Complainant

Respondent

Parties

Jozef  Rudak

Fitzgerald Marine Manufacturing Ltd.

Representatives

Daniel Snihur, Independent Workers' Union

 No Appearance by or on behalf of the Respondent

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-00048457-001

03/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00048457-002

03/02/2022

On February 3, 2022, the IWU lodged two complaints against the Respondent Marine manufacturing business on behalf of the Complainant, a boat builder. The Complainant submitted that he had been unfairly dismissed and denied payment in lieu of notice.

The Respondent has been on notice of the claim since 9 February 2022.

On 27 March ,2023, a number of days prehearing, I canvassed both parties in seeking outline submissions as mentioned on the notification of hearing.

I received an outline submission from the Union.

On 28 March 2023, the Respondent made a request to postpone the hearing, which was unsuccessful.

The Respondent did not file a defense in the claim or make an appearance at hearing.

Instead, Mr. Fitzgerald for the Company submitted the following to the WRC, in the context of the request to postpone the hearing on 31 March 2023.

Dear Sirs.

Wish to confirm will not be attending on 31st March.

Fitzgerald Marine Manufacturing ltd has not been trading for the last year.

Company has no assets and in huge financial difficulties.

They company will be put into liquidation shortly.

No documentation accompanied that submission. No documentation has followed to demonstrate Liquidation.

The Union represented the complainant at hearing.

CA-00048457-001 Claim for Unfair Dismissal

There was no appearance by or on behalf of the Respondent at hearing. The Respondent did not file a defence in the claim.

CA-00048457-002 Claim for Minimum Notice

There was no appearance by or on behalf of the Respondent at hearing. The Respondent did not file a defence in the claim.

The Union submitted that the complainant had worked continuously with the Respondent boat business from 2 January 2016 to the date of his dismissal on 18 November 2021. He worked a 44-hour week in return for a weekly wage of €650.00. He was on covid lay off from March 2020 to September 2021.

The Union outlined that the Complainant returned to work on 21 September 2021 in the aftermath of Covid 19 lockdown restrictions.

 From 2020 onwards, the complainant had begun to make enquiries regarding work related documents at his work as he wanted to secure a mortgage. He had not managed to secure a mortgage.

An incident arose where the Complainant contended that he was provoked by his employer and refused a start back in the workplace. The Complainant went home, and the Union commenced an interparty correspondence with the respondent.

There was no contract of employment and some notable gaps in PRSI records which did not correspond with the complainant’s presence in the workplace. The Union said that the complainant was paid by a combination of bank transfer and cash.

Inter Party Correspondence 21 September -18 ~November 2021

15 September 2021, the Respondent informed the Complainant that “full time work is now available. Please return to work on Tuesday, 21, September, 9am” the Union exhibited this email at hearing.

21 September 2021 Union to Employer:

The union contended that the complainant had been dismissed on 21 September 2021

23 September 2021 Employer to Union

The Respondent recorded an abusive exchange from the complainant on his return to work. A meeting was proposed “to discuss what happened on 21 September.

24 September 2021 A letter issued from the Respondents Solicitor, which outlined that the “. complainant will be required to apologise for his language and give an explanation as to why he left “

The correspondence continued through October 2021 and November 2021. The Union contended that the complainant was faced with a pre-condition of an apology in respect of the proposed inter party meeting.

The Union contended that the complainant had been dismissed and, in the alternate, requested he been given a return-to-work date.

On 16 November ,2021, the complainant received a letter from the respondent, which emphasised the complainant’s involvement in his own business and queried his commitment and availability to the respondent and concluded:

“ we await hearing from you within seven days from the date of this letter in respect of Mr REudaks position in terms of his work commitment to the respondent and his willingness to turn up top work on each and every day required of him by his work schedule …………Secondary to this will be the requirement that he would attend at a meeting with the company in respect of events which transpired on  the 21 September, last .”

On 18 November 2021, the Union wrote a final letter to the respondent, and I have incorporated this in full.

“I am in receipt of your letter of 16 November, and I am disappointed by its contents. The Company insists on projecting a view that Mr Rudak is guilty of some offence and is looking for a meeting in which he will atone.

Mr Rusdak is not guilty of any offence and wishes to return to work. Should he not be offered a return date, he will have been locked out of his employment. If my assertion is incorrect, please set a date for his return to work, without preconditions.

Should a meeting be required to air grievances, so be it.”

The Respondent did not respond to this letter and in the absence of a proffered return to work date, the complainant considered that he has been dismissed.

It was the Unions case that he had been unfairly dismissed, not paid cesser pay and denied notice.

The Union contended that the complainant had been treated unfairly by the respondent following an earlier case under terms of employment  before the WRC in August 2021. This case went in favour of the complainant .

The Complainant had been unable to secure a mortgage as he could not demonstrate a sequencing of bank payments.

The Union confirmed that the complainant was in business with his wife. He did not submit documents in proof of mitigation of loss.

Evidence of the Complainant

CA-00048457-001 Claim for Unfair Dismissal

The Complainant confirmed that he had been in continuous employment until his dismissal, and he found new work one day later at his family business. He confirmed a period of 1.5 years break due to covid pandemic.

The Complainant said that he had returned to work on 21 September 2021. He submitted that he stayed in his car from 7.45 am until 8.55am.

He found, Mr A the owner, waiting for him in the yard. He observed that he was angry and demanded he forfeit his mobile phone. He refused.

A compromise was reached when the complainant placed the phone in his car. He had reservations about this as he had family in the United States.

Mr A then directed him to change his clothes in a different area than usual. He did not complete this request.

The Complainant answered back, and verbal conflict ensued. The Complainant said that he had been taunted by his employer close to his face and he went home. He understood that Mr A had taped the conversation without seeking his permission. He approached his Union for representation. He felt targeted on foot of an earlier issued raised regarding holidays.

In clarification, the complainant confirmed there were no company policies on grievance, disciplinary or mobile phone use at work. He did not have official documentation associated with the employment. As far as he was aware he had not been replaced.

He confirmed that he believed the respondent company was trading as he had seen activity at the yard.

The Complainant had received the PUP payment March 2020 to September 2021. He had not claimed job seekers benefit 21 September to 18 November 2021 and had sustained financial loss. He said that after this, he had earned €100 per week at his family business and had sustained an unspecified loss.

He submitted that the invitation to return to work was received 3 weeks post a WRC hearing and this was the sole correspondence exchanged during his covid pandemic leave.

The Complainant alluded to unspecified problems with casual staff but confirmed that he was the sole employee.

He told the hearing that he believed that he had been unfairly dismissed as a retaliatory action for challenging his status at the company and now worked 100% of his time at his family business. He had lost trust in his former employer.

CA-00048457-002 Claim for Minimum Notice

The Complainant contended that he was owed four weeks’ pay in lieu of notice as this had not been addressed at the conclusion of his employment.

I have been requested to make decisions in both employment rights cases. While the Union referenced an earlier case before the WRC, I was not furnished with supporting documentation.

In arriving at my decision, I have provided an opportunity for both parties to be heard. The Respondent did not avail of the opportunity.

I am satisfied that the Respondent was on full notice of the hearing time date and location and decided not to attend. The request to postpone the hearing was refused by WRC. I have found the decision by the respondent not to attend the hearing to be unreasonable. While the company may have anticipated changed circumstances, I would have liked to have met both parties at hearing.

This is brought into sharper focus when I consider that the Respondent carries the burden of proof in this case.

I have concerns regarding the reported gaps in the Complainants PRSI records and the Union has advised the matter is being addressed.

CA-00048457-001 Claim for Unfair Dismissal

At the heart of every employment runs mutuality of obligation and an implied term of trust. It is a relationship that faces good days and bad days, but it is vital that parties in this relationship speak and listen to each other.

The foundation of any employment relationship is a contract followed by a pay slip. These are the currency and consideration of the relationship. When these are missing, the parties can drift into polarised positions very quickly and this is what seems to have occurred here.

A period of over 5 years of continuous employment ended on November 18 ,2021.

The Law on Dismissal is set out in the Unfair Dismissals Act, 1977.

Section 1 defines a dismissal as:

“dismissal”, in relation to an employee, means—

(a)   the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

In this case, the Union confirmed that the Complainant was not provided with a contract of employment. I did not have the benefit of a countering position from the respondent.

“Contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing.

Section 6(1) of the Act outlines a Statutory Unfair Dismissal:

. — (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.

This means that there must be substantial grounds justifying the dismissal. In aide of a Respondent a defence is available for a Respondent in Section 6(4) of the Act.

In the instant case, the Response did not file or articulate a defence. The burden of proof in a claim for statutory unfair dismissal rests with the Respondent.

In accordance with section 6(7) of the Act, I am permitted to consider whether the actions of the Respondent fit the “band of reasonableness “that is, was the decision to dismiss the complainant one that was reasonably open to a reasonable employer?

I have read the interparty correspondence. I have listened to and considered the complainants evidence, which was all that was available to me.

I am satisfied that the complainant was invited back to work on September 21, 2021, after a long covid pandemic related absence.

This was not a “red carpet related return to work “as I accept the uncontested evidence of the complainant that conflict appeared from the outset. He stayed in his car until the very last minute before commencing work.

It is regrettable that the employment is bereft of employment related documentation. In this case, the documents which allow me to consider the circumstances of the employment, which bind the parties in conflict are the inter party correspondence 21 September 2021 to that of November 18, 2021.

I accept that the complainant experienced behaviour from the respondent, which he found  unacceptable to his dignity, and this caused him to leave the plant on his first day back. He attributes this to a residual; awkwardness following an earlier WRC case. I have not been provided with details of this case, which I’m informed was not appealed.

I have considered how that law expects an Employer to behave in accordance with Section 8 of the Safety Health and Welfare at Work Act,2005

General duties of employer.

8.— (1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(2) Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(b) managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.

(c) as regards the place of work concerned, ensuring, so far as is reasonably practicable—

(i) the design, provision and maintenance of it in a condition that is safe and without risk to health,

(ii) the design, provision and maintenance of safe means of access to and egress from it, and

(iii) the design, provision and maintenance of plant and machinery or any other articles that are safe and without risk to health.

(d) ensuring, so far as it is reasonably practicable, the safety and the prevention of risk to health at work of his or her employees relating to the use of any article or substance or the exposure to noise, vibration or ionising or other radiations or any other physical agent.

(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health.

(f) providing and maintaining facilities and arrangements for the welfare of his or her employees at work.

(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees.

(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3;

(i) having regard to the general principles of prevention in Schedule 3, where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.

(j) preparing and revising, as appropriate, adequate plans and procedures to be followed and measures to be taken in the case of an emergency or serious and imminent danger.

(k) reporting accidents and dangerous occurrences, as may be prescribed, to the Authority or to a person prescribed under section 33, as appropriate, 

The Employee is equally obliged to honour Section 13 of the Act

Duties of employee.

13.— (1) An employee shall, while at work—

(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work,

(b) ensure that he or she is not under the influence of an intoxicant to the extent that he or she is in such a state as to endanger his or her own safety, health or welfare at work or that of any other person,

(c) if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed,

(d) co-operate with his or her employer or any other person so far as is necessary to enable his or her employer or the other person to comply with the relevant statutory provisions, as appropriate,

(e) not engage in improper conduct or other behaviour that is likely to endanger his or her own safety, health and welfare at work or that of any other person,

(f) attend such training and, as appropriate, undergo such assessment as may reasonably be required by his or her employer or as may be prescribed relating to safety, health and welfare at work or relating to the work carried out by the employee,

(g) having regard to his or her training and the instructions given by his or her employer, make correct use of any article or substance provided for use by the employee at work or for the protection of his or her safety, health and welfare at work, including protective clothing or equipment,

(h) report to his or her employer or to any other appropriate person, as soon as practicable—

(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person,

(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or

(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person,

of which he or she is aware.

I have found that the parties should have engaged in seeking to resolve the conflict which arose between respondent and complainant on 21 September 2021. I appreciate that this was not helped by the absence of a procedural framework governing the 5-year-old employment.

Negotiations weighed down by requests for pre conditional apologises seldom get off the ground.

Both Parties are required to work to save the employment.

At any rate, my function in this case Is not to determine the innocence or guilt of the employee or whether I would have dismissed him in such circumstances. I must decide what a reasonable employer would have done in the circumstances that faced them. Looney and co ltd v Looney (UD 843/1984)

Did the Employer have a genuine belief, arising from a fair investigation, that the employee was guilty of the alleged misconduct and whether the penalty of dismissal was disproportionate?

Niamh Shelley v Suir Pharma Ireland ltd t/a Suir Pharma, UD 142/2015

First, I must be satisfied that a dismissal occurred.

It is clear from the complainant’s evidence that he retreated from an unsafe workplace on the morning of September 21, 2021.

Once more, I lack collateral for this from the respondent.

However, I must look to the respondent as having the lions share of the responsibility in the mutuality of obligation model. He provided the workspace, pay and work. None of those were available to the complainant after September 21, 2021. He activated a grievance through his Union, which remained unresolved and did not result in a return to work for the complainant.

I wondered for a while whether the provisions of section 5 of the Act were at play through “lock out.

“Dismissal by way of lock-out or for taking part in strike.

5.—1) For the purposes of this Act (other than section 2 (4)), the lock-out of an employee shall be deemed to be a dismissal and the dismissal shall be deemed to be an unfair dismissal if, after the termination of the lock-out—

(a) the employee was not permitted to resume his employment on terms and conditions at least as favourable to the employee as those specified in paragraph (a) or (b) of subsection (1) of section 7 of this Act, and

(b) one or more other employees in the same employment were so permitted.

……….

(2A) Without prejudice to the applicability of any of the provisions of section 6 to the case, where—

(a) an employee—

(i) is deemed by subsection (1) to have been dismissed by reason of a lock-out, or

(ii) is dismissed for taking part in a strike or other industrial action,

and

(b) none of those who were locked out, or took part in the strike or industrial action, were re-engaged,

in determining whether, in those circumstances, the dismissal is an unfair dismissal, the adjudication officer or the Labour Court], as the case may be, shall have regard, for that purpose only, to—

(i) the reasonableness or otherwise of the conduct (whether by act or omission) of the employer or employee in relation to the dismissal,

(ii) the extent (if any) of the compliance or failure to comply by the employer with the procedure referred to in section 14(1),

(iii) the extent (if any) of the compliance or failure to comply by the employer or the employee with provisions of any code of practice referred to in section 7(2)(d), and

(iv) whether the parties have adhered to any agreed grievance procedures applicable to the employment in question at the time of the lock-out, strike or industrial action. 

(3) The said section 7 shall be construed in relation to an unfair dismissal specified in subsection (1) or (2) of this section as if it contained a requirement that the terms or conditions on which the person the subject of the unfair dismissal is, if appropriate, to be re-instated under paragraph (a) of subsection (1) of that section or re-engaged under paragraph (b) of that subsection included a term that the re-instatement or re-engagement should be deemed to have commenced on such day as is agreed upon by the employer concerned and by or on behalf of the employees or, in the absence of such agreement, on the earliest date from which re-instatement or re-engagement, as the case may be, was offered to a majority of the other employees of the same employer who were the subject of the lock-out concerned or took part in the strike or other industrial action concerned.]

(4) In this section a reference to an offer of re-instatement or re-engagement, in relation to an employee, is a reference to an offer (made either by the original employer or by a successor of that employer or by an associated employer) to re-instate that 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 to re-engage him, 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.

(5) In this section—

“lock-out” means an action which, in contemplation or furtherance of a trade dispute (within the meaning of the Industrial Relations Act, 1946), is taken by one or more employers, whether parties to the dispute or not, and which consists of the exclusion of one or more employees from one or more factories, offices or other places of work or of the suspension of work in one or more such places or of the collective, simultaneous or otherwise connected termination or suspension of employment of a group of employees;

Definition of Industrial Action within the Unfair Dismissals Act 1977

“Industrial action” means lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment.

I am satisfied that the complainant was neither engaged in industrial action or a strike when he was prevented from returning to work over the 8-week period at the centre of this case, i.e., September 21 to November 18, 2021. Instead, he was engaged in an unresolved grievance which meandered on through correspondence, without dialogue.

The penultimate correspondence before me from the Respondent was anchored on the duality of the complainant’s role at his family business and on a secondary consideration of the events of 21 September 2021. The duality appears to have been a firm sub plot in the case .

The Union response exhibited at hearing, denied misconduct, and carried an assertion of the complainant having been “locked out” of his employment.

But importantly, for me at least, it carried a communication of willingness to attend a meeting to air grievances.

This was ignored by the Respondent and is a stark departure from the mutuality of obligation and employer duties reflected under statute.

I find that the actions of the respondent constituted a dismissal on November 18, 2021.

It is clear to me that the respondent carried a frustration regarding the complainant’s duality of roles, and this ran deep into the fault line in the employment relationship.

I find that this is an unfair dismissal. The Respondent has not communicated with the complainant since the 16 November 2021. The complainant did not resign .

The Respondent has not demonstrated substantial grounds for the dismissal. The behaviour of the respondent cannot be accepted as resting within the band of reasonableness by any means.

I find that the Respondent has divested itself of the clear responsibilities of an employer in this case, by placing the spanners of a concern regarding duality of employment, alongside an insistence of a meeting to address a declaration of misconduct which cumulatively formed a boulder and obstacle to return. The Complainant said he was not paid for week commencing September 21 onwards.

In my opinion, the employment ended at the behest of respondent in a totally unfair manner.

I find the complainant was unfairly dismissed on November 18, 2021.

CA-00048457-002 Claim for Minimum Notice

The law on minimum notice is set out in section 4 of that Act.

Section 4(1) (c)

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

I accept the undisputed evidence of the complainant on his continuity of service. I accept that he was not paid notice on leaving this employment. He is entitled to the provisions of section 4(1) (c) of the Act in respect of the contravention.

The claim is well founded.

CA-00048457-002 Claim for Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a                       decision in relation to the complaint in accordance with section 4 of that Act.

 Section 4(1) (c)

(e) if the employee has been in the continuous service of his employer for five years or more, four weeks.

I have found the claim to be well founded. I order the Respondent to pay the Complainant €2,600 in compensation for the contravention of section 4 of the Act.

CA-00048457-001 Claim for Unfair Dismissal

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 on November 18, 2021. I was not satisfied with his level of evidence on loss and mitigation adduced. I would have preferred to have seen a completed loss and mitigation table.

Section 7 of the Act provides for the remedy of compensation, which I find to be the only practical remedy to be applied in this case.

(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 said financial loss was attributable to an action, 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, 

I accept that the complainant has continued to work at his family business. I also accept that he sustained financial loss during 2021 and 2022.

I order the Respondent to award the complainant €13,000 in actual and prospective financial loss. This figure incorporates the financial loss sustained for two weeks cesser pay, the 8 weeks spent outside the business and an element to address prospective loss.

Claim for Unfair Dismissal and Minimum Notice