration of the facts of this case, I have reflected on the essence of that statement.

By now, the parties are aware of my dissatisfaction that I did not have the benefit of the respondent attendance during the second day of hearing. I had acceded to the respondent request for postponement on IT connectivity issues on 9 April last and undertakings that followed from the respondent to engage in the hearing were unsuccessful.

The Respondent carries the burden of proof in a claim for unfair dismissal. Section 6(6) refers.

The Law on Unfair Dismissal provides this in Section 6 of the Act.

 Unfair dismissal.

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.

……..

(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 other 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. 

In this case, the Respondent has not submitted a defence as permitted within Section 6(4) of the Act.

Section 6(7) outlines that Employer reasonableness or otherwise in relation to the dismissal can be considered in this case.

I heard that the Complainants legal team too issue with my insistence that I hear an outline and complainant evidence in the case. I could not accept that a nonattendance by the Respondent automatically generated a decision for unfair dismissal. I wanted to inquire into the facts of the case, and I wish to follow now with my analysis of those facts.

I could not identify an issue with the complainant as an employee. As far as I was concerned, he had locus standi on which to advance his claim and I did not hear or see an argument to the contrary. I accept Counsel submission that the letter of dismissal exhibited above reflected an undisputed employee status. I do, however accept that the case did not have the benefit of a contract of any kind. In that, I accept the uncontested evidence of the complainant when he recounted a transition from self employed status to direct employment in December 2016. This then changed to the revised legal title of the named respondent in July 2018 by the addition of “limited “to the legal title. I accept that mention was made of a contract of employment during July 2018, but none was provided. The pay slips exhibited for 28 August 2019 reflects employer and employee prsi deductions. There were a few different PRSI classifications visible on the record of employee details, but all seemed to be accompanied by employee deductions of prsi.

I have considered the complainant as a bone fide employee of the Respondent business and as such eligible to advance his case under the Unfair Dismissals Legislation. 

I have reflected on the submitted outline of the case events followed by the direct evidence of the complainant and my clarifications.

I noted that the complainant had seemed to enjoy his job prior to the events of the “roof cleaning request “of May 2019. I accept that he received a pay increase around this time, which for me at least, reflected a satisfaction with performance.

I accept that the complainant approached this case without a disciplinary record.

As the Respondent has not entered a defence in the case, I must find that the burden of proof in the case has not been satisfied.

I established a steady deterioration in staff relations between the respondent and the complainant, however, I was not met by any records of meetings to address this from either party. I note he events of the safety concerns when asked to clean the roof and the admonishment for speaking Russian at work.

Instead, I found myself reviewing several records of weight of work attributed to a skip hire, where the complainant attested amounted to a change in the nature of the work he had been allocated from May 2019. I accept that the allocation of his work changed to a lower level of responsibility during this time, yet he told me that his pay remained unaltered.

My attention was drawn to the exhibited letter of dismissal and find that it constitutes a summary dismissal. I was not provided with the company procedures for disciplinary procedures.

I have not identified any investigative process in this case. I listened carefully as the complainant recounted the circumstances where this letter was handed to him. I found the prelude of coffee to be bizarre. I found the description of the complainant been driven home by the respondent, leaving his car/van behind him to be callous if not cruel. I say this as the complainant exhibited a notification from the respondent one year earlier that the van was essential to the complainant’s work.

However, in all that I heard, I noted that there was no lead in period to the issuing of the letter and the circumstances of its production amounted to high end trauma   for the complainant. This was not best practice in a trading company.

I accept that the complainant was struggling with his health around the same time and the forced apology for speaking Russian had a demeaning impact on him. It is clear to me that a defined fault line had arrived in the complainants   working relationship by October 2019. However, I could not identify any material event which led the issuing of the letter of dismissal on 31 October 2019. The Complainant confirmed that the letter was signed by the respondent. It did incorporate an appeal.

I must conclude that there were no substantial grounds to justify this dismissal. I must also conclude that the employer adopted a wholly unreasonable approach to this dismissal by completely disregarding the established rules of fair procedures and natural justice in procedural justice. Put simply, the complainant was not heard in his own dismissal. It was a fair accompli without an opportunity to revisit the case.

 This amounts to a glaring omission and a matter that requires immediate remedial action in this employment. I strongly urge the respondent to adopt at the very minimum contracts of employment and an   employee handbook.

I also found that the impact of this dismissal was very harsh on the complainant as he clearly lost confidence as a result, only emerging to relaunch stage with the help and support of his family.

I have reviewed Pottle Pig farm case and I am drawn to the deliberations of the Labour Court when they said via former Deputy Chair, Ms Jenkinson

Having examined the submissions made by both parties and the evidence given, the Court concludes that the manner in which the decision was made to dismiss the complainant was devoid of any form of procedural fairness and offended against the principles of natural justice to which he was entitled. No investigation/ enquiry was carried out. The Respondent came to a conclusion that the complainant was guilty of a serious offence without giving him an opportunity to defend himself and/or respond to the allegations made. He was not allowed representation and was given no right to appeal

The Court found the Employer omissions in the case to place the case “outside the range of reasonable responses thus rendering the dismissal unfair “

I have considered all the evidence adduced in this case and find in all the circumstances the complainant was unfairly dismissed when he was presented with a letter of dismissal.

I was confused by the clause which permitted retention of the company vehicle to October 31, 2019. However, I did not have the benefit of the respondent to clarify this. As such, I must accept the complainant evidence that he was driven home by the respondent on that day.  This places the letter in the high end of a pre-determined outcome.

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 found that the Complainant was unfairly dismissed. He gave evidence of loss and mitigation alongside details of an extended period on PUP.

I do not consider re-engagement or re-instatement as practical options in this case.

 I note that the complainant met with some difficulty, before he successfully relaunched in the building trade. I appreciate, he was searching for work during a National Pandemic of Covid 19.

 I find an order of compensation to be a suitable fit in this case. I have relied on the definition of remuneration provided in Section 7 of the Act.

Therefore, I order the Respondent to pay the Complainant €16,384.68 (26 weeks gross pay) as compensation in respect of his Unfair Dismissal.

Unfair Dismissal, no appearance on behalf of the Respondent on second day of hearing.