Complainant

Respondent

Parties

Sylwester  Hajdul

Hearthill Interiors Limited

Complainant

Respondent

Anonymised Parties

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Representatives

 Self-Represented

 Self-Represented

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-00056407-001

28/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00056407-003

28/04/2023

The Complainant was employed as a partition and ceiling fitter with the Respondent contractor company from 8 May 2018 until the termination of contract on  25 November 2022. He was paid €566.42 gross; €476.26 net for a 39-hour week. The Complainant submits that he was unfairly and summarily dismissed by the Respondent, without due process,  and also that he did not receive a statement of his terms and condition of employment from the Respondent.

The Respondent argues that the Complainant left a site of his own accord on the relevant day and also that the Complainant had stated that he did not want to work any longer at the sole site where the Respondent was engaged. 

CA-00056407–001 Unfair Dismissal Claim:

 Mr Vincent Linnane, owner of the Respondent company, gave evidence that there were problems with the Complainant and a co-worker on a pharmaceutical site where the Respondent was engaged. The Complainant, and the co-worker, who worked together, were not cleaning up after them as they went along. This was brought to the   attention of the witness  by the contracting supervisor on the  site of a pharmaceutical company, where the work demanded high standard of cleanliness. The witness also displayed photographs of the work, which he maintained, did not signify a cramped working environment as claimed by the Complainant on the day in question. The Complainant and his colleague did not stay on site to finish his work but instead remained in the canteen for a number of hours. It was the witness’s understanding that the Complainant no longer wished to work on the particular site.  

The Respondent displayed a text transcript of an interaction, in its relevant passage which stated:

Complainant: “Hello, can you tell me where I work on Monday”   

Respondent: “No work – you and (redacted) left site today on your own accord”.

The witness accepted that he received a phone call later that day from the Complainant which ended up with the witness telling him that he (the Complainant) could  go away and receive legal advice. 

Mr Vjatseslav Streganov, supervisor with the Respondent, gave evidence that he met the Complainant on site on 25 November 2022 and the Complainant told him that he did not want any more work on that particular site. In cross-examination it was put to the witness that the Complainant never stated he did not want to come back to that site. The  witness stated that was not correct. 

CA-00056407-003 Terms of Employment

The Respondent accepted that the Complainant did not receive a statement of his terms of employment as provided for under the Terms of Employment (Information) Act 1994.     

CA-00056407–001 Unfair Dismissal Claim:

The Complainant gave evidence that on 25 November 2022 he was doing a difficult job slowly where the constricted space  required him to lay on his back while working. He said that the engineer on the site started putting pressure on him to work faster. When he explained to the engineer why he couldn’t work more rapidly, he claims this was not taken on board. He said the engineer was shouting at him. He went to the canteen and waited for further instruction. Later that day he  sent a text to Mr Linnane   asking where he would be working the following Monday but was informed by text that he had no further work for him. He then  called Mr Linnane  and explained to him what had happened, but he was told that  it was okay for the engineer to put pressure on him as he was in charge. The Complainant claims that Mr Linnane hung up abruptly on him after he (Mr Linnane) told him to go and see his legal advisor.

CA-00056407-003 Terms of Employment

The Complainant stated he did not receive a contract nor terms of employment from the Respondent.

CA-00056407–001 Unfair Dismissal Claim:

Applicable Law:

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -  

Subject to the provisions of this section, 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 were substantial grounds justifying the dismissal.

Section 6(7) provides that: -

 Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

The Court of Appeal case of O’Donovan v OverC Technology 2021 IECA 37 reviewed the obligations upon employers in dismissing employees on misconduct grounds. The Court stated  that fair procedures must apply to procedures relating to dismissals on such grounds, whether during the probationary period or otherwise. At paragraph 69, Costello J. sets out: “In my view, Orr and Carroll remain good law. The principle established was specifically endorsed in Maha Lingham where Fennelly J. confirmed that a dismissal by reason of an allegation of misconduct attracts the right to fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right”. In this instance, there was an allegation in a text that the Complainant left a site early of his own accord  which the Respondent sent on the Friday in question. This was clearly an allegation of gross misconduct and  fair procedures ought to have been followed. However, what followed was a summary dismissal by text when the Respondent declared that he had no further work for the Complainant. It is well established by numerous authorities and confirmed by the Court of Appeal in O’Donovan that there is a right to fair procedures when an allegation of misconduct is alleged. There were no procedures of any kind adopted by the Respondent in this case therefore I find that the Complainant was unfairly dismissed.

The Complainant mitigated his loss by finding employment six weeks later at the same rate of pay therefore I direct the Respondent to pay the Complainant €3,400 which is approximately six  weeks’ pay.

CA-00056407-003 Terms of Employment

The Terms of Employment (Information) Act 1994 requires that an employer must provide his/her employee with a written statement of the particulars of the employee’s terms and conditions of employment.

Furthermore, redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of sections 3, 4, 5, 6or 6C  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,

 (d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Respondent accepted that the Complainant never received  his  written terms of employment as per the 1994 Act.  It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. I find that the complaint was  well founded and that the Respondent pay the Complainant the sum of €566 which is equivalent to  one week’s salary.

CA-00056407–001 Unfair Dismissal Claim:

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.

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €3,400.

CA-00056407-003 Terms of Employment

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.

For the reasons outlined above, I find that the Complainant was well founded, and I direct the Respondent to pay the Complainant compensation of €566, which is the equivalent of one week’s wages.

Unfair Dismissals Acts 1977-2015, Unfair Procedures, Terms of Employment (Information) Act 1994.