Complainant

Respondent

Parties

Hada  Bazil

Marluc Ltd Baltic Interiors

Representatives

Shonagh Byrne SIPTU

Fiona Egan Peninsula

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-00042759-001

01/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00042759-002

01/03/2021

The company operates a painting and decorating business. The Complainant was employed as a painter. It is alleged that the Complainant was dismissed for gross misconduct relating to his failure to adhere to Government health requirements during Covid by returning to work earlier than he should, after returning to Ireland after travelling abroad.

The Complainant stated that he was asked to return a day earlier than he should have by his supervisor, who knew that he was abroad and stated that he would be working alone and isolated from others.

The Complainant had been employed as a painter and had asked to be placed on the right rate for his trade as per the Sectoral Employment Order for the Construction Industry. The company deny that he was due that rate.

Unfair Dismissal CA-00042759-001

The Claimant went on annual leave to Romania from the 28th of August 2020 until the 11th of September 2020.

At that time a 14-day quarantine/self-isolation period was required when you travelled abroad and returned home.

The company had informed all staff of this requirement in correspondence dated 24th of March 2020. In that communication employees were informed that if they had any queries regarding the Covid measures they should contact the Managing Director.

On or about Friday 25th of September 2020 the Complainant was asked by his supervisor to work on site on Saturday the 26th of September 2020. He was told by his supervisor that it was safe to do so as he would be working by himself, and he was due back anyway on the following Monday.

The Complainant when contacted by his supervisor when he was on leave was given the impression that it was important, and he should come in.

In October 2020 the Complainant queried his wages as he was aware that other painters were on a higher rate of pay. Soon after that query the Company initiated a disciplinary process.

In turn this gave rise to an investigation and a disciplinary hearing followed. Arising from that hearing the Complainant was dismissed for gross misconduct.

The fact find was carried out by a manager on the phone. The Complainant didn’t understand what was going on as English is not his first language. The disciplinary process was conducted by the accountant. Again, it was not clear why this process was started. He did work at the request of a supervisor. He was told it was safe. No punitive step or discipline was taken against the supervisor. He was told off.

No punitive sanction was made against the supervisor, in contrast the complainant was dismissed.

CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015

The Complainant was employed as a Painter.

The statutory rate of pay set down in the  Sectoral Employment Order for the Construction Industry S.I. 234.2017( SEO ) was €18.93. In 2018 the Complainant’s rate of pay was increased to €14.50 from €12.50 per hour. In 2019 the SEO set the rate of pay for a Craftworker as 19.44.

The Complainant received certified training in his country of origin and is a skilled craftsperson.

The sectoral order applied to the complainant:

The section to which the Order should have application is defined as the sector of the economy comprising the following economic activity:

·       The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings

The Respondent has failed to comply with the sectoral order for the duration of his employment.

Unfair Dismissal CA-00042759-001

The Claimant went on annual leave to Romania from the 28th of August 2020 until the 11th of September 2020.

At that time a 14-day quarantine/self-isolation period was required when you travelled abroad and returned home.

The company had informed all staff of this requirement in correspondence dated 24th of March 2020. In that communication employees were informed that if they had any queries regarding the Covid measures they should contact the Managing Director.

On or about Friday 25th of September 2020 the Complainant was asked by his supervisor if he wished to work on site on Saturday the 26th of September 2020.

The Complainant failed to contact the MD about this request by his supervisor.

In failing to contact the MD and attending to work on the 26th of September 2020 he put others at risk of contracting Covid and damaging the business relationship with an important client.

In October 2020 the Complainant queried his wages and it then came to light that he in fact worked on the Saturday when he should have been quarantining.

In turn this gave rise to an investigation and a disciplinary hearing followed. Arising from that hearing the Complainant was dismissed for gross misconduct.

CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015

The Complainant has failed to particularise their claim with reference to the timeframe of an alleged breach of the sectoral order. In those circumstances the cognisable period is limited to 6 months prior to the complaint being lodged.

The Complainant did commence employment as a painter and later tape and joint work. His work was done under supervision. The agreed rate of pay was mutually agreed. The Respondent  has met the contractual commitment agreed between the parties.

The Complainant does not satisfy the criteria of a Craftsperson  having had no certified training in a recognised trade.

Even if it was the case that the rate of pay under the SEO should have applied to the Complainant, it was a rate it could not afford.

The Respondent wholly denies that the Complainant should be afforded the terms and conditions as set out in the Sectoral Employment Order for the Construction Industry S.I. 234.

Unfair Dismissal CA-00042759-001:

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

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

The employer has stated that the process followed by them was fair.

In their submission the Respondent has referred to several cases where the courts held that a procedural flaw alone cannot make a dismissal unfair. [ Circuit Court in Elstone v CIE 13th March Unreported].

“That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of section 6(1), that regard must be had to all the circumstances, and not to one circumstance to the exclusion of all others”

The Respondent also referred to Healy v An Bord Telecoms, High Court (Barron J) 13th of February 1987 who stated that:

“Regard must be had to all the circumstances” and that “the primary consideration is to determine the ground for the dismissal”.

In Short v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy J stated that a central consideration of a fair process is whether or not the alleged breach of fair procedures was ‘likely to imperil a fair hearing or a fair result’.

The Respondent asked the tribunal to note the Court of Appeal decision in RAS Medical Limited T/A Park West v The Royal College of Surgeons in Ireland [2017] IECA 228 where it was held that:

“Fair procedures do not dictate the outcome of a process…There are of course no absolutes in law or in life and there are occasions when the rule of fair procedures have to give way because of pressing exigencies to less considered or reflective processes”.

In Dunnes Stores v Kipli (UDD203) the Labour Court cited with approval Short v Royal Liver Assurances Ltd and stated:

It is clear that in the above passage, Laffoy J was restating the well-established principle that there is a wide degree of flexibility afforded to employers in relation to the manner in which the principles of natural justice are applied in the conduct of disciplinary procedures. The circumstances of each particular case will determine the particular application of those principles in practice

The Respondent stated that the dismissal was both procedurally and substantively fair.

The Complainant at the disciplinary hearing admitted that what he did was wrong. His actions had potentially imperilled the health of others and put at jeopardy a key contract that other livelihoods that depended on.

The Complainant relies on Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137 where the High Court determined that:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

1.       [the Respondent] …should state the complaint, factually clearly and fairly without any inuendo or hidden inferences or conclusion,

2.       The Employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment,

3.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

4.       The actual decision, as to whether a dismissal should follow should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal

Put very simply, principles of natural justice must be unequivocally applied.

The fact find initiated by the Respondent on the 18th of November 2020 was an ambush. The Complainant was never told in advance what allegations were being made against him.

The manager tasked with the fact find investigation never interviewed the supervisor who asked the Complainant to work on the Saturday shift. While the supervisor was interviewed after the disciplinary hearing, the Complainant had no opportunity to question him and to ask him why he was asked to return a day earlier than planned.

The investigation consisted of a short phone call with the Complainant.

The disciplinary meeting was held on the 24th of November 2020 and the Complainant was given only 3 days’ notice. He is a non-national with a need for translation assistance. The disciplinary hearing was chaired by the manager who also had made a complaint against the Complainant alleging that the Complainant had failed to attend a meeting with him on the 21st of October in addition to the other complaints concerning a breach of Covid regulations and Health and Safety breaches.

The Complainant had no representative at the meeting having regard to his limited English.

The Complainant relies on Bank of Ireland v Reilly [2015] IEHC where the court determined that:

“dismissal of the defendant was unreasonable and disproportionate and could not be regarded as falling within the range of reasonable responses of a reasonable employer to conduct in issue”

The Complainant also  relied on the Labour Court decision of Coughlan v DHL (UD1738) where the court found the dismissal to be unfair and one of the reasons given was that the company had failed to consider any alternative sanctions other than dismissal.

While the company rely heavily on the circumstance of the Covid Pandemic to justify their decision to dismiss; the provenance of this inquiry started with a review of the Complainant’s pay over several months. The Complainant had made several representations about his pay.

The company have stated that if any procedural flaws have occurred, they are not so grave as to undermine the process and the reasonableness of the finding.

In stark contrast to the supervisor who was informally warned about asking the Complainant to work on a shift when he was still in quarantine, the employee was sacked. The supervisor did not attend at the disciplinary hearing. The supervisor was not interviewed as part of the fact find. The employer has engaged in a tick box exercise to create the appearance of fairness; however, the process was not fair. The Complainant in this case was persuaded by an officer of the company to work the shift while he was still quarantining after returning from holiday. Several weeks later co-incidentally that misdemeanour took on the mantle of a grave and serious offence that justified his dismissal. That decision was made against the backdrop of requesting to be paid the going rate for a painter. No alternatives were considered other than dismissal. I find that decision was grossly disproportionate to the alleged misdemeanour that arose solely from the actions of his supervisor and was grossly unfair. The supervisor in contrast is given a telling off.

The dismissal is unfair based on a one-sided fact find, a failure to apply the same process to the supervisor, a disciplinary hearing where the decision maker is also making allegations against the Complainant, no consideration of alternative sanctions in a meaningful way, a disproportionate and unreasonable sanction having regard to all the circumstances of this case.

The Complainant was unfairly dismissed.

The Complainant is seeking compensation. He was dismissed on the 9th of December 2020.

The construction industry closed from the 8th of January to the 12th April 2021.

The following has been provided as a statement of the benefit by the Complainant.

Summary of Payments Received by: Mr Bazil Hada PPSN:  Period From: 04/01/2021 To: 07/08/2021 Scheme: Total paid during period: Jobseekers Benefit 2395.40 Euro Illness Benefit 3857.00 Euro Total Amount Paid: 6252.40 Eu

The Complainant post the hearing was asked to detail his availability to work post dismissal.

Mr Hada was dismissed in early December 2020 and was out of work on job seekers till March 2021 when he was then in receipt of illness benefit.

The Complainant has now returned to work. However, as he was sick and not available for work for a significant time the amount that can be awarded for Financial Loss is limited. In a full year the Complainant was paid €32K= €615.38 per week x 4= €2461.50. I award €2465.50 in compensation.

CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015

Based on the evidence provided at the hearing including copies of certificates I am satisfied that the Respondent knew that the Complainant was a skilled craftsperson and knowingly decided not to apply the correct rate to him.

It is also the case that when the Complainant sought to assert his right to the correct pay for his trade an opportunity was used by his employer alleging noncompliance with Covid regulations to terminate his employment.

The concern that the employer had to comply with public health regulations is in stark contrast with their legal obligations to pay the Complainant the lawful rate for his trade.

I have noted the cognisable period as set out by the Respondent.

I also note the redress provided for under the Act as section 23:

Decision of adjudication officer under section 41 of Act of 2015

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20,

(b) a registered employment agreement (within the meaning of Chapter 2), or

(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

The fact is the hourly rate of pay of €14.50 per hour is in breach of S.I. No. 234/2019 - Sectoral Employment Order (Construction Sector) 2019 that provides for:

The following basic hourly rates of pay will apply in the sector from 1st October 2019 to 30th September 2020.

Craftsperson

€19.44 per hour

And

The following basic hourly rates of pay will apply in the sector from 1st October 2020.

Craftsperson

€19.96 per hour

The complaint is well founded as the employer breached the order by paying a craftsperson €14.50 per hour when the order for the relevant period prescribed an hourly rate of pay for his craft of €19.44 per hour and €19.96 per hour.

The average earnings of this employee is €32,000. Having regard to the circumstances of this case and the very significant noncompliance with the order and the exploitation of this worker; a non-national highly dependent on his employer and management to apply the law , and their failure to do so despite several requests by him, in these circumstances it is just and equitable to award 6 months’ salary in compensation.

The complaint is well founded, and I require the employer to pay to the worker €18,000 in compensation that I consider just and equitable having regard to all the circumstances of this case.

Unfair Dismissal CA-00042759-001

The Complainant was unfairly dismissed.

The Complainant has now returned to work. However, as he was sick and not available for work for a significant time the amount that can be awarded for Financial Loss is limited. In a full year the Complainant was paid €32K= €615.38 per week x 4= €2461.50. I award €2465.50 in compensation.

CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015

Based on the evidence provided at the hearing including copies of certificates I am satisfied that the Respondent knew that the Complainant was a skilled craftsperson and knowingly decided not to apply the correct rate to him.

The concern that the employer had to comply with public health regulations is in stark contrast with their legal obligations to pay the Complainant the lawful rate for his trade.

The complaint is well founded as the employer breached the order by paying a craftsperson €14.50 per hour when the order for the relevant period prescribed an hourly rate of pay for his craft of €19.44 per hour and €19.96 per hour respectively.

The average earnings of this employee are €32,000. Having regard to the circumstances of this case and the very significant noncompliance with the order and the exploitation of this worker a non-national highly dependent on his employer and management to apply the law  , and their failure to do so despite several requests by him, it is just and equitable in these circumstances to award 6 months’ salary in compensation.

The complaint is well founded, and I require the employer to pay to the worker €18,000 in compensation that I consider just and equitable having regard to all the circumstances of this case.

Sectoral Order-Unfair Dismissal