Worker

Employer

Anonymised Parties

An Apprentice Carpenter/Joiner

An Employer

Representatives

Setanta Landers Setanta Solicitors

Act

Dispute Reference No.

Date of Receipt

S13 of the Industrial Relations Act 1969 (as amended)

 CA-00050164

3rd May 2022

The Worker worked as a carpenter and joiner apprentice for the Employer from 17th May 2021 until 22nd April 2022.

The Worker worked for the Respondent for 48 weeks.

He accepts that he was late some days and didn’t show up for work. There was a miscommunication on 19th April 2022 about a lift with the owner. The Worker’s mother rang the owner. The owner said he was going to review the Worker’s employment, he needed someone with more experience and didn’t think the Worker would make a carpenter/joiner. He suggested the Worker write a letter of resignation.

On 20th April 2022 the Worker was collected for work by the owner and said “He wasn’t letting me go and that I wasn’t leaving” so it was a mutual agreement. The Worker agreed as he felt he had to leave because of what the owner had said. The Worker said he wanted to be paid in lieu of notice. He was told there was no need for him to come into work 21-22nd April 2022. He received an email with a discharge asking him to sign in full discharge of all claims or debts of any description. He received a reference saying he had a role as apprentice on a 12 month contract. The Worker said he felt intimidated by the correspondence. He had no choice but to look for alternative employment.

He subsequently discovered on 21st April 2022, he was never registered as an apprentice by the Employer. He obtained another apprenticeship but had to start on year one again because he was never registered as an apprentice.

The Worker commenced working as an apprentice on 17th May 2021. He was provided with a contract for the apprenticeship with Solas which he signed on 31st August 2021.

The Employer had concerns regarding the Worker’s compliance with Health & Safety regulations and difficulty with the use of power tools which have the potential to cause serious and significant harm if misused. The Employer felt the Worker lacked maturity. The Worker was instructed in the use of saws. On three occasions he narrowly avoided injury. He needed to be closely monitored. In August 2021 he dropped timber and injured another employee. In February 2022 he was reprimanded over his use of a chop saw and removed from working with a chop saw. In March 2022 he was nearly injured when using a skill saw. He disregarded Health and Safety requirements eye and ear protection despite reminders. On 16th and 21st March 2022, the Worker did not attend work.

On 22nd March 2022, the Worker was told a drastic improvement was required. On 19th April 2022, the Employer was unable to collect the Worker. The Employer had a discussion with the Worker’s mother that evening regarding his suitability for the role. On 20th April 2022, the parties agreed to mutually separate. Documents were sent to the Worker, who then changed his mind. He said he was obtaining legal advice and opened this claim. The Worker could have reengaged with the Employer.

The Worker obtained new employment on 23rd April 2022. He does not have twelve months continuous service to proceed with a claim for unfair dismissal under the Unfair Dismissals Act 1977.

Due to an oversight, the apprenticeship was not registered with Solas. The Employer sent the documents to Solas on 30th August 2021.

The Worker’s claim is for constructive dismissal which he must prove on the facts. The dismissal is disputed as the Worker agreed to resign. The Employer submits the Worker does not satisfy the test for constructive dismissal that the Employer has breached his contract of employment or that it is reasonable for the Worker to resign given the conduct of the Employer.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker claims unfair dismissal pursuant to S13 of the Industrial Relations Act 1969 and that he has been constructively dismissed under Section 1 of the Unfair Dismissals Act 1977. S2(a) of the Unfair Dismissals Act 1977 excludes claims by employees who do not have twelve months continuous service with their employer.

The Unfair Dismissals Act 1977 defines “dismissal” in relation to an employee as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the burden of proof is on the Worker to prove on the balance of probabilities that firstly, the Employer has breached his contract and as a result the Worker is entitled to resign or secondly that it is reasonable for the Worker to resign given the conduct of the Employer.

The Employer made submissions regarding performance and safety concerns about the Worker’s performance, and that he required supervision. The Worker accepts concerns were raised, he was late on occasion and missed some days of work.

The Worker was not provided with a grievance and disciplinary procedure in accordance with Statutory Instrument 146/2000 Industrial Relations Act 1990 (Code of Practice on grievance and disciplinary procedures) (Declaration) Order 2000. There is no evidence a formal performance management process was conducted by the Employer so the Worker would be aware his performance was falling below expectations and the potential impact on his employment.

The Worker thought he was dismissed following the conversation on 20th April 2022 given the Employer’s concerns that he was not capable of the role. The Employer did not comply with fair procedures as there was no formal performance management or disciplinary process conducted with the Worker regarding his concerns. The Worker was not provided with a grievance procedure in order to raise his complaints.

In the circumstances, I find it was reasonable for the Worker to resign given the conduct of the Employer and the Worker was unfairly dismissed. The Worker mitigated his loss immediately. I recommend an award of four weeks remuneration €1,040.00 be paid to the Worker by the Employer.