Complainant

Respondent

Parties

Cian  Carlin

Celtic Working Platforms Ltd

Representatives

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-00040670-001

29/10/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave evidence under affirmation.  One witness was present for the respondent who gave evidence under affirmation.  The respondent’s representative was also a witness for part of the process and accordingly took the affirmation too.  The complainant was employed by the respondent from 01/06/20 until 16/10/20.

The WRC facilitated the attendance of a member of the public at the hearing.

The complainant submitted that he was unfairly dismissed for exercising his rights under the Protected Disclosures Act.  He submitted that this was going to be a difficult case to take as his father is the owner of the business.

The complainant submitted that he witnessed dangerous behaviour on one of the construction sites he was working on when he saw scaffolding fittings being thrown about in what he perceived as a dangerous and reckless manner.  This took place on 4 October 2020.  The complainant confronted the alleged transgressor in a heated fashion and when he got no satisfaction there, he went to the general managers office where he once again had a heated discussion with the general/site manager.

The complainant submitted that he made a protected disclosure verbally to the site manager but that he did not do anything about the issue.  He stated that the general/site manager took about 15 minutes to ascertain the facts and that when he was called back to the general/site managers office, he was told that no further action would be taken in relation to the incident.  The complainant submitted that the next day (a Monday) he called the owner (his father) regarding this turn of events.  He submitted that the upshot of these events was that on Tuesday he was summoned to a meeting to take place on the Thursday.

The complainant submitted that at this meeting allegations were raised against the complainant that he was aggressive and threatening in his dealings with the general/site manager.  He also submitted that he was not allowed to question any of the allegations against him or that he was not allowed to question the general/site manager’s use of hearsay evidence him (there were no notes taken of the investigation into his allegations).

The complainant submitted that the meeting ended after about 45 minutes and that the owner told the complainant to approach the Citizen’s Advice centre.  The complainant submitted that he spoke to Citizen’s Advice on the following Monday.  The advice he received was to raise a grievance with the company and to raise a query with the Health and Safety Authority. 

Following this advice, the complainant submitted a grievance to his employer and an hour later was informed that his employment would be terminated with effect from the following Friday 16th October.

The complainant submitted that his dismissal revolved around him making a protected disclosure and that it amounted to an unfair dismissal.

The respondent agreed that the complainant made a protected disclosure.  The respondent submitted that this was investigated verbally and that no notes were taken in relation to the investigation.  The respondent submitted that he allegation of improper and/or dangerous conduct by on of the complainant’s colleagues was not upheld.

The respondent submitted that this dismissal had nothing to do with the complainant making a protected disclosure but rather revolved around the complainant’s behaviour on in the office of the general/site manager.  The respondent submitted that the complainant was extremely aggressive towards some of his colleagues and arrived in the manager office holding a hammer (although it was a building site).

The respondent submitted that it had a verbal procedure for making protected disclosures and that this was followed and found that no further action was necessary from the complainant making a protected disclosure.

The respondent submitted that it did not take notes of the proceedings related to the dismissal because the complainant had recorded the meeting that took place on 8 October 2020

The complainant submitted that the respondent in this case is his father’s company for which he is sole shareholder and Managing Director.  Although, he indicated at the hearing that the site manager was also the general manager, he reiterated at the outset that he was employed by his father.  The complainant submitted at the hearing that his dismissal resulted from him making a protected disclosure and was not as a result of anything else.

Section 2 of the Unfair Dismissals Act 1977 – 2015 relates to Exclusions and states as follows:

2.— (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years,

(c) a person who is employed by his spouse , civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, father, mother, grandfather, grandmother, step-father, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother or half-sister, is a member of his employer’s household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside,

I note that the Protected Disclosures Act amends the Unfair Dismissals Acts and one of the amendments states as follows:

11. (1) The Unfair Dismissals Act 1977 is amended— …  (c) in section 6 by inserting the following subsection after subsection (2C): … “(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).”;

Section 3 of the Unfair Dismissals Acts, 1977 – 2015 relates to dismissal during probation or training whilst Section 4 relates to dismissal during apprenticeship.  Section 2(1)(c) of the Acts is not amended by the Protected Disclosures Act and therefore, in accordance with that section, the provisions of the Acts shall not apply in the case of the complainant.

Accordingly, I cannot find that the complainant was unfairly dismissed.

My decision in relation this complaint is that in all the circumstances of this complaint, the provisions of the Unfair Dismissals Acts 1977 - 2015 do not apply to the complainant.

Unfair Dismissals Acts, Exclusion provisions