Employee

Employer

Anonymised Parties

A Bricklayer

 A Construction Company

Representatives

  Self- Represented

 No  Appearance

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046612-002

11/10/2021

The hearing was conducted remotely 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.

The Complaint Form was submitted on 11 October 2021 to the Workplace Relations Commission.  There was no response from the Employer to the request to have this matter dealt with by the Workplace Relations Commission. Therefore, I proceeded with the hearing.

Text messages and emails were furnished by the Employee.

The Employer did not appear at the hearing despite waiting a reasonable time. Correspondence was received from the Employer together with a request for an adjournment. The Employer was clearly advised to attend the hearing but failed to do so. Therefore, I proceeded in its absence as I am satisfied it was on full notice of the hearing.

The Employee was employed as a bricklayer with the Employer from 24 May 2021 to 24 September 2021. The Employee confirmed he received a net weekly sum of €707.65 but was unable to advise as to his gross sum as he stated he did not receive a contract of employment. He worked 39.5 hours per week.

It was his claim that he was moved off the construction site he was working on by the Employer when he was identified by the main contractor who he previously took a claim against. Around this time, he stated the director of the Employer started to act in a strange manner towards him by criticizing his work and delaying in wages. The Employee sought recourse around the wages issue.

He was moved to another site and again he stated the Employer raised issues with his work. The Employee the issue was with his colleague’s work and not his. The Employer was then instructed to a third site in September 2021, but the Director was not happy with his work. It was the Complainant’s claim that he gathered his tools and left the site. He further stated at the hearing that he told the Director via text message that “he would consider himself dismissed unless I hear from you.”. There was no further correspondence from the Employer.

Following the hearing the Employee furnished a copy of that text message dated 23 September 2021 at 09.58, which stated:

“…as I said before if your not happy with me no problem whatsoever I can finish week or now cheers"

A second follow up message was sent by the Employee on the same date at 10:28:

“That’s fine I will take it that your not happy from my calculations and through openings its more like 200 blocks laid yesterday. Good luck and appreciate if you can fix up with me asap.”

In terms of his financial loss the Employee said he obtained alternative employment in or around July 2022 at a rate of €25 per hour working 40 hours per week. Prior to obtaining this role he worked for 6-7 days in November 2021. He stated he was unable to gain alternative full-time employment from September to December 2021 as it was a bad time of year for building. He was on Carer’s Leave from January to July 2022.

There was no appearance by the Employer.

It is the Complainant’s case that he was constructive dismissal due to the conduct of the Employer.

It is noted there were emails presented by the Employee which he stated were between him and the Employer. However, the emails before me are dated August 2022, after the dispute was filed with the WRC and involved a party other than the Employer. The Employee did explain that they were only a screen shot of the actual emails. No other emails have been received to date from the Employee therefore I cannot take them into the consideration.

The focus in this claim is around the text messages sent by the Employee to the Employer on 23 September 2021 and the interpretation of his words.  At the hearing he advised he gave the Employer an ultimatum that unless the Employer got in touch with him, he would consider himself to be dismissed. This is not what was written in the text messages which the Employee furnished after the hearing. Reading the words in plain English, it can be safely concluded that the parting of ways was amicable with the Employee wishing the Employer “good luck” at the end of the message. There were no words that could be considered as hostile. The focus of the messages together with the Employee’s submission at the hearing was an issue of payment. Where there is a separate and distinct method of redress for claims around payment of wages apart from the Industrial Relations procedure.

On that basis, I am satisfied to recommend this claim does not amount to a constructive dismissal claim. 

 I recommend that the Employee’s claim for constructive dismissal fails.

Industrial Relations