ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033808

Parties:

Complaint:

Date of Adjudication Hearing:  25/08/2022 and 21/03/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  following the referral of the complaint  to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed after the Respondent accused him of buying concrete from a rival firm for work on his own dwelling.

Summary of Respondent’s Case:

The Respondent contends that the Complainant was not an employee.  He was not employed on a contract of service, was not required to be in attendance on a regular basis and therefore there was no mutuality of obligation.  He was drawing social welfare and when it suited him, he worked for the Respondent but there was nom obligation.  Earnings from his work with the Respondent varied greatly over they years 2012 to 2015.  In 2018, he was given a contract as a part time casual worker, basically a zero hours contract. 

Summary of Complainant’s Case:

The Complainant gave sworn evidence.  He stated that he was working from 2007 for a few days a week with a contractor Mr L who worked for the Respondent.  When Mr L retired, the Complainant worked for the Respondent.  The Respondent provided the equipment and truck.  He clocked in and out and was given an employee handbook.  The Respondent gave him payslips, where tax and PRSI was deducted.  He had a number of courses completed, SafePass and Forklift driving but the Respondent held the “tickets” for these. In 2017 he bought a cottage and he needed a mortgage.  So, the Respondent gave him a contract and as far as he was concerned he was properly on the books.  He did accept that he drew social welfare on days he did not work.  On 22nd December 2020 the Respondent told him “We won’t want you after Christmas”.  When he asked why, the Respondent said to him “you must have no interest in working for Gleesons when you bought concrete off McGraths”.  He was told to “go on the Covid like everyone else”.   The Complainant said he found it hard to get work after he was dismissed from the employment.  He drew the Covid payment for some months and then got a job for some 8 or 9 months.  The he was on social welfare and was due to start a full time job the week after the hearing.

Findings and Conclusions:

The Respondent makes one central argument that is that the Complainant was not an employee of the Respondent or was on a contract for service or was on a part time casual zero hours contract. 

The definition of employee as contained in Section 1 of the Unfair Dismissals Act 1977 as follows:

“employee” means an individual who has entered into or works under (or where the employment has ceased , worked under ) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.”

The law is extensive regarding the issue of whether an individual is deemed to have worked under a contract of service or a contract for services.  While the Courts have found that each case must be considered on its own facts, the basic principles of consideration or ‘tests’ can be looked at under the headings: Control, Integration, Enterprise (or Economic) and Mutuality of Obligation.

I find from the evidence, that the Complainant’s work was supervised and controlled by the Respondent.  The Complainant did not provide his own tools or equipment. They were provided by the Respondent. The Respondent appears to have sponsored him for training for the job, and I note the reference in the Complainant’s evidence that the certificates (“tickets”) have been held by the Respondent.  The Respondent ought to return them to him if that is the case.  The Complainant was integrated into the enterprise and there was a certain mutuality of obligation.  The Complainant could not delegate his work.  Given all these considerations, I find that the Complainant meets the definition of employee and he has locus standi in the case.

On the substantive case, I accept the evidence that the Complainant was dismissed for allegedly buying concrete from a rival firm.  In the situation he was not given the benefit of fair procedures or due process.  He was not given the opportunity to state his case or appeal.  On that basis I find he was unfairly dismissed.  I find the remedy of compensation is the appropriate remedy, re-instatement or re-engagement are not appropriate in circumstances where the employment relationship has irretrievably broken down.  I note his earnings fluctuated throughout the years. Payslips showing earnings in the last 2 years of his employment were provided by the Complainant.  On the basis of the information provided I award the Complainant compensation in the amount of €7,000.

Decision:

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.

 I have decided that the Complainant was unfairly dismissed, and I award him compensation in the amount of €7,000.

Dated:   19th May 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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