Complainant

Respondent

Anonymised Parties

Excavator Driver

Construction Company

Representatives

Nigel Allen , Nigel D Allen Solicitors

Joe Bolger, ESA Consultants

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-00034811-001

21/02/2020

The complainant was employed as an Excavator Driver working on a motorway construction project and commencing employment in October 2018.  In August 2019 an incident occurred on the work site following which the complainant was suspended from work.  The complainant never resumed employment with the respondent.

This matter was heard by way of remote hearing pursuant to the 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.

The complaint in this file was heard in conjunction with the complaints contained in file no. ADJ-00024895.

The complainant was assaulted by another worker following an incident in which an underground cable was damaged.

The complainant was suspended without notice by the respondent.

The complainant’s solicitor wrote to the respondent challenging the suspension and advising that the complainant would return to work.

The complainant attempted to return to work but the respondent failed to meet with him.

No further communication was received from the respondent and months later the complainant  noted that he was no longer registered as an employee of the respondent on the Revenue site.

The complainant was suspended on 21 August 2019 after a cable was damaged at the site where the complainant was operating a digger.

The respondent was informed by the complainant’s solicitor that the complainant was returning to work.

The respondent expected that the complainant would return but there was no contact from him.

The contract on the motorway site ended on 10 September 2019.  There was no guarantee given to the complainant regarding work on another site.

The respondent heard that the complainant had started employment with another employer.

The respondent is a construction company and the work site was a motorway extension scheme.  The complainant was employed to operate machinery as part of the work crew operating on behalf of the respondent.  Other contractors also operated on the site.

The first issue in contention between the parties relates to the date that the complainant commenced work with the respondent.  The complainant states that he commenced employment on 8 October 2018 whilst the respondent claims that he commenced on 22 October 2018.  I note that there is a bank statement showing a payment in respect of wages being lodged to the complainant’s account on 18 October 2018 which, allowing for the fact that the complainant states that he was paid a week in arrears, would indicate that the commencement date would appear to be as stated by the complainant i.e. 8 October 2018.  I should also note that there are differing views between the parties regarding the issuing of a written contract with the complainant stating that he never received such a document. 

The complainant’s main work was operating a digger but he stated that he also drove a dumper and worked on the ground as required.  On 21 August 2019 the complainant was engaged in excavating drainage ditches on the site.  There was another excavator also at work on this job.  According to the complainant he was made aware that a cable had been found where the excavations were in progress.  The respondent’s managing director (MD) arrived to investigate the matter.  Another workman, employed by a different contractor, accused the complainant of trying to shift the blame for the incident and then assaulted the complainant injuring him.  The respondent’s MD told him that he had not witnessed the incident.  According to the complainant he stayed in work that day but that next day, after reporting for work, he went to see a doctor and was then absent for a number of days.  The complainant stated that he had updated the MD in this regard on 25 August who told him that he was suspended from the site on the instructions of the main contractor.  It appeared from what the MD said that the main contractor was blaming the complainant for severing the cable.  On 27 August he received a letter of suspension from the respondent which was dated 21 August.  That letter stated as follows:

“This letter is to inform you that as a result of your actions on 21st August 2019 you are suspended from work.  The company views physical violence as a gross misconduct and will not tolerate fighting in the workplace.”

The letter was signed by the MD.

The complainant consulted his solicitor and on the same day a letter was sent to the MD by the solicitor on behalf of the complainant.  The letter commenced by stating that the respondent was not in compliance with the legal obligations of an employer as the complainant had not been furnished with a written statement of his terms of employment nor had he received written procedures as regards the grievance and disciplinary procedure.  The letter further stated that the complainant could not be suspended and ended by putting the respondent on notice that the complainant would return to work the following Monday morning.  Reference was also made to the fact that the incident on site was being investigated by the Gardai.

According to the complainant he returned to the site on 2 September but could not locate either the MD or indeed his digger.  He called the MD on his phone and but failed to speak to him.  The MD did not return his calls.  The complainant further stated that he had recently purchased a house and taken on a mortgage and needed an income.  After failing to hear from the respondent he took up employment with another employer commencing on 9 September.  The complainant stated that he viewed this as an extra job dictated by the need to have an income and not as alternative employment.  The complainant lodged complaints with the WRC on 15 October 2019 (contained in file No. ADJ-00024895) and a hearing of those complaints was arranged for 28 January 2020.  The complainant attended for that hearing without a solicitor but prior to its commencement he was approached by the respondent’s legal representatives and following discussions agreed to a settlement.  This settlement was subject to a delay of 4 weeks in which time the complainant sought legal advice.  Following that advice the complainant withdrew his consent to the settlement.  He also stated that he only became aware that his employment with the respondent had actually been terminated during his discussions with the respondent’s representatives on that day and as a result lodged his complaint for unfair dismissal which was received by the WRC on 21 February 2020.   

The respondent’s evidence, given by the MD, was that a contract of employment was issued to the complainant at the commencement of his employment.  The respondent produced a document at the hearing which had the complainant’s name written on it and whilst signed by the MD was not signed by the complainant.  As regards the incident on 21 August 2019, the witness stated that he had instructed the complainant not to dig until the necessary permits were obtained.  He further stated that this was standard procedure of which the complainant would be aware.  He attended the scene when the incident with the cable occurred and, as a result of that incident, work was stopped at that site and an investigation was begun.  The complainant was involved in an altercation with an employee of a third party.  The MD suspended the complainant.

The MD went on to state that he had received the letter from the complainant’s solicitor regarding the suspension.  The letter informed him that the complainant would be returning to work and the witness accepted that position.  The MD stated that the complainant had failed to contact him even though he was on site on the Monday in question.  There was no record of any calls being received from the complainant.  The witness said that some days later he heard on the grapevine that the complainant had started in another job.  He had not attempted to contact the complainant.  The witness pointed out that the contract on the motorway was coming to an end and was in fact due to finish on 2 September but this had been extended until 10 September.  The complainant’s employment would have terminated at that stage.  The respondent had a further contract at a location more than 250 kms. from the location of the motorway site but the MD stated that the complainant would not have been employed there as that contract did not require a digger.  The witness accepted that he had signed documentation to the effect that the complainant was in permanent employment and that he would move to the other site on the completion of the current contract but stated that these letters were produced and signed by the MD for the benefit of the complainant who was seeking mortgage approval at the time.  The respondent further submitted that the respondent had suffered a reduction of €38,000.00 from their final payments from the main contractor as a result of the cable breakage.   

According to the respondent’s written submission the MD was contacted months later with regard to providing a reference for the complainant.  It was at that stage that it was discovered that the complainant had terminated his employment and on 4 October 2020 Revenue were notified of the cessation of employment.

As noted there is no agreement between the parties on many issues.  For the reasons outlined above I accept the complainant’s position that employment commenced on 8 October 2018.  The date of termination is also a major point of contention.  The only documents that in any way relate to the issue is the letter of suspension dated 21 August 2019 (received by the complainant on 27 August) followed by the solicitor’s letter disputing the suspension and stating that the complainant would return to work on 2 September.  The respondent’s case is that it was accepted that the suspension was incorrect, that the complainant did not return to work on 2 September or make any effort to contact the respondent thereafter and that the complainant effectively terminated his own employment.  The respondent also pointed out that the contract on the motorway finished on 10 September.

Another issue between the parties relates to whether or not the complainant received a written contract.  The respondent stated that a contract had been issued and produced a copy of this document for the hearing.  The complainant stated that the first sight he had of same was when he saw the respondent’s submission.  That document has a commencement date of 8 September 2019, a date that is clearly incorrect and accepted as such by the respondent.  The same clause further states that employment would be terminated in accordance with Clause 10.  Clause 4.2 states that it is a fixed-term appointment and that the appointment was for 11 months.  Clause 10 states that if either party wishes to terminate the contract before its expiry then the provisions of the Minimum Notice and Terms of Employment Act would apply.  This document was not signed by the complainant.  It was, however, signed by the MD and dated 22 October 2019.  The respondent could not explain why this date was incorrect also.  Having regard to all the evidence I must decide that the document was not given to the complainant at the time of his employment and accept his position that he was not issued with a contract of employment. In addition, it should be noted that Section 2(2)(b) of the Unfair Dismissals Act which excludes from its application dismissals under a fixed-term contract stipulates that such a contact “is in writing, was signed for or on behalf of the employer and by the employee…”.   It follows therefore that I cannot accept that the complainant’s employment terminated by reason of the operation of a fixed-term contract.

Section 6(1) of the Unfair Dismissals Act 1977 states:

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.

Throughout the hearing the respondent accepted that the suspension of the complainant and the manner in which it was carried out was wrong.  There was, however, no response, formal or otherwise, from the respondent to the complainant or his legal representative in respect of this matter.  We then move on to 2 September 2019 when, according to the complainant he attempted to return to work and to contact the respondent.  The respondent, for his part, asserts that he was present on site that morning and that the complainant did not present himself nor was there any record of miscalls.  These are two absolutely divergent accounts of what occurred on that day.  What is striking, however, and what makes attempts to reconcile these different accounts so difficult, is that neither party made any further attempt to contact the other side with a view to seeking clarification or reconciliation of the issue.  The last payment of wages into the complainant’s account took place on 29 August 2019.

The High Court in the case of Bank of Ireland v Reilly, IEHC 241 (2015) stated as regards suspension:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing…….Thus, even a holding suspension ought not to be taken lightly and only after a full consideration of the necessity for it pending a full investigation of the conduct in question.”

In the matter before me the complainant was placed on an indefinite suspension as a punitive measure with no mention being made regarding the holding of an investigation.  I therefore consider that the action of the respondent in placing the complainant on an indefinite, punitive suspension without pay was procedurally deeply flawed and unreasonable.

The next matter for consideration is when can it be considered that dismissal took place.  In this regard I do not accept the contention of the respondent that having heard “on the grapevine” that the complainant had commenced employment with another employer the respondent was entitled to assume that the complainant had effectively resigned from his position with the respondent.  Suffice to say that many people have more than one employer and thus the mere act of taking up other employment cannot of itself be taken as a resignation.  Furthermore, the respondent made no effort to enquire into this matter.  For those reasons I do not accept the respondent’s argument that the date of termination was the date that the complainant commenced the other employment.

As noted above the complainant did not make further contact with the respondent.  What he did do was to lodge a number of complaints with the WRC on 15 October 2019 under the Organisation of Working Time Act and the Terms of Employment (Information) Act and a dispute under the Industrial Relations Act.  As noted above there were discussions between the complainant (who was not legally represented at the hearing) and the respondent’s legal representatives on the day of the hearing, 28 January 2020, and it was the complainant’s evidence that it was during these conversations that he was informed that his employment had been terminated.  In the absence of any evidence to the contrary I accept that the complainant was informed on 28 January 2020 that his employment had been terminated and, given the sequence of events, was therefore justified in believing that he had been dismissed.  As this was the first time that he was informed that his employment was terminated I consequently accept that date as being the date of termination of the complainant’s employment.  

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is 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…

Having determined that the conduct of the respondent in this matter was unreasonable I find that the termination of the employment of the complainant was an unfair dismissal.  I do, however, find it surprising that the complainant, after his failure to make contact with the respondent on 2 September, did not either himself or through his solicitor make greater attempts to establish contact with the respondent in order to clarify what the position was.  I believe that the complainant could have been more pro-active in this regard.

As noted, the complainant took up employment shortly after the suspension on 9 September.  The complainant in evidence stated that he had recently purchased a house and required an income to pay the mortgage.  The details of the wages in the new employment indicate that these are variable and are about 25% less than the complainant’s earnings with the respondent.     

Complaint No. CA-00034811-001:

This is a complaint under the Unfair Dismissals Acts 1977 – 2015.  For the reasons detailed above I find that the complainant was unfairly dismissed under the provisions of the Act.  I have had regard to the conduct of both parties in this matter, including the lack of engagement after 2 September 2019, and the fact that the complainant had secured employment within a week (albeit on lesser remuneration).  I also note that the complainant has continued in that employment and has not presented evidence with regard to seeking employment of a similar type to that which he had with the respondent.  Having considered all the circumstances, I order the respondent to pay to the complainant the sum of €8,000.00 as compensation in this regard.

Unfair Dismissals Act    Indefinite Suspension   Conduct of Employer