Complainant

Respondent

Anonymised Parties

A Former Worker

A Construction Company

Representatives

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

07/02/2020

The Complainant was employed by the Respondent from 19/4/19 to 28/10/19. The Respondent is a limited company engaged in construction. The Respondent’s office is based in Strabane, Co Tyrone and its employees work in the North and the Republic. The Respondent stated that it is registered with Revenue in the Republic of Ireland and has a trading VAT number. The Complainant’s gross weekly pay was £400 or €450.

The Complainant stated that he was unfairly dismissed. In that regard the Complainant outlined the sequence of developments between the 25th October 2019 and the 29th October 2019. He stated that he was told on the 25th October there was no work for him and that he received  a text message from the Respondent to this effect on the 29th October. The Complainant’s last day of work with the Respondent was the 25th October 2019. The Complainant stated that he requested the return of his working gear but that he did not seek a meeting with the Respondent in relation to the termination of his employment. 

The Respondent stated that he advised the Complainant as early as the 13th October 2019 “in so many words” to look for other work as a building project had not materialised. The Respondent stated that due to the Covid-19 pandemic work was lightening up. He stated that he had asked the Complainant to work in his own home/his father’s house to keep him in work. The Respondent stated that in the circumstances persisting at the time letting the Complainant go could not have been avoided. The Respondent stated that two other employees – last hired – were also let go. He said there were no redundancies, the employees were just laid off and that they know how the building trade works. The Respondent clarified that three weeks after that – sites/projects were up and running but he stated that he did not contact the Complainant to advise him of this. The Respondent maintained that he tried to look after the Complainant whilst he was employed and that he is now advertising looking for employees.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Complainant has brought his complaint of unfair dismissal under Section 13(2)  of the Industrial Relations Act 1969 which provides as follows:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended ….. a party to the dispute may refer it to a rights commissioner” (since amended to refer to an Adjudication Officer)

Section 11(1) of the Redundancy Payments Act [1967-2021] states:

“11.— (1) Where……an employee’s employment ceases by reason of his employer’s being

                  unable to provide the work for which the employee was employed to do, and—

(a)    it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b)    the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off”.

Section 6 (4) Unfair Dismissals Act [1977-2017] sets out specific circumstances where the dismissal of an employee “shall be deemed…….not to be an unfair dismissal” and states:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from……

(c) the redundancy of the employee,……”

Section 6 (7) of the Act provides thatin determining whether a dismissal is unfair, regard may be had:

“to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and……”

The Complainant’s position is that he was told on the 25th October 2019 there was no work for him, that he  received  a text message to this effect on the 29th October and that his last day of work with the Respondent was the 25th October 2019. The Respondent stated that he advised the Complainant to look for other work as a building project had not materialised, that there was less work due to the Covid-19 pandemic, that there were no redundancies and that the employees were laid off. 

Having considered all the information and the sequence of developments – I am of the view that the Complainant was unfairly treated in the manner by which his employment was terminated. The Respondent stated at the hearing that there were no redundancies. The definition of lay off as outlined at Section 11(1) of the Redundancy Payments Act [1967-2021] refers to there being a reasonable belief on the part of the employer that the lay off or cessation of employment will not be permanent. In this instance the Respondent confirmed at the hearing that approximately three weeks after the termination of the Complainant’s employment sites/projects were up and running but that he did not advise the Complainant of this nor did he contact the Complainant at the time. This in my view indicated an approach on the part of the Respondent to permanently terminate the Complainant’s employment irrespective of the availability of work some three weeks after he was laid off.

In all the circumstances, I am satisfied there was a lack of transparency in relation to the Complainant’s termination including a lack of any documentation, lack of notice and as regards the reason for the termination – which was purportedly based on a lack of work notwithstanding that work became available after a three week period.  I am also satisfied from the information presented to me that the Complainant was not given any or an adequate opportunity to address the matter of his proposed termination prior to it taking effect.  In all the circumstances, I am satisfied the Respondent acted unreasonably in relation to the termination of the Complainant’s employment.

Dismissal