ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031864
Parties:
| Complainant | Respondent |
Parties | Mariusz Wierzbicki | John Murphy Concrete Limited |
Representatives | Paul Gallagher BL instructed by Anderson Gallagher Solicitors LLP | Adrian Tennant, Tennant Consulting Ltd |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042384-001 | 09/02/2021 |
Date of Adjudication Hearing: 14/07/2021 and 25/01/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 9th February 2021, the complainant submitted a complaint pursuant to the Unfair Dismissals Act. The complaint was initially referred to adjudication on the 14th July 2021 and adjourned because of a legal issue. The hearing resumed on the 25th January 2022. Both hearings were held remotely.
The complainant attended and was represented by Paul Gallagher BL instructed by Emer Doyle, Anderson & Gallagher solicitors. John Murphy, director attended for the respondent, and it was represented by Adrian Tennant, Tennant Consulting.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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.
Background:
The complainant outlined that he was unfair dismissed; the respondent denied the claim and submitted that the complainant did not have one year’s service. |
Summary of Respondent’s Case:
The respondent submitted that the complainant worked for the respondent pursuant to separate contracts of employment. The last period of employment started on the 8th April 2020 and this employment ceased on the 22nd September 2020. It was submitted that the complainant had less than 12 months’ service. The respondent outlined that the complainant worked for the respondent between the 17th July 2017 and the 27th March 2018, when he resigned. He then worked between the 18th June 2018 and the 12th November 2019. The respondent submitted that his employment then ended, and he was paid cesser pay. This marked the end of the complainant’s employment and was not a period of lay-off. A new contract was issued to the complainant on the 7th April 2020. The respondent referred to the First Schedule to the Minimum Notice and Terms of Employment Act, which provides that termination breaks continuity in service. The respondent outlined that the complainant’s employment was terminated because he was absent from work, and not because of an injury at work. It was only after the end of the employment that the respondent became aware of the complainant’s contention that he had incurred a workplace injury. The complainant had not attended work at 7am on the 2nd June and it was only at 9am that he whatsapped to say that he was not attending work because of a hand injury. In a letter sent the following day, the respondent informed the complainant that he needed to send in weekly certificates. The certificates submitted by the complainant did not state the cause of the injury. On the 14th June, the respondent informed the complainant that he had not sent in certificates and was therefore not complying with company policy. The respondent outlined that the complainant continued to be absent from work. It sent a registered letter to the complainant on the 19th August, inviting him to a disciplinary meeting on the 21st August. The complainant did not attend but attended the rescheduled meeting on the 1st September. They discussed whether the employment could continue. The complainant said that his contract was out of date, the respondent replied that he had a contract of indefinite duration. The respondent then wrote to the complainant on the 14th September 2020 to terminate his employment on the 22nd September. This was redirected to the complainant’s new address and the respondent wrote on the 1st October to confirm the end of the complainant’s employment. The letter of the 22nd September enclosed a cheque for the outstanding leave accrued. In cross-examination, the director said that he had not believed in November 2019 that the complainant would be returning. The director was not in contact with the complainant between November 2019 and April 2020. The director said that he had the complainant’s details on his phone in order to ask him to return in April 2020. The director said that Polish colleagues had told him that the complainant was still available. The director said that he received the complainant’s sick certs regarding a shoulder injury. The director said that there were fewer physical roles, for example driving a forklift. The director said that they did not consider lighter duties as there were no roles available. The director accepted that the letters sent before the meeting of the 1st September did not refer to the complainant’s possible dismissal. The director said that there was no reason to refer the complainant to occupational health. The director said that there was no reason to investigate the injury as there was no report to say that it was related to work. In closing, the respondent emphasised that the complainant was absent from work, and this was not a work-related injury. In McKevitt, the driver had posed a danger, and this grounded the employee’s early retirement. The respondent distinguished Humphries as there, the employer had relied on the employee’s medical condition to ground the dismissal. |
Summary of Complainant’s Case:
On affirmation, the complainant outlined that he had worked for the respondent in 2018 and 2019. Five employees were dismissed in November 2019, and he was re-employed after the winter season. He said that there had not been enough orders, so they could not be employed. At the time, the director had mentioned the possibility of getting more orders but had not specifically said that he might be offered new employment. The complainant said that other employees asked if he was available to return and he had not found alternative employment. He outlined that he developed problems with his elbow and shoulder from lifting heavy 30kg buckets. He submitted medical certificates. He had only received one of the respondent letters as the others were sent to the wrong address. He outlined that the respondent had not asked about his health situation or how he was. The complainant said that he believed he was let go because he was on sick leave and that the respondent treated employees like slaves and treated him worse than a dog. He said that the word ‘dismissal’ had not been used at the meeting. He did not understand the letter fully because of his English. In cross-examination, the complainant accepted that he had received the letter of the 12th November 2019 and as he could not understand it, his colleagues explained to him what it meant. The complainant outlined that at this time the respondent director had informed him that he would come back in the springtime when there were orders. The complainant outlined that the director stated in November 2019 that there was not enough work but that they would go back to work in the springtime. The complainant said that he preferred to text rather than phone when he was sick because of his level of English. The complainant said that he did not receive many of the letters and had texted or emailed his new address. The complainant said that no one asked him about his injury at the meeting of the 1st September 2020. The word ‘dismissal’ was not used at the meeting, and he was not supplied with the minutes. The complainant said that he stopped submitting the certificates when a colleague explained to him that the letter said that the complainant had already been dismissed. The complainant had not understood the letter. |
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. During the first scheduled day of hearing, an issue arose whether the complainant had a year’s service in order to bring a claim of unfair dismissal. There was no claim that the complaint was on an excepted basis, not requiring one year’s service, for example, inter alia, for making a protected disclosure or trade union activity. Service to bring a complaint of unfair dismissal On balance, I find that the complainant has established that, as of the termination of his employment on the 22nd September 2020 he had one year of service. This finding of fact must, of course be based on a finding that the events of the 12th November 2019 did not terminate the employment relationship. I agree with the respondent’s submission that a ‘termination’ pursuant to Regulation 4 of the Schedule to the Minimum Notice and Terms of Employment Act would break service for an unfair dismissal claim. I find as fact that the events of the 12th November 2019 did not ‘terminate’ the complainant’s employment. I reach this finding for the following reasons. The first reason arises from the respondent’s letter of the 12th November 2019. This is not addressed to the complainant but to ‘whom it may concern’, e.g. the Department of Social Protection. It refers to ‘due to a seasonal downturn in business I have to terminate [the complainant’s] employment. The reference to ‘seasonal downturn’ indicates that this was not a permanent cessation of employment. The second reason is the complainant’s evidence. He referred to being informed of being brought back once orders came in during the new year. The employer had access to an experienced body of workers who could not be employed in a slow time, but were ready to come back when orders came in. I note that the complainant signed contracts of employment for each period, including the contract of the 7th April 2020. They refer to a ‘contract of indefinite duration’. I find that there was no act that sufficiently or clearly ended the contract of indefinite duration held by the complainant. It is significant that the complainant signed three contracts of employment, but only once completed a ‘New Employee Details’ document, giving his address and bank details. This Employee Details document is dated the 17th July 2017 and indicates when this employment commenced. It is a fact of some significance that this document was not re-formulated in later years, suggesting continuity between 2017 and 2020. If the complainant was in fact a new employee in 2018 and 2020, surely he would have completed a ‘New Employee Details’ document. The only document pertaining to the events of the 12th November 2019 is the ‘to whom it may concern’ letter regarding a seasonal downturn. This contrasts greatly from the correspondence of September 2020, which is very clear that the complainant’s employment was being terminated. The September 2020 letter is clearly addressed to the complainant and not to ‘whom it may concern’. The 2020 letter cites a clear reason to terminate the employment – the failure to provide ‘regular and efficient service’ and not to a seasonal downturn. In conclusion, as of November 2019, the complainant held a contract of indefinite duration and nothing in November 2019 suggested a permanent end to the contract of employment. There was certainly a cessation of hours, and this was said to be seasonal. The complainant returned in 2020 bit without completing a ‘New Employees’ document, because his employment subsisted and was not new. This was all within the terms of his contract of indefinite duration. The letter of the 12th November 2019 was a letter of cessation, rather than a letter of dismissal. It, therefore, follows that the complainant has at least one year’s service and may bring a complaint pursuant to the Unfair Dismissals Act. Unfair Dismissals Act – application of the facts to the law I accept that the respondent ended the complainant’s employment because he was absent from work and not because he incurred an injury at work (the latter is disputed and subject to personal injuries proceedings). The question is whether the respondent has discharged the statutory presumption that the dismissal was unfair. The further question is whether the respondent can rely on grounds such as capacity or other substantial groups to justify the dismissal. It was always clear that the complainant was not attending work because he was unfit to do so. The certificate, for example, of the 2nd June 2020 states that the complainant was ‘unfit to attend work … due to right shoulder pain’. The complainant submitted 15 medical certificates on similar grounds. This puts the complainant’s later dismissal clearly as one made on his incapacity to work. The well-established test in assessing a dismissal on grounds of capacity was set out in Bolger v Showerings (Ireland) Ltd [1990] ELR 184. This stated that the onus is on the employer to show: “1. That it was the incapacity that was the reason for the dismissal 2. The reason was substantial 3.The employee received fair notice that the question of his dismissal for incapacity was being considered; and 4.The employee was afforded an opportunity of being heard.”
It is fair to say that there was a communication breakdown in this case. This arose from the complainant’s relative lack of proficiency in English and the letters sent to an old address for the complainant. It is clear that the complainant did not understand that his job was on the line before he was dismissed. The complainant continued to send in medical certificates after his dismissal as he had not understood what the letter of dismissal meant. The complainant did not update the respondent as to his new address, and the respondent wrote to the complainant at the complainant’s address on file (and the address cited on the medical certificates). I accept that the complainant did not receive these letters. I can see how the respondent sending letters which were not addressed or replied to could lead the respondent to conclude that the complainant simply was not engaging. I find that the non-receipt of the correspondence caused the respondent to assume that the complainant was not adequately engaged. In fairness to the complainant, he engaged whenever he received communication, for example on whatsapp, by email or by text. I accept that there was no mention of dismissal at the meeting of the 1st September 2020. Given the complainant’s proficiency in English, it was all the more important to make clear to him what was at stake at the meeting. This meant that steps 3 and 4 in Showerings were not adequately completed. It follows that the respondent has not established that the dismissal was not unfair. The complaint, therefore, succeeds. Redress As noted, the complainant could not work for the respondent because of shoulder pain. He worked in roles requiring manual labour and he continued to be injured. There was, therefore, little mitigation. Given that the Unfair Dismissals Act permits an award of compensation for ‘financial loss’ and in the circumstances, I award compensation of €3,500. |
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.
CA-00042384-001 I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €3,500. |
Dated: 13th February 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / continuity of employment / incapacity dismissal |