ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048120
Parties:
| Complainant | Respondent |
Parties | Tomas Ruksnys | Killark Ltd |
| Complainant | Respondent |
Representatives | Self-Represented | Company Managers |
Complaint:
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-00058456-001 | 23/08/2023 |
Date of Adjudication Hearing: 31/01/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
No issue regarding confidentiality arose.
Background:
The issue in contention was the alleged Unfair Dismissal of an Operative by a Construction Company. The employment began on the 27th September 2021 and physically ended on the 17th February 2023. The rate of pay was stated to be variable but in the region of €1,000 Gross for a 40-hour week. |
Time Limits
The Employment physically ended on the 17th February 2023 with additional Annual Leave allowed to give an end Date, (as per Respondent correspondence of the 15th March 2023), of the 1st March 2023.
The question of the 6-month rule under Section 41 of the Workplace Relations Act,2015 was raised. The Complaint was received in the WRC on the 23rd August 2023.
However, on balance, the issue was marginal between the different stated end dates and the Adjudication was allowed to proceed.
1: Summary of Complainant’s Case:
The Complainant was on long term sick leave following a workplace injury. He was informed by letter of the 10th February 2023 that he was being dismissed due to a downturn in work. No procedures were followed. It was a blatant case of Unfair Dismissal. |
2: Summary of Respondent’s Case:
The Respondent stated that they were a small specialist sub-contracting Carpentry Company. They had been engaged on a Phase of the Construction of the new Intel Plant at Leixlip, Co Kildare. The main Contractor dictated their work schedules and required labour input. In January 2023 the Phase they had been engaged to complete was finished and the main Contractor drastically reduced the Labour requirement from the Respondent sub-contractor. There was simply no work available, and the Complainant plus 5 of his colleagues was let go. In reply to Adjudicator questions, the Respondent stated that they were specialist sub-contractors. They had not secured a new contract outside of Intel sufficient to maintain their full workforce which at the date of the Hearing was down to two employees. There was no suggestion of Unfair Dismissal. It was stated that the Complainant had a long period of sick leave following an alleged workplace accident. He had been engaged with the Respondent Company in this regard. Considerable correspondence was presented in evidence. However, this had nothing to do with the ending of the employment. On sworn Affirmation, the Respondent Manager, Mr PM, stated that once the Main Contractor on a big site such as Intel, finished a particular phase of the job they would effectively finish with the Subs (such as the Respondent) on that Phase and move on to other Specialists required for the next Phase. The work had ceased, and the Complainant had to be let go. |
3: Findings and Conclusions:
3:1 The Legal position. Section 6 (4) of the Unfair Dismissal act,1977 provides as follows (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
In the Oral testimony from both Parties, it was agreed that the Intel site job for the Respondent had wound up.
Additionally, and again From the Oral Testimony it was clear that there had been a lot of communication between the Parties. The Complainant was well aware of the Intel situation and staff/colleagues being let go. It was clear that the Respondent had no other work available.
Accordingly, Section 6(4)(c) has to apply - Redundancy
The conclusion therefore has to be that No Unfair Dismissal took place.
(If the Complainant had more employment service (greater than two years), a claim for Statutory Redundancy might have been possible. Unfortunately, this was not the case as the Service was only 1 year and five months.)
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4: Decision:
CA: 00058456-001
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.
Having regard to Section 6(4)(c) of the Unfair Dismissals Act,1977 a finding of Unfair Dismissal cannot be made.
The Complaint fails.
Dated: 08/04/2024
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Redundancy, Short Service. |