Complainant

Respondent

Parties

Jonathan  O Brien

Erne Concrete Pumping (Ireland) Limited

Representatives

Ronan O’Carroll BL instructed by Damien Rudden Solicitors

Lauren Tennyson BL instructed by Myles McManus, Murphy & McManus Solicitors

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-00041585-001

17/12/2020

The Complainant commenced his employment with the Respondent on 28 January 2019. He was employed as a Concrete Boom Operator and was paid a daily rate of €14 per hour. His employment ended on 24 June 2020. He claimed that he was dismissed while the Respondent asserted that he terminated his own employment.

The Complainant commenced his employment with the Respondent on 28 January 2019. He was employed as a Concrete Boom Operator and was paid a daily rate of €14 per hour.

While on site in Belfast on 23 June 2020, the Complainant telephoned his supervisor, the Sales and Operations Manager, to inform him that the boom of the pump he was operating had crumpled on site.  He was then instructed to bring back the machine to the yard in Cavan for inspection.

The Complainant alleged that he was told by the Sales and Operations Manager, during a telephone call on 24 June 2020 wherein the incident of the previous day was discussed, that it was time “to call it a day” and understood from this that he was dismissed.

The Complainant’s representative asserted that the summary manner in which he was treated, without any regard to procedures, fair or otherwise, rendered his dismissal unlawful. Specifically, it was asserted that the Respondent’s criticism of the Complainant’s conduct was essentially performance-based and that in the absence of any warning, the Respondent should have considered alternative approaches to dismissal.

It was also highlighted that at no stage was there any provision made by the Respondent for a performance improvement plan regarding the Complainant’s impugned behaviour and how matters could be improved. The Respondent asserted that unless such a plan is provided for, it is unsatisfactory and unfair to categorise an episode of underperformance as an act of gross misconduct.  

Having received a call on 23 June 2020 from the Complainant to inform him that the boom of the pump he was operating had crumpled on a site in Belfast, the Sales and Operations Manager of the Respondent instructed him to bring back the machine to the yard in Cavan for inspection.

Prior to visiting the site in Belfast on the following day to inspect the boom, the Sales and Operations Manager telephoned the Complainant to establish his version of events. Despite having tried to call him on numerous occasions that morning, the Complainant did not answer his phone. Having reviewed the CCTV on site in Belfast, the Sales and Operations Manager called the Complainant again and finally made contact with him at 16 50 hrs on that day and explained to him what he had seen on the CCTV. He stated that the Complainant became aggressive when he was asked for an explanation and denied that he had done anything to cause the accident. As the conversation was going around in circles, the Sales and Operations Manager informed the Complainant that he would end the call.

Further to this call, it was asserted that the Complainant telephoned the General Manager on 24 June 2020 at approximately 5.15pm and informed her that he had taken grave offence to the conversation he had with the Sales and Operations Manager and added that he had been let go by him. He also asked for all of his outstanding monies to be paid to him as well as his P45. The General Manager subsequently telephoned the Sales and Operations Manager who denied that he dismissed the Complainant and asserted that it was not in his remit to do so. As a result, the General Manager telephoned the Complainant back and informed him that he had not in fact been dismissed. Notwithstanding this, the Complainant insisted that he be finished up and his P45 be issued to him.

The Respondent also stated that both the Sales and Operations Manager as well the General Manager called the Complainant on 25 June to clarify that he had not been dismissed but that the Complainant did not return their calls.

The Law Section 1 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: (1) In this Act—

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer,

 whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Dismissal as a fact is in dispute in this case and therefore it is for the Complainant to establish that a dismissal in line with the definition set out under the Act occurred.

Findings

I note firstly the Complainant’s assertion that the Sales and Operations Manager informed him during the telephone conversation they had on 24th June that it was time to “call it a day” and that he understood from this that his employment was being terminated by the Respondent. Even if I accept that these words were said, which I note was denied by the Sales and Operations Manager, I find that these are somewhat ambiguous and should not necessarily have been construed by the Complainant that he was being dismissed.

Even if the Complainant did believe however that his employment had been terminated during this conversation of 24th June, which on the basis of what was allegedly said I do not necessarily consider that he should have, the position was clarified in a telephone call from the General Manager later that evening, who called the Complainant back after he had told her when he had called her that he had been dismissed by the Sales and Operations Manager and wanted to be paid up for all of the work he had done. Specifically, the General Manager told him that she had spoken to Sales and Operations Manager who asserted that he had not dismissed the Complainant and that he had only called him to ascertain what had happened on the previous day.

I note that the contents of this second conversation with the General Manager were not disputed by the Complainant and that he inexplicably, in my view, insisted on his P45 being issued even though the Respondent’s position had been clarified. While it may have been preferable if the Sales and Operations Manager had telephoned the Complainant himself that evening to explain the position, having been made aware of his belief that he had been dismissed, I recognise that it was very late in the evening at that stage and I am satisfied that the position was clarified by the General Manager when she called him back.

I also noted however, crucially in my view, that the Sales and Operations Manager did telephone the Complainant the following day, 25th June, in what he said was an attempt to clarify the misunderstanding, but that the Complainant, inexplicably in my view, did not either answer or return the call. Furthermore, I noted the General Manager also attempted to contact the Complainant later on the same day but that her call too was unreturned.

I find that the evidence of both the Sales and Operations Manager and the General Manager that the purpose of their calls on 25th June was to clarify that the Complainant had not in fact been dismissed to be entirely credible and cannot understand why their calls were not returned by the Complainant.

Bearing all of the above in mind, I find that the Complainant was not unfairly dismissed

I find that the Complainant was not unfairly dismissed for the reasons set out above

Dismissal in dispute;