ADJ-00028694

Complainant

Respondent

Parties

Noel  Brouder

McMahons Concrete

Representatives

  Self Represented

Mr. Edmond Dillon, Dillon D'Arcy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038646-001

02/07/2020

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

CA-00038646-002

02/07/2020

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

CA-00038646-003

02/07/2020

The Complainant alleged he was constructively dismissed, was due two days’ pay and never received written terms and conditions of employment.

The Complainant alleged he was not paid for two days sick pay when he resigned from his employment.  The Complainant confirmed he was not entitled to sick pay but another employee had been paid sick pay in the past.

The Complainant alleged he was not given a written statement of his terms and conditions of employment in breach of section 3 of the Terms of Employment (Information) Act 1974.

The Complainant alleged he was constructively dismissed during Covid and was replaced by three other people. The Complainant stated staff were being phased back to work and he was not contacted and everyone was taken back except him.

The Complainant stated he understood he was been taken back on a two to three day week.

The Complainant stated the Manager of the Respondent did not return his calls.

The Complainant was asked to attend a return to work/Covid compliance course at too short notice.

The Complainant stated the yard was busy with work when he visited it.

The Complainant attended the Respondent premises on June 15th with a witness, his brother, to verify his handwritten resignation, as he could no longer take the treatment he was been given. The Complainant confirmed he prepared his resignation in advance of handing into to Respondent and did not engage with the Respondent Manager on his grievances when resigning.

The Complainant confirmed he did not use the company grievance procedure at any stage.

The Complainant confirmed he got a new, higher paying job, before resigning his position with the Respondent.

The Complainant confirmed he took up his new post immediately after resigning his position with the Respondent and suffered no loss of income as a result of his alleged dismissal.

The Witness for the Complainant, his brother, also a past employee of the Respondent, gave evidence he asked the Respondent Manager why were “Brazilians” working in the yard and that he along with five others were given a written contract and asked to sign it straight away without reading it.

The Respondent denied a dismissal had taken place at all and the Complainant resigned of his own accord to take up a higher paid position.

The Respondent advised that the Complainant had previously resigned due to an personal issue in July  2017 and was rehired subsequently on the 29th May 2018 as the Respondent owner knew and lived near the Complainant and the two families knew one another.

The Complainant, along with most other staff were laid off due to Government advice that all non-essential business close due to Covid on March 16th 2020.  The Complainant and all other staff were laid off due to Health and safety issues in the country at the time. Only two staff remained working to provide limited orders from already produced stock over the winter of 2019.

The Complainant was never advised of a two or three day week and misunderstood the correspondence.

The Complainant was in receipt of the Covid payment which was only 50 Euro less per week than his net wages.

All employees were assured by email that they remained employees of the Respondent while laid off.

In or around March 2020 the Respondent commenced various works to make their premises Covid safe, i.e. expand the canteen, new toilets, sanitising locations etc. This took some six weeks to organise as Contractors were in high demand at the time and cost 20,000 Euros to implement and were completed at the end of May 2020. Safety training for a return to work was scheduled on June 2nd 2020 by the Respondent with an Independent Training Company for Covid compliance training. The Complainant was invited to attend this training on May 27th 2020 but put objected to the short notice on personal grounds even though he was at home laid off. He did eventually attend the training.

When the Complainant was asked about return to work he refused until certain Covid safety measures were put in place. The Respondent had no issue with putting these measures in place but it took some time to organise and implement. The Complainant confirmed he understood these requests had been made and it limited the opportunity to return to work quicker.

Staff were brought back on a phased basis to suit orders, building, operational, and safety measures.

The Complainant resigned in a pre-planned resignation brining a witness along with him to verify the resignation and this signalled a pre-planned action against the Respondent. The Complainant refused to engage wit the Respondent Manager on why he was resigning and it seemed he was just spoiling for an argument and wishing to find an excuse to resign.

The Complainant had no grounds for his resignation, did not raise any grievances and had a higher paid job lined up prior to resigning.

The Respondent did not employ “Brazilians” in place of the Complainant and any other workers on site were part of the Contractors doing the essential construction work to address Covid safety issues.

Only two staff worked during lockdown, the owner and Operations Manager and this was a difficult time for the business with no cash flow and operational and Covid safety rules in place.

A copy of the Terms and Conditions supplied to the Complainant was supplied to the Hearing and the Respondent confirmed the Complainant did not sign the contract but did complete the form attached to the contract of employment regarding address, bank details, next of kin etc. The Respondent Manager produced a note from his diary dated May 29th 2018 showing an entry that Noel Brouder started employment and was supplied with a contract.

The Respondent denied they owed the Complainant any pay as he was out sick for the two days claimed and had no entitlement to sick pay as per his contract and that any sick pay was at the discretion of management.

The Respondent was advised that the Complainant had taken up alternative employment with another concrete manufacturer on June 22nd 2020.

With regard to the Payment of Wages Act complaint (CA-00038646-001 )the Complainant confirmed he did not work the two days in January and was not entitled to sick pay.

With regard to the claim that the Complainant did not receive a written statement of his terms of employment (CA-00038646-002) I find the evidence of the Respondent far more convincing that they supplied the Complainant with a written statement of his terms of employment (supported by the personal details form attached to the contract being returned by the Complainant) , but the Complainant did not sign the contract and therefore the Respondent complied with the Act.

With regard to the constructive dismissal claim (CA-00038646-003) the burden of proof rests with the Complainant and the Complainant adduced no convincing evidence to support his complaint. Indeed, all the evidence, lack of returning to work when requested, not using the grievance procedure, having an alternative position organised before resigning, his lack of clear statement of issues in his resignation letter, turning up with a witness to verify his resignation,  no clear evidence to really support  that the other people he suggested took his job while out on Covid payment, his constantly changing of his story under cross examination and the fact that the new position paid more than his position with the Respondent makes his complaint appear contrived/opportunistic and unfounded as a result. .

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. I find the complaint under the Payment of Wages Act is not well founded and the Complainant was properly paid for what he was legally entitled. (CA-00038646-001).  

I find the complaint under the Terms of Employment (Information) Act 1984 not well founded. (CA-00038646-002.

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 find that the Complainant was not unfairly dismissed. (CA-00038646-003))

Constructive Dismissal