Complainant

Respondent

Parties

Severica Petronel  Irimia

Absolute Drain Services Ltd. t/a Greenday Environmental

Representatives

  N/A

 Conor Harty, Harty Virtual HR.

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-00067660-001

25/11/2024

On 19 February 2024, the Complainant commenced employment as a Drainage Engineer / Technician with the Respondent. On 18 November 2024, the Complainant’s employment was terminated and he was paid two weeks’ pay in lieu of notice.  At the time, the Complainant earned €18.50 per hour and worked 39 hours per week. On 25 November 2024, the Complainant filed his Complaint Form with the WRC.

The Complainant submits that he was unfairly dismissed contrary to the Unfair Dismissals Act 1977-2015, as amended (the “UD Act”), following a protected disclosure that he had made in relation to his work breaks. The Complainant submits that the reason given for his dismissal was “poor performance”. He is seeking compensation. The Respondent denies that the Complainant made a protected disclosure and the Respondent denies the Complainant’s allegations in full.

The Complainant provided written and oral submissions.

The Complainant outlined that his duties included responding to client “call-outs”, dealing with blockages and cleaning and unblocking drains. He said that job specs are provided for each job.

The Complainant referred to his submissions filed on 29 January 2025. He said that that the manner of his dismissal was “shameful”. He said that he was told to come to the main office, where he was handed his termination letter. He said that it was a shock.

The Complainant stated that he had an excessive workload and that some overtime hours had not been correctly calculated. He also took issue with his lack of work breaks. He said that he verbally raised his concerns with the office employees who told him to speak to Mr. Eamonn McShea, the Managing Director. He said that he did not have access to Mr. McShea and that he did not want to call him on his private number.

The Complainant also took issue with an alleged: unlawful recoupment of training fees; failure to provide a reference; and failure to pay for his sick leave.

The Complainant stated that he signed the timesheets, as otherwise, he would not get paid.

The Complainant stated that he sent an email dated 18 November 2024 in which he requested confirmation that his “daily working schedule configuration [was] fully known and requested by the Company Manager”. He also stated that he had no work break during an eight-hour shift and no travel time between jobs.

The Complainant denied that he refused to work three “call-outs” per day. He stated that he completed more than three “call-outs” per day.

The Complainant confirmed that he did receive the pay increase to €18.50 which came into effect from August 2024 and that he did receive the per diem meal allowance of €103.50 per week.

The Complainant stated that, after his employment was terminated, he was on job seeker’s allowance in early December and that he started a new job, of a similar nature, on 9 December 2024. He stated that he now earns €20.50 per hour.

As regards financial loss, the Complainant referred to the recoupment of his safe pass course fees (€220); his costs to attend the WRC hearing (€180); and one week’s sick leave which he states is owed to him (5 days work).

The Complainant also stated that he was not looking for money and that he wants to prove the Respondent wrong.

Cross-examination:

The Complainant stated that his email dated 18 November 2024 was his protected disclosure.

The Complainant confirmed that no one told him that if he didn’t sign the worksheet, he would not get paid. He confirmed that he was paid fortnightly and that he was also paid at the start of the month before submitting his worksheet.

The Complainant confirmed that his hours were 8am to 5pm.

The Complainant confirmed that he had previously contacted Mr. McShea two or three times on his mobile.

The Respondent provided written and oral submissions.

The Respondent submitted that it is a waste management company specialising in the maintenance of drainage systems. The Respondent provides services to commercial and domestic customers. The Respondent’s customer base is located in the greater Dublin area.

The Respondent submitted that the Complainant received his work breaks. To this end, it referred to the signed timesheets signed by the Complainant. The Respondent also submitted that it provided the Complainant with a per diem meal allowance, totalling €103.90 per week.

The Respondent submitted that the Complainant refused to complete three “call-outs” per day and that his employment was terminated. The Respondent submitted that the Complainant did not have 12 month’s service for the purposes of the UD Act. The Respondent further submitted that the Complainant did not make a protected disclosure pursuant to the Protected Disclosures Act 2014 as amended (the “Protected Disclosures Act”).

Witness Evidence – Mr. Eamonn McShea:

Mr. McShea outlined that he is the Respondent’s Managing Director and Owner since 2011. He outlined that he has oversight of the company and that more specifically, he deals with sales and sales-related matters. He outlined that the Respondent has 15 employees and that there are six to seven engineer / drainage technicians, such as the Complainant. He outlined that the Respondent provides a front-line, 24-hour service. He said that that the engineers work on call at different times during the week. Mr. McShea outlined that the Respondent receives a variety of “call-outs”, including night-time “call-outs” from client hospitals. He stated that the Respondent works emergency hours. He stated that everyone needs running water and a flushing toilet.

Mr. McShea confirmed that the Complainant worked for the Respondent from 19 February 2024 until 18 November 2024. He also confirmed that the Complainant’s starting salary was €17.00 per hour and later increased to €18.50. He outlined that employees have access to an online portal where they can access wage slips, holidays and the employee handbook which contains the Respondent’s whistleblowing policy. He outlined that he did not receive a protected disclosure. He stated that he had not received anything in writing from the Complainant save his complaint that his pay rise was not set out in a contract.

Mr. McShea outlined that jobs are allocated to engineers using a software system called “GeoOp”, in which all employees are trained. These jobs can be allocated in 1-, 2-, 3-, 4-, hour allocations or full day allocations. He stated that most jobs take between 25 and 40 minutes. He said that engineers work longer days when “on call” and that they are paid overtime. He said that engineers have “ownership” of their day and that they schedule their allocated jobs and their own work breaks. He stated that they receive a per diem meal allowance and that it is for them to take their work breaks during their schedule. He referred to the timesheets and noted that the Complainant had signed the same. He stated that if an engineer cannot complete all of their allocated jobs, they can ring the office to have jobs rescheduled. He said that it is for the employee to ring a customer and / or the office to say if they are running late.

Mr. McShea stated that his office employees informed him that the Complainant was taking issue with his hours and the time taken to travel between jobs. He stated that the Complainant was failing to communicate with the office regarding jobs that were overrunning and that he was also failing to update clients. He stated that the office would only find out afterwards, resulting in the office having to reschedule jobs and asking other engineers to step in. Mr. McShea outlined that, in the circumstances, he “made the callthat the job would not suit” the Complainant and so he terminated his employment and gave him two weeks’ pay in lieu of notice.

Cross-examination:

Mr. McShea stated that he was told that the Complainant said that three “call-outs” per day was enough.

Mr. McShea stated that the lists of jobs provided by the Complainant concerned days when he had been on-call. He stated that overtime is paid when employees are on-call.

Mr. McShea stated that the Complainant would have received his contract on the day he started.

The Law:

The Unfair Dismissals Act 1977 – 2015:

Section 6 of the Unfair Dismissals Act 1977 – 2015 (the “UD Act”), as amended states as follows:

“Unfair dismissal.

6.—(1) 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.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

[…]

(ba) the employee having made a protected disclosure”.

Pursuant to section 6(2D) of the UD Act, an employee who makes a protected disclosure is not excluded from bringing his unfair dismissal complaint under the UD Act if he has less than one year’s service.

The Protected Disclosures Act 2014:

The definition of a protected disclosure is contained in s. 5 of the Protected Disclosure Act 2014 as amended (the “Protected DisclosuresAct”):

“Protected disclosures

(1)  For the purposes of this Act “protected disclosure” means, subject to subsection 6 and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6,7,7B, 8,9 or 10.

(2)  For the purposes of this Act information is “relevant information” if—

(a)   in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b)  it came to the attention of the worker in a work-related context.

(3)  The following matters are relevant wrongdoings for the purposes of this Act—

(a)  that an offence has been, is being or is likely to be committed,

(b)   that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

[…]

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access.

[…]

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”

Findings and Conclusion:

The Complainant was employed by the Respondent for approximately nine months. Pursuant to section 6(2D) of the UD Act, an employee who makes a protected disclosure is not excluded from bringing his unfair dismissal complaint under the UD Act if he has less than one year’s service.

In his evidence, the Complainant confirmed that his work hours were 8am to 5pm. He travelled between his allocated jobs and confirmed that he was paid a per diem meal allowance, totalling €103.90 per week. He confirmed that he signed his weekly timesheets, some of which were submitted to the WRC. On the timesheet dated 30 August 2024, the Complainant ticked the box to confirm that he had received his statutory rest entitlements.

The Complainant alleged that he was not provided with his work breaks and that he made a protected disclosure regarding the same on 18 November 2024. To this end, he referred to his email dated 18 November 2024, in which he requested confirmation that his “daily working schedule configuration [was] fully known and requested by the Company Manager”. He also stated that he had no work break during an eight-hour shift and no travel time between jobs.  He did not invoke the whistleblowing policy set out in the Employee Handbook, which was available on the employee portal.

The Complainant had a grievance regarding his work breaks. This is a matter which arose under his contract of employment. Moreover, it is a matter concerning a complaint about his employer, the Respondent, which concerned the Complainant exclusively. In the circumstances, it is not a wrongdoing as defined by section 5(3) of the Protected Disclosures Act and does not amount to “relevant information” for the purposes of the protected disclosure definition. Therefore, it follows that the Complainant did not make a protected disclosure. The Complainant had nine months’ service. In the circumstances, the Complainant was not unfairly dismissed.

For the reasons set out above, I find that the Complainant was not unfairly dismissed and that the complaint is not well founded.

Unfair Dismissal 1977 – 2015, Protected Disclosure.