ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00028170
Parties:
| Complainant | Respondent |
Parties | Ion Tataru | Alandale Logistics (Ireland) Limited |
Representatives | Self-represented | Desmond Ryan BL instructed by Christopher Ryan DAC Beachcroft |
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-00036164-001 | 15/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036164-002 | 15/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036164-003 | 15/05/2020 |
Dates of Adjudication Hearing: 02/02/2022, 11/05/2023 and 12/06/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 15th May 2020, the complainant referred complaints to the Workplace Relations Commission. They were referred to adjudication on the 2nd February 2022 along with complaints from four co-workers. They gave evidence on the first day. The co-workers resolved their issues and this complainant’s case continued to completion. There are three respondents. This respondent is referred to as the ‘employer’. The respondent in ADJ 28156 is the ‘agency’. The respondent in ADJ 28179 is the ‘head contractor’.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant asserts that he was unfairly dismissed and that there were significant employment law contraventions. The respondent denies the claims.
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Summary of Complainant’s Case:
In evidence, the complainant said that he started in October 2016 and did high-level cleaning in data centres under construction. He supplied a big number of people to do the jobs. They worked night shifts. He and his colleagues were not paid for the hours they worked or their annual leave. They were good at their jobs. The complainant outlined that he was dismissed on the 23rd October 2019. His colleagues wrote a letter to the agency to ask that the complainant return to work. The complainant was then called back. In December 2019, they completed the handover and he and his colleagues were all dismissed. The dismissal had grave consequences for him and his family. They lost their house and his family moved to a different country. The complainant said that others were brought back to the next phase of the project, but not him. The complainant got a new job in March 2021. While the agency had said that they were on lay-off, the complainant and his colleagues were not called back when the work resumed. New people were employed in 2020. The agency texted on the 27th November 2020 but did not follow this up with a phone call. There were no periods of lay off in 2016, 2017 or 2018. There were longstanding pay issues and the problems started when he asked for travel money. They worked crazy hours and worked night shifts. In cross-examination, it was put to the complainant that the letter of the 6th December 2019 placed him on lay-off; he said that others were retained. He did not look for other work as he was told he would be taken back. It was put to the complainant that there was an offer made to him by the agency on the 20th January 2020. The complainant replied that this was not a real offer of work. It was put to the complainant that he had acted unreasonably in not pursuing this offer of alternative work. It was put to the complainant that as a cleaning supervisor there must have been many opportunities for work in the pandemic, he replied that he could not look for work as it was very hard. It was put to the complainant that there was an even greater need for experienced cleaning supervisors in the pandemic; he replied that there were no vacancies, and he was waiting to go back to work. It was put to the complainant that he had failed to demonstrate efforts to mitigate loss; he did not agree. In further cross-examination, the complainant said that the job offer in December 2019 was a ‘clear lie’. It was also a lie that he was offered an operative role. In closing, the complainant said that he was dismissed for asking questions about pay. He had not been paid Sunday pay and for night shifts. He was promised that this would be a six-year role, but it was not for him. The complainant provided additional documentation after the hearing. Evidence of Mr Paatashvilli Mr Paatashvilli worked for the employer in 2016 on site and said that they worked seven days per week. They also worked at night. He was fired without notice in 2016. |
Summary of Respondent’s Case:
Evidence of Christian Subu Mr Subu said that he had been Regional Commercial Manager. In 2019, he instructed the agency that high level cleaning was no longer required. It was in their interest to keep the complainant and his colleagues in employment because of their qualifications. The complainant was laid off and not dismissed. High level cleaning would resume down the line. The comlpainant was offered an operative role but declined this. He had been laid off himself for about a month. He could not recall the October 2019 dismissal and the petition. In cross-examination, Mr Subu said that all hours were recorded as there were stringent security on site. Evidence of Richard Glennon Mr Glennon is the logistics manager for the employer. The high level cleaning had ceased in December 2019, so the employees were placed on lay-off. This was temporary, although it was not clear when work would resume. The complainant was not dismissed in October 2019, rather he walked off the job. He was aware of the petition but had not seen it. The complainant was offered work on the 20th January 2020. He did not decide who was laid off and denied that his family members were retained. The operative role was offered to the complainant, and this was only €1 an hour less. The high level cleaning resumed in October 2020. |
Findings and Conclusions:
CA-00036164-001 This is a complaint pursuant to the Unfair Dismissals Act. This respondent is the employer per section 13 of the Unfair Dismissals (Amendment) Act, 1993. The complainant’s evidence was that there was an attempt to dismiss him in October 2019 but reversed by his colleagues petitioning on his behalf. The project was finished by the December 2019 deadline and he and all those who signed a petition were dismissed and not placed on lay-off. He did not return to the role at this site. The complainant gave evidence of this, and this account is supported by the petition document. The respondents in these linked cases did not deny that the petition had been drawn up. I note the evidence of the co-workers, which supported the complainant’s account (albeit was not subject to cross-examination as their claims resolved). I find as fact that the complainant was dismissed in December 2019 when he was purportedly laid off. He was, effectively, removed from the site. The complainant was offered alternative roles in January 2020 in other sites, for example two named building sites. He did not take up these roles, significantly curtailing his mitigation of loss. While the complainant was unfairly dismissed, his financial loss is limited as he was offered and did not take up alternative employment. He referred to one job offer not being real, but there is nothing to show why this is the case. It was with a large builder at a named location. For these reasons, I award compensation of €4,000. CA-00036164-002 This is a complaint pursuant to the Terms of Employment (Information) Act. This respondent is not the proper respondent for this complaint, so there can be no contravention. I formally find it not well-founded. CA-00036164-003 This is a complaint pursuant to the Organisation of Working Time Act. This respondent is not the proper respondent for this complaint, so there can be no contravention. I formally find it not well-founded. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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-00036164-001 I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €4,000. CA-00036164-002 I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well-founded. CA-00036164-003 I decide that this complaint pursuant to the Organisation of Working Time Act is not well-founded. |
Dated: 26th June 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Section 13, Unfair Dismissals (Amendment) Act 1993 |