Worker

Employer

Anonymised Parties

A General Operative

A Construction and Insulation Company

Representatives

Con McMahon BL instructed by Eamonn Hayes Solicitors

Richard Joyce (John Shee & Company Solicitors)

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00059315-001

10/10/2023

The worker states that he was employed as a general operative on or about 19 January 2023 on a permanent full time basis. He states that he was on a 39 hour week. He states that his work involved building and dismantling scaffolding. The worker states that he was not given a contract. The worker states that on or about 27 January 2023, during the course of carrying out his duties under employment with the respondent company, he was caused to suffer personal injuries. He states that he had a fall from the scaffolding and ended up in hospital. The worker states that this happened on a Friday evening and he was discharged from hospital that night and returned to work the following Monday. The worker states that he has since taken a claim against the respondent with regard to this injury suffered in the course of his employment.

The worker states that he was peremptorily dismissed by the respondent on 14 April 2023. He states that the reason that was given for his dismissal was that there was no more work for him at the company. However, the worker states that in fact he was dismissed on the basis that he had taken a claim against the respondent for the injuries he had suffered during his employment.

The worker states that at no stage during the course of his employment with the respondent was he furnished with a disciplinary and grievance procedure or procedure regarding his dismissal.

The worker states that the respondent’s de facto dismissal of him was not reasonable in the circumstances. The worker asserts that the respondent breached his right to fair procedures and natural justice as there was no dismissal procedure or process and he was summarily dismissed without an appeal procedure.

The worker states that he has been unfairly dismissed without notice, in breach of disciplinary procedures and in breach of generally accepted standards of fairness and objectivity.

The worker is seeking an award of compensation by reason of the respondent having dismissed him unfairly, without notice and in the absence of any fair procedures.   

The employer states that the worker was recruited as a scaffolder and commenced employment with the company on 19 January 2023. The employer states that the worker signed a contract which provided for a 6 month probation period. The employer stated that they searched for a copy of the contract but could not locate it. The respondent stated that it had a requirement for an additional scaffolder as it was due to commence a retrofit project on social housing for a named County Council in or about February 2023. 

The employer states that on 23 February, the County Council in question cancelled the project citing funding issues. The employer states that the company found itself in a difficult position and no longer required staff to deploy to the retrofit project on social housing due to the cancelled project.

The employer states that a number of staff including the worker were offered alternative work within the company. The employer states that the worker was offered a role as an insulation operative however he declined this offer.

The employer states that as there was no alternative work for the worker as a scaffolder and he had declined an alternative role, a redundancy situation arose and the worker was informed that the respondent could no longer provide employment. The employer states that the worker completed his employment with the respondent after circa 3 months on 14 April 2023.  The employer states that the worker had insufficient employment with the company to be entitled to statutory redundancy pay.

The employer states that the worker was not dismissed; he failed to avail of alternative work within the company and accordingly a redundancy situation occurred.     

The employer states that it is noteworthy that the personal injury claim was only brought after the worker’s termination of employment.

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

While the employer has stated that a named County Council cancelled a social housing project in late February 2023 and in this regard he no longer required a scaffolder; upon review of said letter I note that it states “ as indicated to you last year that funding has not been forthcoming from the Department”, …”I am writing to you now formally to confirm what I said to you previously, the Client has cancelled the project. Your tender had actually expired in any event.” It is evident that from late 2023 indications were that no funds were forthcoming and I note that the worker was hired on 19 January 2024. In those circumstances I do not find the respondent’s argument on this matter to be plausible.

Having carefully examined the totality of the evidence on the within dispute, I find that the worker was not treated fairly by the employer. I conclude that the worker’s dismissal in mid April 2023 was unfair and was lacking in any fair procedure. In particular, I note that the worker was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

In those circumstances, I find in favour of the worker. I recommend that the employer pays the worker compensation in the amount of €2,500.

Industrial Relations Acts