ADJ-00031825

Complainant

Respondent

Parties

Derek  Davis

Bf Construction & Creative Developments Limited

Representatives

  Self-Represented

 T. Carroll - Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00042386-001

09/02/2021

The issue in contention concerns a complaint that the Complainant did not receive statutory minimum notice on the ending of his employment.

The employment commenced on the 23rd of September 2020 and ended at some time in February (a date of the 5th was contested) 2021. The weekly rate of pay was quoted as a nett figure of €650 for a 40-hour week.

The Complainant was laid off due to a major slow down in work in January 2021. This was due to Construction work slowing down/disappearing due to Corvid 19 restrictions.  Repeated attempts to ascertain when he could return to work with the employer failed. In a phone conversation on the 29th July 2021 he was informed by the Respondent that he had been let go/dismissed in February 2021 when the “relationship went sour”. It appeared that the actual end date was the 5th February 2021. He received no statutory minimum notice as required by law. No proper employment procedures were followed, and no warnings ever given.

The Respondent is a small-scale Construction Company. In 2020/2021 they were very reliant on Social / Public Housing work from Kildare Co. Council.  Due to Covid 19 much of this work dried up and staff had to be laid off. On the 18th January 2021 two (2) staff were laid off and as the Complainant was off sick he was texted on the Friday of that week – the 22nd January and informed that he was being laid off. The Employer/Respondent pointed out that Mr. Davis had not been in contact and it was very unclear as to whether or not he had actually left the job to go working elsewhere or was actually on sick leave. The Respondent had only used a Text message as he had no other means of contact.

On Thursday the 28th January the Complainant rang the Respondent / Employer. The conversation got heated. The Complainant threatened legal action as he alleged that he was the victim of a “Plot” to get rid of him.

Following this exchange, the Complainant texted other staff members in a most intimidatory fashion, threatened to inform the Gardai about alleged driving licence irregularities among the staff and in particular had targeted one individual staff member with a barrage of texts and unpleasant messages.

In the Oral evidence of the Director Manager he stated that the bad behaviour of Mr. Davis was such as to make it impossible to bring him back.

While an exact end of employment date was not clear the 5th February was the most possible as that was the date when all due monies etc were paid. However, Mr. Davis was, to his employer’s understanding on the PUP and it was only on the 29th July that the non-return to work decision was confirmed to him by the Employer.

It was important to note that they had no work in the early part of the year and Mr. Davis was only one of a number of employees laid off. However, the other employees had calmly accepted the situation and had been brought back to work when it was possible. Mr. Davis, by his bad behaviours and intimidation of fellow staff had made the relationship impossible. There was absolutely no suggestion of a “Plot” to get rid of Mr. Davis.

3:1        The relevant law

Section 4 of the Minimum Notice & Terms of Employment Act, 1973

Minimum period of notice.

4

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

3:2   Discussion.

Both Parties gave good oral evidence supported by brief written statements and copies of text messages.

It was clear that the Complainant, Mr. Davis, had had some difficulties with the Employer during 2020. The Covid 19 related lay off had taken place while he was absent on sick leave. Copies of text messages between the parties were produced.

From the Oral evidence and demeanour of the Parties it was clear that the employment relationship was clearly over. When the actual decision took place was unclear, but the date of the 5th February seemed the most plausible.

It was accepted at the Hearing that no Minimum Notice was paid as required by law.

The employment lasted some 19 weeks.

Accordingly, one week’s pay (on figures supplied -€650) as Minimum Notice is due to the Employee.

Minimum Notice, Corvid 19 Lay Off.