UDD2231

1.Appeal of Adjudication Officer Decision No(s).ADJ-00026686 CA-00033932-001

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 23 December 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 30 March 2022. The following is the Determination of the Court:-



DETERMINATION:

This is an appeal by Eco Tech Solutions Ltd (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00033932 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim by Tomasz Skrzypczak (hereafter the Complainant) that he was unfairly dismissed. The Adjudication Officer upheld his complaint of unfair dismissal and awarded compensation of €16,384.68

Background

The Complainant commenced employment with the Respondent as a builder on the 19th December 2016. He was dismissed from that employment on the 31stof October 2019. Dismissal is not in dispute, therefore, it is for the Respondent to show that the dismissal was fair.

Summary of Respondent’s submission and evidence.

Mr O’ Donnobhain on behalf of the respondent submitted that the Complainant was employed as a general construction worker. In and around May 2019 there was an issue in respect of the Complainant leaving a key in a door over night and refusing to go up on a roof to work. Working on roofs is a main component of the Respondent’s business. The Respondent does not accept the proposition being put forward in respect of that incident that there was no scaffolding in place. Following these incidents, the Respondent had a conversation with the Complainant about his behaviour. A further issue occurred in September 2019 which again was raised with the Complainant and the Complainant subsequently apologised to the Respondent in respect of that incident. Matters came to ahead in October 2019 when the Complainant refused to accept a direction to come to work.

Mr Stephen Hogan Director of the company in his evidence to the Court stated that there had been on going issues with the Complainant, and he had to speak to him on a number of occasions. On the morning of the 29^thOctober 2019 Mr Hogan stated he was having a phone conversation with the Complainant about the work that was on that day and how if it rained, they would do work filling a skip and cleaning up around the yard which would require the tipper truck, and if it didn’t rain, they would go to a particular site and finish of a job there. The Complainant told him that he was not a sweeper or a cleaner and that he was not going to move muck. The Complainant never showed up for work. On the 30^thOctober 2019 the Complainant sent a text message to say he was not coming to work if it was raining, and he never showed up for work. Mr Hogan stated that on the evening of the 30^thOctober 2019 he drafted up the dismissal letter. He spoke to the Complainant on the phone that evening and told him to bring the tipper truck to a named location the next day. When the Complainant showed up on the next day the 31^stOctober 2019 he handed him the letter of dismissal. He then drove the Complainant home which took about an hour. The Complainant chatted away during the trip which took about an hour and there was no animosity or discussion about the letter of dismissal.

Mr O’ Donnobhain on behalf of the Respondent submitted that the Complainant had the Respondent’s tipper truck on the days that he declined to attend for work, and this impacted on the Respondent’s ability to carry out work. The Respondent is a small business and cannot afford to have employees idle because it rains. The Complainant’s behaviour in refusing to attend for work was gross misconduct and a fundamental breach of his employment contract. Mr Hogan as Director of the Company made the decision to dismiss and based on the circumstances as set out above the decision falls well with in the band of reasonableness test set out in the caselaw. In terms of redress should the Court find that dismissal was unfair then the appropriate form of redress is compensation. Reinstatement or Reengagement are not appropriate in this case in circumstances where the trust between the Respondent and the Complainant has irretrievably broken down. The Complainant is now working so any loss arising from the dismissal is minimal.

Summary of Complainant’s submission and evidence

Mr Tom Kelly BL on behalf of the Complainant submitted that the Complainant is an experienced builder having worked in construction for over 20 years. The Complainant disputes that he refused to come to work on the dates in question. The Complainant was never given a verbal or written warning in respect of the alleged earlier incidents. No process was followed in advance of the dismissal, there was no investigation, no opportunity for the Complainant to be heard. The Complainant in his evidence to the Court stated that there was a breakdown in the relationship he had with the Respondent in the lead up to the dismissal. It was his submission that his duties changed, and he was no longer given skilled work to do. It was his evidence that on the 29^thOctober 2019 he was driving to work when he got a phone call saying it was raining and there was no work, so he turned back and drove home. He called some of his co-workers who said they were working. It was his evidence that Mr Hogan told him not to come to work on the 30^thOctober 2019. He received a phone call on the evening of the 30^thOctober 2019 from the Respondent telling him to come to work in bishop’s town the next morning. When he arrived and parked the tipper truck, himself and Mr Hogan went to the petrol station in the Respondent’s van for coffee. While at the petrol station Mr Hogan handed him the dismissal letter. When they went back to the site the Respondent told him to take his tools from the tipper truck and that he would give him a lift home. The Complainant stated that he read the letter quickly and was surprised that he was being dismissed but he did not say anything to the Respondent. In respect of mitigation of his loss the Complainant stated that he was looking for work in November and December 2019 but could not get any. He started a new job in January 2020 and was earning in and around the same amount of money.

The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

• 6.— (1) Subject to the provisions of this section, 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.
  
  (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 qualifications 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 which 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.

Issue for the Court

Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair.

Discussion

The following facts were not in dispute. The Complainant was not at work on the 29^thand the 30^thOctober 2019. The Respondent handed him a dismissal letter on the 31^stOctober 2019. The Respondent did not utilise the Company disciplinary procedure or any procedure, in coming to the decision to dismiss. The Court finds that the failure to follow any sort of procedure or to allow the Complainant an opportunity to be heard deprived the Complainant of a fair procedure and therefore the process or lack of process meant that the decision to dismiss was made without fair procedure having been afforded to the Complainant. The Court finds that the decision to dismiss was unfair.

The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €6,578 representing the loss he incurred for the eleven weeks he was unemployed. The Court so determines.

Determination

The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is varied as set out above. The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
27 April 2022	Deputy Chairman