ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029114
Parties:
| Complainant | Respondent |
Parties | Aaron Smyth | Athboy Plant Hire Limited |
Representatives | N/A | Thomas Ryan Peninsula |
Complaint(s):
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-00038891-001 | 24/07/2020 |
Date of Adjudication Hearing: 25/04/2022 and18/05/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities.
The initial hearing of this matter took place on 25 April 2022 and was adjourned due to the non- attendance of the Respondent. The Respondent’s representative clarified at this hearing that the correct name of the Respondent was Athboy Plant Hire Limited, which was in line with the name on their submission. I therefore changed the name on the decision to reflect this.
Both the Complainant as well one witness on behalf of the Respondent gave relevant sworn evidence and were cross-examined at the hearing on 18 May 2022.
Background:
The Complainant commenced his employment with the Respondent on 7 January 2019 as a teleporter driver and was paid €700 per week. He stated that he was dismissed from his employment on 5 July 2020 when he was informed by the Respondent that the main contractor on the site he was engaged on in Duleek had sourced a driver themselves and that there was no work for him as a result. The Respondent disputed this and stated that the Complainant had resigned on the previous Friday 3 July 2019. |
Summary of Complainant’s Case:
The Complainant commenced his employment with the Respondent on 7 January 2019 as a teleporter driver. He was employed mainly on a site in Duleek initially but subsequently transferred to other sites on which the Respondent operated in Portlaoise, Lucan and Stepaside in early summer 2020. The Complainant stated that when he was on the site in Stepaside he was repeatedly asked by the Respondent to work an extra hour and a half everyday which he claimed he was unable to do as he had other family commitments in the evenings On Monday 22 June 2020, while driving home from the site in Stepaside, the Respondent called him and informed him that the main contractor had sourced another driver to do the hours that they needed to be done on the site and that there was no work for him there the following day as a result. The Respondent also told him that they would call him the next day to let him know where he was going for the rest of the week but he failed to do so. The Complainant stated that he tried calling and texting the Respondent on Wednesday 24 June but he received no reply. As a result he drove to the yard where he met the Respondent who informed him that the main contractor did not want him on the site in Stepaside because he was driving around site with the jack legs of the teleporter fully extended. When the Complainant asked him where he would be for the rest of that week he again told him that he would call him later on that evening, which he failed to do, but that he would definitely be back to his normal job in Duleek on Monday 29 June. He went back to Duleek as promised and worked as normal that week until he called the Respondent about his wages for previous week on Friday 3 July wherein he was told that he would not be paid for the previous week because he was not at work. He informed the Respondent that if he did not get paid for what he was owed in respect of the previous week, he would not be going into work in Duleek on the following Monday 6 July 2020. The Complainant stated that he sent a text message to his boss on the Sunday 5 July however to let him know that he would be going into work next day and got a message back 5 hours later saying he had no job as he had handed in his notice on the Friday which he disputed. The Complainant stated that he called the Respondent straight away to clarify the matter and alleged that the Respondent informed him that the main contractor in Duleek was getting their own driver in from Monday morning. When the Complainant called the site however on the Monday morning to see who was doing his job, he was informed that it was another employee of the Respondent. |
Summary of Respondent’s Case:
The Respondent denied that the Complainant was dismissed from his employment and stated that he resigned in a conversation he had on 3 July 2020 on the Duleek site surrounding the alleged non payment of wages. It was also asserted that there had been difficulties with the Complainant on the previous site in Stepaside because he was driving around site with the jack legs of his teleporter fully extended and because he was unwilling to work overtime in the evenings as required by the client which meant that they had to source another worker to do the job. It was also stated that the Complainant was given a verbal warning for not turning up for work on one occasion and that a letter was sent to him on 27 August 2020 asking him to reconsider his resignation but he did not respond. |
Findings and Conclusions:
THE LAW: Section 1 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: (1) In this Act—
Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows: 4) 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 one or more of the following: (a) the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Section 6(6) of the Act states as follows: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal. Section 7 of the Act, in relevant part, makes provision as follows: (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had…. (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal ANALYSIS I note in the first instance that dismissal as a fact is in dispute in this case. Specifically, the Respondent claimed that the Complainant resigned on 3 July 2020 while the Complainant claims that he was dismissed. It is therefore for the Complainant to establish that a dismissal in line with the definition set out under the Act occurred. I note firstly that the Complainant disputed that he resigned on 3 July 2020 and stated that that he sent a text message to the Respondent on 5 July who informed him by reply that there was no job for him because he resigned. When the Complainant subsequently called him and disputed that he had resigned, the Respondent then informed him that the main contractor on the Duleek site were starting their own driver in from the following morning and that there was no work for the Complainant as a result. The Complainant stated that on 6 July another direct employee of the Respondent assumed the role that he had been fulfilling the previous week however. While the Respondent did not dispute this in evidence, he stated that this other employee was only doing this role for a week and that the worker that the main contractor engaged started the following week, namely 13 July 2020. If I accept the Complainant’s position, then the dismissal was unfair because his position was effectively made redundant and there was no consultation whatsoever with him in relation to the redundancy. Specifically, there is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. On the same issue of consultation, in the matter of O’Kelly v Exil Limited UD 1086/2017, the employer was found not to have acted reasonably and fairly as there were no meetings with the Complainant prior to redundancy and no discussion with the employee about suitability for alternative positions. As well as the failure to adequately consult and engage with the Respondent, I also note that there was no avenue of appeal provided to him. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, it would appear that the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner. Even if I accept the Respondent’s position that the Complainant resigned on 3 July 2020 and was not in fact dismissed as the Complainant asserted, I have regard, given the particular circumstances of the alleged resignation, to the UK case of Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156, where it was held that if an employee resigns in the heat of the moment and special circumstances exist, then an employer should investigate the matter and ascertain the employee’s true intentions. In the instant case, I note that if the employee was in fact deemed to have resigned, as the Respondent asserted, it was only because he was not paid the wages he was due on Friday 3 July 2020, which I am satisfied constitutes special circumstances. I also note that the Labour Court in Charles Shinkwin v Donna Millett [ED/03/33] held that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The Labour Court went on to note that: “The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case”. In the instant case, I note that the Complainant contacted the Respondent on Sunday 5 July, only two days after the Respondent claimed that he resigned and asked him if he was returning to the site in Duleek on Monday. I therefore find that, even if the Complainant resigned as the Respondent asserted, he changed his mind within a very short period of time and sought to resume employment very quickly. In light of the cases cited above, I believe that the Complainant should have been given the opportunity to resume his employment on 6 July if he did in fact resign on 3 July as the Respondent asserted. Finally, I note that the Respondent wrote to the Complainant on 27 August 2020 and there was no suggestion from this correspondence that the Complainant resigned his position. Specifically, the letter from the Respondent stated: Dear Aaron We still have not heard from you in some time. I assume you are still available for work and therefore I am putting you on the roster for the week of Monday 31st August 2020. You might please confirm your attendance as soon as possible This email would appear to support the Complainant’s view that he did not in fact resign. Overall, I find that, whether the Complainant was dismissed on Sunday 5 July 2020 by the Respondent as he (the Complainant) asserts OR whether he was not allowed to resume his role by the Respondent on 6 July because he had resigned on 3 July as the Respondent asserts, he was unfairly dismissed for the reasons set out above. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have found that the Complainant was unfairly dismissed for the reasons set out above. Section 7 of the Unfair Dismissals Act, in relevant part, states that:
(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
3) In this section—
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
I note the Complainant’s preference for compensation as a remedy and consider that this is the appropriate form of redress in this case. In deciding on what level of compensation to award, I note that the Complainant found a new role at the beginning of September 2020 where he earned a greater remuneration package than he had with the Respondent. I note that he was subsequently dismissed from this role in May 2021. Accordingly, his financial loss is confined to the period from when he was dismissed from his position with the Respondent at the beginning of July 2020 to when he began his new role in September 2020. Having regard to the absence of any documentation whatsoever from the Complainant to demonstrate that he was looking for work during the period that he was unemployed as well as his inflexibility surrounding his finish times and the fact that he was dismissed by the Respondent without any regard to fair procedure, I make an award of €3,500 in respect of the unfair dismissal. |
Dated: 1st June 2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
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