Complainant

Respondent

Parties

Mark John  Power

BPH Construction Limited t/a  Blueprint Homes

Representatives

  Self-Represented

Fiona Twomey, Fiona Twomey Solicitors.

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-00061677-001

15/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00061677-002

15/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061677-003

15/02/2024

The Complainant commenced employment as a ‘Load-All’ driver with the Respondent construction company in August 2021. His weekly gross pay was €828.22 per week until the date of dismissal on 8 September 2023. The Complainant claimed he was unfairly dismissed contrary to the Unfair Dismissals Act 1977 (“the 1977 Act”), He submitted that he did not receive his minimum notice contrary to the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”  and, furthermore, that he was penalised for reporting a relevant offence contrary to the Criminal Justice Act 2011.

The Respondent denies all claims.

Mr Stephen Quinn, Director of the Respondent company gave evidence under oath. He described a number of problems that he encountered with the  Complainant. The Complainant was on bad terms  with tradespersons and assistants on site which caused ill-feeling and resulted in  operational difficulties for the construction project. . Furthermore, he said that the Complainant was the main driver of the “Load-All” machine,  but that damage was done to rams on the vehicle where the bill came to €6k. He also detailed an incident of a ‘near miss’  when the Complainant narrowly avoided reversing into a work colleague. He felt that the Complainant had caused too many problems on site and accepts that he dismissed the Complainant without investigation or procedures on 8 September 2023. He paid the Complainant all outstanding monies due to him, including  two weeks wages in lieu of notice, which the Complainant accepted.

Mr Pat O’Shea, site supervisor, gave evidence of damage to the load-all and evidence of the ‘near-miss’ incident and reported that a bag of cannabis was found in the vehicle when it was being repaired by an outside firm. He also reported that he received a smell of cannabis in the drivers cab of the Complainant’s machine on one  occasion when he needed to talk to him. The witness accepted in cross-examination that  the Complainant was not the only driver of the vehicle and, furthermore, that the Complainant was never accused, nor was he ever investigated, for cannabis use on-site. 

CA-00061677-001 UNFAIR DISMISSAL

The Complainant in evidence told of an incident where he was verbally abused by a colleague, using profane language, which he reported before he was dismissed, and believes this contributed to his dismissal. He also reported another colleague for heavy drinking, whom he had previously recommended personally for the job. He  believed this was also a factor in his dismissal. He described being called over by Mr Quinn on the day of his dismissal and being told that “there is too much drama on site”. He was informed he was dismissed and not to show up for work on the following week. The Complainant denied ever smoking cannabis on-site.

On mitigation of loss the Complainant stated that he commenced work as ‘Load-All’ driver on practically the same rate of pay with an  agency on 23 October 2023 (post hearing letter to this effect). He gave evidence that  has been working continually in the same role since, on different construction sites.

CA-00061677-002: PENALISATION UNDER THE CRIMINAL JUSTICE ACT 2011:

The Complainant originally claimed on the WRC complaint form  that he was penalised under section 20 of the 2011 Act but give no evidence of a relevant offence  that he had reported under the Act.

CA-00061677-003: MINIMUM NOTICE

The Complainant stated he did not get minimum notice but accepts he was paid two weeks’ pay in lieu of notice.

CA-00061677-001 UNFAIR DISMISSAL

Section 6(7) of the 1977 Act provides:

"Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if 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."

This principle of reasonableness requires employers to not only establish substantial grounds justifying dismissal but also to follow fair procedures before termination. A relevant case, Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, outlined premises necessary to support a decision for termination due to misconduct, emphasising the importance of bona fide complaints, clear communication, fair employee interviews, evidence-based decisions, and proportionality in dismissal. Flood J. highlighted that principles of natural justice must be unequivocally applied in cases of unfair dismissal.

In  this case, the evidence shows  there was a total disregard for any type of fair procedure. The Respondent may well have  been justifiably angry at the Complainant’s performance and behaviour on site, but he was never reprimanded nor investigated for any disciplinary reason  before his dismissal.  I can come to no other conclusion but that this was an unfair dismissal due to the unreasonableness of the manner in which the dismissal was carried out.

REDRESS

Section 7 of the 1977 Act, in its relevant parts, provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

I am satisfied that the Complainant satisfactorily mitigated his loss and commenced employment six weeks  later on the same rate of pay and gave evidence that he had been in continuous employment up to date of the hearing. Having regard to all the circumstances of this case, I direct the Respondent to pay the Complainant the compensatory sum of the €5000, the approximation of a loss  of six weeks’ pay.

CA-00061677-002: PENALISATION UNDER THE CRIMINAL JUSTICE ACT 2011:

The Complainant gave no evidence of reporting an offence in accordance with Schedule 1 of the 2011 Act, nor of any associated penalisation. I conclude that this complaint was misconceived and therefore not well founded.

CA-00061677-003: MINIMUM NOTICE

Convincing uncontested evidence was given by Mr. Quinn on behalf of the Respondent that he paid the Complainant two weeks’ notice, in lieu of actual notice, which the Complainant accepted.  As the Complainant was in employment for just over two years, I am satisfied that no breach of the Act occurred and therefore I find that the complaint was not well founded.

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.

CA-00061677-001 UNFAIR DISMISSAL

For the reasons outlined above, I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €5000.

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.

CA-00061677-002: PENALISATION UNDER THE CRIMINAL JUSTICE ACT 2011:

For the reasons outlined above, I find that the complaint was not well founded.

CA-00061677-003: MINIMUM NOTICE

For the reasons outlined above, I find that the complaint was not well founded.

Unfair Dismissals Act 1977, Minimum Notice and Terms of Employment act 1973, Penalisation under the Criminal Justice Act 2011.