Complainant

Respondent

Parties

Konstantins Rogolevs

MM Eco Build Construction Limited

Representatives

Dimitry Grinberg BL

Mikail Baiukkishiev, HR Specialist

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059438-001

17/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00059438-002

Withdrawn

17/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00059438-003

17/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice and Terms of Employment Act 1973

CA-00059438-004

17/10/2023

The respondent is a construction business employing 25 people, based in Kildare.  They carry out re-modelling and extensions and well as single house-building projects.  The complainant is a construction worker and, from November 11th 2019 until September 16th 2023, he was employed by the respondent as a general operative.  He took a break for around seven weeks between April and May 2020, when he worked for a sub-contractor. 

The complainant was dismissed in September 2023 when he went absent after he injured his back at work.  Prior to the injury, he had a dispute with his employer about a written warning he received on September 6th 2023 regarding poor workmanship.  His last day at work was September 12th 2023.

In a complaint under the Industrial Relations (Amendment) Act 2015, the complainant claims that he did not receive the rate of pay set out in the Sectoral Employment Order (Construction Sector) 2021.  Under the same heading, he complained that he wasn’t paid in lieu of notice and he also complained that he wasn’t paid for working overtime.  While he stated on his complaint form that he wasn’t paid for annual leave and public holidays, at the hearing, he said that did in fact receive the holiday pay to which he was entitled.

On behalf of the respondent, Mr Baiukkishiev said that the complainant was issued with a written warning on September 6th 2023, following a complaint from a customer about the standard of tiling that he did on a bathroom.  A few days later, on September 12th, he injured his back when he was lifting a kitchen appliance and he submitted a medical certificate indicating that he was unfit for work.  On September 16th, he attended a meeting with the owner of the company, Mr Nils Frišenbrūders.  He asked Mr Frišenbrūders for an explanation about the warning and for the contact details of the customer for whom the bathroom re-fit was carried out.

The complainant went home after the meeting and there was no contact from him for about 10 days.  Mr Frišenbrūders tried to contact him by telephone and he also asked a project manager to contact him, but there was no answer.  Around the end of September 2023, an employee of the company went to the complainant’s house but, according to Mr Baiukkishiev, the complainant “didn’t emerge from the house.”  A member of his family handed back the keys of the company van.  Mr Baiukkishiev said that Mr Frišenbrūders then attempted to contact the complainant about tools that had been in the van, but there was no response, and he decided not to contact him again.

Mr Baiukkishiev accepted that the complainant was not issued with a letter explaining the reason for his dismissal.  He said that he was removed from the company’s WhatsApp group a few days after he went absent due to injury on September 16th.  He was not dismissed at that point, but he was removed from the WhatsApp group because he was absent due to an injury.  Mr Baiukkishiev said that the complainant’s employment ended when the management were no longer able to contact him.

On the form he submitted to the WRC, the complainant said that he disputed the written warning issued to him on September 6th 2023.  He said that the letter referred to video evidence which he asked to look at.  I note from the documents submitted at the hearing, that the written warning issued to the complainant on September 6th 2023 makes no reference to video evidence.

Also, on the form, the complainant said that his employer asked him to sign back-dated time sheets and that he refused.  Around the same time, he asked his employer to sign a form for the Department of Social Protection.  He said that a manager told him that he would sign the form if he signed the back-dated time sheets.

During his evidence, the complainant submitted a copy of a message he sent by WhatsApp or email to Mr Frišenbrūders on September 15th 2023.  His message was about the warning he received on September 6th.  He said,

“I cannot accept this warning letter as this letter needs to be explained to me in writing with copy of original complaint and supported by photographic evidence.  Looking forward to hearing from you at your very earliest convenience.”

In his evidence at the hearing, the complainant said that, on September 12th 2023, he looked for help to lift a dishwasher, but he got no help.  He lifted the dishwasher and hurt his back.  He said that one of his colleagues saw what happened and asked him if he needed an ambulance, but he said that he would go to his doctor.  He drove himself to the doctor in the company van.  He stayed at home for one month.  In his evidence, he produced a copy of a second email to Mr Frišenbrūders that he sent on September 15th 2023 in which he asked him to keep the CCTV footage of the accident on September 12th.  Mr Baiukkishiev said that the respondent has retained this footage.  The complainant said that he sent medical certificates to two email addresses in the company and he presented a copy of one of these certificates which was dated September 12th 2023.  The complainant said that the accident was captured on CCTV and he asked Mr Frišenbrūders if he could see the recording, but he never saw it.

The complainant said that “maybe a day or two” after the accident, someone from the company came to his house to collect the van.  He said that he wanted to go back to work, but after a week and a half, he was removed from the employees’ WhatsApp group.

On September 29th 2023, the complainant wrote again to Mr Frišenbrūders, reminding him about the email he sent to him on September 15th.  He got no reply and he wrote again on October 4th.  In his email, he asked for a copy of the CCTV footage of the accident and a copy of the photographic evidence of the “bad workmanship” referred to in the written warning on September 6th.  It seems that, around the same time, in a WhatsApp message, the complainant sent his employer a copy of a letter from the Department of Social Protection in relation to his claim for social welfare sickness benefit.  Mr Frišenbrūders replied and said,

“Please refrain from messaging.  You can send your request over email which will be answered in due course.”

The complainant replied to Mr Frišenbrūders that he had sent his message over email and he said that an answer was quite urgent.  It seems that after this correspondence, there was no further contact between the complainant and his employer.

Was the Complainant Dismissed?

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract, or the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

At the hearing, when I asked Mr Baiukkishiev if the complainant was dismissed, he said that he was and that his dismissal came about when he didn’t respond to the efforts of managers to contact him at the end of September 2023, when he was at home after injuring his back at work.  The fact that a member of staff went to the complainant’s house to retrieve the company van indicates to me that the intention of the employer was that he should not return.  This was underlined by the efforts of Mr Frišenbrūders to get the complainant to return the tools that were in the van.

A final consideration under this heading is the fact that, when the complainant didn’t return to work, no one from the company went looking for him and there appears to be little regret about his departure.  In his submission, Mr Baiukkishiev refers to “treatment and performance issues,” and the complainant’s assertion that he was “treated unfairly and penalised for no valid reason.”  Mr Baiukkishiev said that the respondent’s WhatsApp records show that the complainant frequently went on sick leave at short notice and that he didn’t return from holidays when he was due to return.  He said that customers complained about the work that he did and that Mr Frišenbrūders has photographs of his bad workmanship and of him sleeping on customers’ premises.  Despite all these problems, Mr Baiukkishiev said that the complainant suffered no penalties.  Taking these allegations into account and based on Mr Baiukkishiev’s assertion that the complainant was dismissed, it may reasonably be inferred that the complainant was, in fact, dismissed.

Having reached this conclusion, no examination is required of the complainant’s submission that he was constructively dismissed.

The Legal Framework

The basis of our approach to dismissal is at s.6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) which 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(4)(b) of the Act provides that,

“…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 …the conduct of the employee.”

From this, we understand that the burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  The employer did not issue a letter to the complainant explaining the reason for his dismissal; however, at the hearing, Mr Baiukkishiev said that he was dismissed when he couldn’t be contacted by management after he went absent due to an injury on September 12th 2023.  This position is somewhat contradicted by the evidence of the complainant, who said that he wrote to Mr Frišenbrūders on October 4th, asking him to provide photographic evidence of his accident and also asking him to sign a form for the Department of Social Protection.  A copy of this October 4th email is included in the documents the complainant provided at the hearing.  He also included a response from Mr Frišenbrūders in which he said, “Please refrain from messaging.  You can send your request over email which will be answered in due course.”

The issue for me to consider is, was the complainant’s conduct so unacceptable that it was reasonable for the respondent to dismiss him?  I am also required to consider if the employer followed any standard, fair procedures to bring an end to the complainant’s employment.  It is apparent that, after September 12th 2023, the respondent simply stopped rostering the complainant for work and that they then made no effort to find out if or when he would be fit to return.  I acknowledge that the complainant didn’t take any action to establish that he was in fact, dismissed and his first complaint about his dismissal was when he filled in his e-complaint form for the WRC on October 17th 2023.

Conclusion

Having considered the written submissions and the evidence at the hearing of this complaint on January 20th 2025, I have reached the conclusion that it was unreasonable for the respondent to dismiss the complainant without first writing to him to inform him that his job was at risk if he did not contact his manager to discuss his absence.  The management should have then requested the complainant to attend a disciplinary meeting to discuss the conduct and workmanship that ultimately, led to them ending the employment relationship.

It is my view that the complainant also acted unreasonably.  By failing to communicate with anyone about the return of the company van, by not returning the tools from the van and by not notifying his employer when he was capable of returning, he contributed significantly to the respondent’s decision to dismiss him.

I have concluded that the complainant was unfairly dismissed and I decide therefore, that his complaint is well founded.  Considering the issue of redress, I must take account of the fact that the complainant made no effort to persuade his employer that he should return to his job after his back injury or to appeal against his dismissal.  I am mindful also that he is a skilled construction worker and that, at present, there is a high demand for employees with his experience.  Based on these considerations, in accordance with s.7 of the Unfair Dismissals Act 1977, I direct the respondent to pay the complainant compensation of €2,800, equivalent to approximately four weeks’ pay.  This award is subject to the normal deductions of PAYE, PRSI and USC. 

It is the complainant’s case that his pay and conditions of employment were governed by the Sectoral Employment Order (SEO) for the Construction Sector (Statutory Instrument 598 of 2021).  When his employment was terminated, he earned €140 per day, which, based on an eight-hour day is equivalent to €17.50 per hour.  He also had the use of a company van.  As a general operative in the construction sector with more than one year of experience, he claims that he is a grade B construction worker.  With effect from February 1st 2023, the hourly rate of pay for that grade of worker was €18.99 per hour. 

In his submission to the WRC, Mr Baiukkishiev included a copy of the final payslip issued to the complainant on September 9th 2023.  This shows that his weekly pay was €700, consistent with his evidence that he earned €140 per day, or €17.50 per hour.  Another payslip shows that, in the week of July 15th 2023, the complainant was paid €840.  Mr Baiukkishiev said that the complainant was paid when he worked overtime, although the hours worked as overtime are not indicated on the payslip.

The 2021 SEO for the Construction Sector (SI 234 of 2019) provides a definition of the sector to which the terms of the SEO applies:

The sector to which the Order should have application is defined as the sector of the economy comprising the following economic activity:

• The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings;

• The clearing and laying out of sites for buildings, the construction of foundations of such sites, the construction, reconstruction, repair and maintenance within such sites of all sewers, drains and other works for use in connection with sanitation of buildings or the disposal of waste;

• The construction, reconstruction, repair and maintenance on such sites of boundary walls, railings and fences for the use, protection or ornamentation of buildings, the making of roads and paths within the boundaries of such sites;

• The manufacture, alteration, fitting and repair of articles of worked stone (including rough punched granite and stone), granite, marble, slate and plaster;

• The construction, reconstruction, alteration, repair, painting, decoration and demolition of roads, paths, kerbs, bridges, viaducts, aqueducts, harbours, docks, wharves, piers, quays, promenades, landing places, sea defences, airports, canals, waterworks, reservoirs, filter beds, works for the production of gas or electricity, sewerage works, public mains for the supply of water or the disposal of sewerage and all work in connection with buildings and their sites with such mains; rivers works, dams, weirs, embankments, breakwaters, moles, works for the purpose of road drainage or the prevention of coastal erosion, cattle markets, fair grounds, sports grounds, playgrounds, tennis-courts, ball alleys, swimming pools, public baths, bathing places in concrete, stone tarmacadam, asphalt or such like material, any boundary walls, railings, fences and shelters erected thereon;

• The painting or decoration of poles, masts, standard pylons for telephone, telegraph, radio communication and broadcasting;

• Ground levelling, ground formation or drainage in connection with the construction or reconstruction of grass sports grounds, public parks, playing fields, tennis-courts, golf links, playgrounds, racecourses and greyhound racing tracks.

The respondent is in the business of constructing garden rooms, house extensions and one-off  houses.  While some elements of this work may involve the laying out of a site and the construction of drains, the complainant’s evidence was that, when his employment ended, he was engaged in internal work such as kitchen assembly and bathroom fitting.  This is not the category of work that is encompassed by the SEO and I find therefore that, contrary to the complainant’s assertion, he was not a category B worker in the construction sector.

The complainant said that he worked overtime on one or two Saturdays a month.  Based on the payslips submitted by Mr Baiukkishiev, for the respondent, I am satisfied that the complainant was paid when he worked additional hours  on top of his standard working week.

I have concluded that the provisions of the SEO for the Construction Sector do not apply to the work carried out by the complainant and I decide therefore, that this complaint is not well founded.

At the time of his dismissal, the complainant had been employed by the respondent for slightly less than four years.  In accordance with s.4 of the Minimum Notice and Terms of Employment Act 1973, he claims that he was entitled to two weeks’ pay in lieu of notice.

In his submission, Mr Baiukkishiev did not address the complainant’s claim that he got no notice of the termination of his employment or that he was paid in lieu of notice.

In accordance with s.4 of the Minimum Notice and Terms of Employment Act 1973, I am satisfied that, as an employee with more than two years and less than five years of service, the complainant was entitled to two weeks’ notice of the termination of his employment.  I find that he was dismissed without notice and without pay in lieu of notice,

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €1,400, equivalent to two weeks’ pay.  As this award is compensation for breach of a statutory entitlement, it is not subject to deductions.

Dismissal, failure to follow procedures, notice, Sectoral Employment Order for the Construction Sector