Complainant

Respondent

Parties

Mark  Yorath

Anvil Manufacturing Engineering Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Gavan Mackay Solicitor

Mackay 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-00051307-001

25/06/2022

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have in the circumstances administered the said Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was fully represented. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with and have considered a comprehensive submission dated the 10th day of February 2023. The Complainant additionally relied on the short submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case and which was attached to the submission. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed. The Complainant asserts that after a year and a half of service he was dismissed without warning and that no reason was given for the dismissal, and no appeal from the dismissal was provided at the time. There were no disciplinary issues brought to his attention prior to the dismissal.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the two company Directors. The Respondent witnesses provided me with documents in support of their position. This included two statements prepared by each of the Directors in turn.

All evidence was heard following an Affirmation. The Respondent witnesses were cross examined by the Complainant representative.

The Respondent accepted that it had terminated the Employment relationship between the parties and was therefore advised that the burden of proof rested with the Respondent who had to then  to demonstrate that it had acted fairly and reasonably in all the circumstances. In particular, the Respondent needed to show that there were substantial reasons justifying the dismissal or that the dismissal resulted wholly or mainly from one of the grounds specified and outlined in the Acts.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of the hearing.

The Complainant came to work for this Employer in January of 2021. The Complainant recalled being interviewed by MC who asked him to showcase his welding experience as part of the interview. The Complainant was taken on on the basis of a 39-hour week at a rate of pay of €18.50 per hour. The Complainant gave evidence that he had a good rapport with MC who, as the senior welder, he would often accompany for installations and on-site work.

Eighteen months later, in the June 2022 the Complainant and MC had returned from a job at a city centre library. They had chatted in the van on the way back. When they were back at the workshop premises the Complainant was approached by MC who stated that whilst they had gotten on well, he was going to be letting the Complainant go. The Complainant said it was out of the blue and that he was not expecting it at all. There had been no build up to it, no tensions between him and the Directors, there had been no lack of work and (as he understood it) no difficulty with how he had performed his job. The Complainant was so taken aback that he simply accepted that his employment was to be terminated and came back in the next day to work out the notice period of one week which had been referenced by MC the previous day.

On the day after the conversation with MC, the Complainant approached the second Director - AC -and asked him why he was being let go. The Complainant was told that he wasn’t meeting targets though there is no suggestion that there had previously ever been a suggestion that targets needed to be met. The Complainant says that he wanted AC to given him a reason and felt that he was entitled to one. AC said something along the lines that the Complainant was not entitled to a reason. I accept that the Complainant did not get a satisfactory response from AC who got angry and walked off. The Complainant left his employment later that day.

The Complainant explained that he had certainly received a copy of a Contract of Employment after he had commenced his employment with the Respondent company. This had been signed by him and returned to the Employer. He had not retained a copy of same and it is assumed by him that the Contract was kept in the office. It was pointed out therefore, by the Complainant’s representative, that the complainant had no idea what protections, if any, were referenced in the Contract of Employment.

The Complainant was never provided with a letter confirming the fact of dismissal nor was he ever told of the reason for the dismissal. The Complainant was not provided with an opportunity to Appeal the Dismissal. The Complainant simply did not understand what had happened to cause him to be summarily dismissed in the manner disclosed in the course of evidence.

Whilst the Complainant did get employment fairly quickly after this event, he was very upset at how he had been treated by the two Directors for whom he had worked diligently for an eighteen-month period. It was in these circumstances that the Complainant issued the Workplace Relations Complaint Form a few weeks later in the June of 2022.

The Respondent entity (represented by its directors) has put up a robust defence.

AC gave evidence that the Complainant’s standard of work was not meeting expectations. AC outlined a series of jobs undertaken by the Complainant which had fallen below acceptable standards. AC said that the Complainant’s work was negatively impacting the Respondent’s reputation. This witness appeared to be very angry that the Complainant had had the temerity to bring the Respondent before the WRC in the first instance. He repeatedly called the Complainant’s work disgraceful and disgusting. AC said he and his brother (MC) had had to double check any of the work which the Complainant was sending out of the workshop and that there was a constant need to redo work to bring it up to an acceptable level. AC said that they had hoped that over time the Complainant would improve and that particularly with MC’s guidance he could become a better welder. AC gave the impression that the Complainant was wilfully refusing to become a better welder, and was refusing to act safely, carefully and professionally. AC said that the Complainant was repeatedly being talked to (by both Directors) about the standard of his work and that the complainant could not have been surprised when the Employer finally decided that they could no longer retain his services. AC confirmed that he discussed the Complainant’s future with MC who was left with the task of terminating the employment.

When challenged in the course of the cross-examination, AC confirmed that he had not given the Complainant any formal warning such as might be described in a Contract of Employment or in an Employee Handbook or in a standard written Disciplinary process. AC specifically accepted in evidence that he never told the Complainant that his job was at risk. In fact, both AC and MC gave unusual evidence to the effect that they were not in the habit of recording or otherwise noting conversations (of a disciplinary nature) as they had no interest in having piles of paperwork. There was no evidence that either Director had any experience of the HR function, nor did they opt to avail of outsourced HR guidance.

The Complainant representative challenged the Respondent witnesses on when exactly, giving times and dates, they upbraided or corrected the Complainant about the particular pieces of work which they had alleged (in the course of the WRC hearing) were below par. It was put to the Respondent witnesses that the systematic unpicking of the Complainant’s craftmanship had only happened after the event, and when the Workplace Relations Complaint Form had issued. I accept that there was no record keeping in this regard. The Respondent insisted that the Complainant knew or ought to have known that they were not happy with his craftmanship and work.

The Complainant himself gave evidence that he was happy to learn on the job and was only ever constructively criticised and encouraged (mainly by MC). He gave evidence that if work needed to be refined, he was happy to do that and never thought that any failing on his part was imperilling his employment. He gave evidence that he was given no formal warning and had no idea that the Directors were conferring on his future employment in the days before he was summarily dismissed. The Complainant has quite rightly pointed out that the fact that he was given a remunerative raise (from €18.50 to €20.00 per hour) in the course of his employment is counterintuitive to the assertion that his work was sub-standard.

I have noted that MC confirmed that when he approached the Complainant to terminate the employment that the fact of how the Complainant had taken his annual leave was not a huge consideration. I am therefore not attaching any particular weight to the fact that the Complainant had tended to take days off at short notice which the Complainant stated arose when he was ill or had an unavoidable appointment to attend. The Complainant did not exceed his allocation of 20 days annual leave in the course of his employment, and I am clear that in the course of the employment neither Director took the Complainant aside to complain about the manner in which he chose to use up his precious days of leave. This was ultimately non-issue though a considerable amount of time was spent on it in the course of the hearing.

I am also satisfied that the Complainant was appropriately trained and certified in the metalwork and welding function when he came to be employed with the Respondent. If he needed further training the Respondent witnesses accepted that they intended to provide that to him in accordance with their specific needs.

It seems to me that the Respondent sought to rely on the negative aspects of the Complainant’s performance, competence and capability as reasons for the dismissal. What the Respondent witnesses completely failed to understand was their obligation to notify the Complainant of the precariousness of his position. This turned out to be a backroom decision taken by two Directors without reference to the Complainant.

On balance I am finding that this was an Unfair Dismissal that was executed without warning and contrary to fairness and reasonableness. The Complainant was entitled to know that his role was in jeopardy by reason of a perceived underperformance. Any dissatisfaction should have been made known to the Complainant together with a programme and timeline for improvement. This did not happen, and the Complainant was literally set up to fail. The Complainant is entitled to be compensated for his actual loss of three weeks. It is noted that as Adjudicator I also have jurisdiction to direct payment of compensation (not to exceed four weeks gross remuneration) even where no loss has been established as might be just and equitable in all the circumstances (per Section 7 (1)(c)(ii) of the 1977 Act).

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051307-001 – the Complainant was unfairly dismissed and is entitled to redress, and I award the sum of €5,700.00.