Complainant

Respondent

Parties

Nicholas  Power

Shane Comerford Ashcraft Construction

Representatives

Self

                               Self

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-00042679-004

23/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042679-005

23/02/2020

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

CA-00042679-006

23/02/2020

The complainant withdrew his claim CA-00042679-005.

The complainant under oath stated the following:

The complainant commenced working for the Respondent in May 2018. He was a carpenter. His work brought him to different sites and premises regularly. He went where the work was.

On the 02.02.2020 he was working in a house. SC  asked him about getting some material needed to construct a set of stairs. NP asked SC for a pay rise. SC told him that he could not afford to give him a pay increase at that time. NP past comment on how much money SC was making on items such as stairs but he did so, merely pointing out the fact of the matter and there was no malice in the comment. Following that conversation NP went to another location to carry out a job there. There was no more mention of the stairs or the pay increase. On Friday NP was working on a job when he received a call from SC telling him that there was a problem with a door he had fitted and requested that he shave a piece off the bottom of the door. He said he would but unfortunately, he didn’t get around to it as he had to go off to another job.

On the Friday referred to above, SC called the NP and told him that there was no work available for him and he would have to let him go. NP was not afforded the opportunity to appeal the decision to let him go.

NP secured employment three months later. His wages now exceed that of his employment with the Respondent. He applied for 5 or 6 jobs before he secured his current position.

The complainant stated that he had not received any minimum notice payment. No documentation was submitted into evidence.

SC under oath stated the following:

NP was employed by him from the March, 2018 until the end of November, 2020. He worked well for the first two years however things deteriorated thereafter. SC was very disappointed to have to let him go but as he would not adhere to Covid 19 protocols and refused to carry out work when requested the respondent had no option.

SC had a good relationship with NP. When he had a car accident SC gave him € 900 in cash to help him get his car fixed.

In or around June 2020, during the pandemic, the respondent had employees working on a large site in Waterford. There were strict Covid 19 protocols in place both in relation to parking and movements on the site. NP consistently breached the Covid 19 protocols on site. Furthermore, the quality of his work actually cost the respondent money. The Respondent received letters of complaint specifically in relation to NP. Arising out the complainant’s conduct the respondent lost that client.

On the 25.11.2020 NP was working in a property with SC. SC asked him if he would prepare a list of materials needed to make a set of stairs. He refused to do it saying that SC makes too much money from the stairs that he makes, and he wanted a cut of it. An argument then broke out. SC stated that if he was not prepared to do the work required of him then he couldn’t see a future for him with the Respondent.  He left it at that.

On the 26.11.2020 SC got a call from a client complaining about a door that NP had fitted. It needed to be shaved at the bottom so that it would open and close correctly. When SC directed NP to carry out the task, NP became abusive and refused to do it. That was when SC made the decision to let him go. He was paid his Minimum Notice and all other monies due to him.

The complainant withdrew his claim CA-00042679-005

CA 00042679-006.

I am satisfied based on the documents provided by the Respondent and in the absence of any documentation from the Complainant, that the Complainant was paid all sums due to him following the termination of his employment.

On that basis I find that the complaint is not well founded and accordingly fails.

CA 00042679 – 004

NP alleges that he was unfairly dismissed from his employment. SC alleges that he had no option but to terminate NP as he refused to carry out the tasks he was employed to do.

In Governor of Bank of Ireland v Reilly [2015] ELR 229 the Court said as follows (at para. 38 et seq.):

“The onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

I note that NP agrees with SC’s evidence in that he accepts that he did not carryout the task of shaving the door and preparing the list of materials to make the stairs. His reasons for not doing what he was asked differs from SC’s. SC stated that he was annoyed and abusive when asked and seemed to be upset about the amount of money SC was making from his work. NP states that he just didn’t get the time to carryout the tasks as he had other work to do. The letter of complaint from the third-party contractor, which was submitted into evidence, goes some why to corroborating SC’s version of events. On the bases that there is some corroborating evidence and that NP agrees that tasks and instructions, were not carried out albeit for different reasons, I prefer SC’s evidence.  When an employee deliberately fails /refuses to carry out the tasks for which they are employed, it is entirely reasonable for an employer to dismiss them. However, in the interests of fairness and natural justice there is a process that should be followed. The Respondent did not adopt any procedures or process in relation to the Complainant’s dismissal. No written warnings were given. In that regard however, I do note that SC stated that he did speak to NP on a number of occasions about his reluctance to adhere to Covid protocol and about his performance. It would seem from the evidence that NP was never given an opportunity to defend himself. Nor was he given the option of appealing the decision to terminate his employment. Whilst I find that the Complainant contributed significantly to his own demise, that does not excuse the Respondent from following procedures to ensure the complainant’s rights to natural justice were protected. On that basis I find that the complaint is well founded.

The complainant found new employment three months later. His salary is now greater than that with the Respondent. In that three months he applied for five or six jobs. He also registered with a few employment agencies. In relation to the Complainant’s obligation to mitigate his loss I find that he has satisfied his legal obligation to do so.

In all of the circumstances and in particular the complainant’s contribution to his termination together with the fact that he secured employment three months later, I find that the appropriate award to make is €1,500.00.

CA 00042679 -04 The complaint is well founded. I award the complainant € 1,500.00

CA 000 42679 -06 The complaint fails.

Unfair Dismissal, contribution, reasonableness, mitigation.