Complainant

Respondent

Parties

Fergus  O Rourke

Domac Plant and Tool Hire Ltd

Representatives

Alastair Purdy Alastair Purdy & Co. Solicitors

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-00054091-001

11/12/2022

The complainant submitted that he was unfairly dismissed.  The respondent declined to confirm or deny the allegation and made no submissions and called no witnesses.

The name of the respondent was amended without any objection from the respondent.  The complainant submitted that his gross was €600 and that he worked as a mechanic.  He commenced employment on 5/1/2016 and his employment ended on 18/8/2022.  The complainant said that he has not been able to work since his dismissal and has not been able to look for work since his dismissal as he remains unfit for work owing to his injury and has been without pay and has 4 children to support. 

The complainant gave evidence that he was sent by the respondent to do work in Galway City and that the respondent knew that it was a 2-person job but sent the complainant on his own on 29/5/2021.  He said in his evidence that a gust of wind blew, and he felt a pop and a tear and it took his energy out and when he got his energy back he completed the job.  He went back home and found he could not get up and was unable to get to the doctor.  His evidence was that his back is damaged and that he has done everything that he has been asked and that it will either become perfect of he will end up in a wheelchair.  He had been deemed unfit for work since the incident and on 18/8/22 he attended a meeting accompanied by Sally O’Rourke and it was the first time that the company had been in touch with him.  He said in his evidence that he did not get a letter of 30/3/2022 and said he got copies of the OH assessment report.  He confirmed that he received a letter with a non-disclosure clause at the meeting of 18/8/22 and that he was asked to sign it and that the letter of dismissal was all prepared in advance of the meeting and there were no procedures.

The complainant denied in cross examination that there was a contract and confirmed that he recalled receiving a final written warning.  The complainant confirmed receipt of communication on in March 2022 and said the only communication he received was from the respondent’s Occupational Health provider and that the company contacted him about his gall bladder and his knee and about occupational health appointments.  The complainant said he is on illness benefit and is unfit for work.  He said his absence was not his fault and that he took the letter of 18/8/22 but that he was blindsided by it.

The evidence of Ms Sally O’Rourke was that she attended the meeting of 18/8/2022 and at the meeting there was a man who did not seem to know what was going on and then put an envelope across the table and said to the complainant to take the envelope and we will call it quits.  Ms O’Rourke said that the complainant is living at home since the accident at work happened and that she takes him to the doctor and that he is in a lot of pain.  His choices are either have the surgery or remain as he is.  The respondent declined to cross examine Ms O’Rourke.

The respondent confirmed the correct name of the respondent and made no objection to amending the name of the respondent.  The respondent had provided a submission in advance of the hearing but declined to read or make a submission at the hearing, declined to put forward any witnesses and raised no objection to the complainant referring to the appendices the respondent had provided in advance of the hearing.  The respondent declined to confirm or deny that the dismissal was unfair.

I note requests for an amendment to the name of the respondent without objection and have, therefore, amended the name and for completeness I note that parties are not prejudiced by same.

Pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, 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 are substantial grounds justifying the dismissal. The burden of proof is firmly on the Respondent.

The complainant alleges he had a serious accident at work and was out of work for some time.  The complainant appeared uncertain regarding what correspondence he had received from the respondent.  The respondent declined to make any submission, declined to give evidence and declined to confirm or deny if the submission was unfair or otherwise.  However, I note that the complainant was given a letter by the respondent when he arrived for a meeting on 18th August 2022.  This letter detailed “we have made the decision to terminate your employment on the grounds of capability” and there does not appear to have been any appeal offered to the complainant. 

The requirement for fair procedures has been reinforced in Gallagher v Revenue Commissioners (No. 2) [1995] 11.R. 55 at p. 76) whereby a decision-maker must not act in such a way as to imperil a fair hearing, or a fair result and I find it quite extraordinary that the respondent failed to engage in any procedures.  I further note that in that letter of 18/8/22 the respondent looked for the complainant to sign a note to state that he had“no outstanding claims or matters whatsoever with Domac Plant & Tool Hire Ltd”.  Having heard all the submissions and the undisputed evidence of the complainant, I find that the complainant was dismissed by the respondent without fair procedures followed and I find that this dismissal was unfair.

I note that the complainant remains unfit for work.   As the complainant has been deemed unfit for work there has been no loss accrued under the Act. The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration and I award the complainant €2,400.

Having heard all the submissions and the undisputed evidence of the complainant, I find that the complainant was dismissed by the respondent without fair procedures followed and I find that this dismissal was unfair.

I note that the complainant remains unfit for work.   As the complainant has been deemed unfit for work there has been no loss accrued under the Act. The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration and I award the complainant €2,400.

Unfair dismissal, fair procedures, unfit for work