Complainant

Respondent

Parties

Enda  McCarry

Forbairt Na Rossan Teoranta

Complainant

Respondent

Anonymised Parties

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Representatives

Vernon Hegarty SIPTU

Patricia McCallum BL instructed by Séan Boner Solicitor of Seán Boner & Company

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-00041859-001

08/01/2021

Overview

This unfair dismissal complaint is in respect of a fixed term employment contract that was not renewed in July 2020 when the Complainant refused to sign it. The Complainant alleges that by then he had acquired rights under the Unfair Dismissals Acts (UDA) and no fair procedures were applied to him prior to the Respondent dismissing him.

The Respondent’s defence is that the Complainant’s fixed term contract was not renewed in July 2020 because (a) he would not sign the contract, (b) they required him to sign it to receive Department of Social Protection DSP funding and (c) to ensure that by signing the contract the Complainant would discontinue what had been a poor performance of his employment duties.

By alternative defence, if the AO finds that the dismissal was procedurally unfair the Respondent contends that, any compensation award should reflect his significant contribution to the dismissal and/or that he has failed to prove loss of earnings and/or that he failed to mitigate his loss.

Length of the Adjudication Hearing

This Adjudication hearing was unusually protracted, taking place over eleven days between 15 February 2022 and 11 October 2024.

A jurisdictional preliminary application raised on behalf of the Respondent on the first hearing day (15/2/22) (that the Complainant was precluded from bringing a UDA complaint because he was on a fixed term contract) was withdrawn on day 2 (27/4/22) of the Adjudication hearing.

On Day 3 (12/9/22) the sworn evidence of the Respondent commenced.

Days 4 (21/12/22) Day 7 (13/5/22) and Day 8 (14/5/22) were lost days due to illness on the Respondent side.

Of the 11 hearing days allocated to this Adjudication, evidence and submissions were heard over 6 days.

Paul Greene, (PG) the chair of Respondent in 2020, gave evidence under Oath as follows:

The Respondent is a charity the primary role of which is to oversee the Community Employment (CE) Scheme for the local area, Dungloe, Co. Donegal.

The Respondent is voluntary Board.

The CE scheme had one supervisor and 24 workers.

The Complainant was employed as the supervisor

The Complainant got work directions from members of the Respondent  and another sponsor organisation Respondent , Tidy Towns (TT).

The CE scheme is funded by the Department of Social Protection (DSP.)

The workers on the scheme are engaged for one year. The purpose of the scheme is to help those who are long term unemployed to get back to work by offering them part time/ temporary placements to allow them to upskill and at the same time contribute to the local area.

The Complainant was employed as the CE supervisor of the scheme between 2009 and 2020.

The first written contract for the Complainant that can be evidenced is dated August 2015. The title of the contract is “A Contract of Employment for Community Employment Supervisor Forbairt na Rossan (Indeterminate Duration.)” The contract states that it is subject to funding being provided from the Exchequer. It is conceded that this contract, nor any iteration of the contracts, did not contain a section 2(2)(b) waiver of UDA rights.

At the start of his employment there were no problems with the Complainant. He was reliable and a hard worker and PG defended him when he was being criticised by others. But as time went on, around 2018 the Complainant became more concerned with health and safety and less concerned about accepting work instructions. He became contrary. He requested that instructions be given to him in writing. This was impractical. As the Complainant was the supervisor of the CE workers, this was problematic. There were many tasks that needed to be done each day. Getting every instruction in writing was not possible.

At the end of the employment the relationship between the Complainant and the Respondent  entirely broke down. Based on his conduct the Respondent  decided to not renew his contract in July 2019. Due to SIPTU intervening and DSP informing the Respondent that insufficient notice had been given to the Complainant to not renew his contract the Respondent was forced to renew his contract for a further year, albeit that it was not signed by the Complainant.  

Problems continued during 2019 and were exacerbated by Covid breaches in May 2020 and the Respondent decided again to end his contract. In June 2020, after a very public and divisive social media campaign the Respondent met with the Complainant and SIPTU to get the Complainant to sign a contract for 2020. He refused to sign it following which his contract was not renewed.

The work of the Complainant was decided by the Respondent . There were Respondent meetings and there were also other Sponsors meetings which the Complainant attended with the Respondent together and the TT Respondent . The refusal to take instruction started with a dispute between the Complainant and the chair of the TT Respondent  in 2017.  But as time went on his obstinate attitude spread to accepting instructions from the Respondent. By 2019/2020 the situation became entirely untenable. 

Chronology

2017

At a Sponsors Meeting in February 2017 the Complainant said that the CE workers should not be asked to trim grass on roadside because they were not insured to do road work. He refused to instruct the CE workers to put up bunting because they were not insured to work at a height.

He refused to strim grass area around the Court house saying that another person had this contract and for the CE workers to do this would constitute job displacement, (a term of the scheme was that no job would be done by CE workers if to do so would displace another worker from paid employment.)

His uncooperative conduct commenced firstly with a member (JOD) of the TT Respondent who was also on the Respondent . The Complainant refused to deal directly with JOD and he objected to what he considered to be an overuse by TT of the CE workers at the expense of the Respondent.

2018

At a Sponsor meeting on January 2018 work was being done to the Labour Exchange Building (LEB) the Complainant claimed that the stairs in the building were dangerous and he would not instruct the CE workers to use it. He claimed that the DSP would not sanction it. PG approached DSP who advised that the stairs were safe and could be used. The Complainant then asked for this in writing. This lack of cooperation ultimately resulted in a €5000 loss to the Respondent because a tenant who had been found to rent out the downstairs floor of the building (if the CE workers moved upstairs) was lost because the Complainant refused to use the stairs.

The Complainant refused to allow the CE team to cut grassy verges on the roadside, citing lack of insurance and health and safety concerns.  JOD of TT left a Sponsor meeting very annoyed and then the Complainant then insisted on getting an apology from JOD. Each objection created a further problem. The work that needed to be done was no progressing. It was like a battle of wills.

Following that meeting a letter was sent to the Complainant on 5 April 2018 setting out a list of what was regarded as unreasonable behaviour, which was frustrating the work of the Respondent.

These included his refusal to clear and fix gutters on the LEB, refusing to use stairs in the LEB or move the CE scheme workspace upstairs, refusing to create a storage space in the LEB, not tidying the graveyard of the Catholic church, (which contributed financially to the Respondent.) The criticisms of the Complainant were all valid.

The Complainant replied by way of a holding letter that he was seeking advice on the criticisms that were levelled at him and that he was stressed. However, he never gave a substantive reply to the Respondent’s letter.

At a Sponsors meeting on 26 April 2018 the Complainant was uncooperative. He was not happy with the CE scheme moving upstairs in the LEB or using the dangerous stairs. He sought a letter of indemnity in case the CE workers were injured. He said that there was not enough room in the basement to store equipment. He complained about the CE workers working at height. He requested that work instructions needed to be done be given to him in writing. The Respondent complied with his request but this was highly impractical. The Respondent is made up of voluntary members most of whom had day jobs. They needed to be able to instruct the Complainant when the need arose. After that meeting, he was asked to hang flower baskets and he insisted that this be added to the written list.

On 14 May 2018 JOD of TT wrote to the Complainant and requested that TT work be done, and that topsoil be delivered. The Complainant did not like when JOD asked him to do a task and always resisted it or came up with a reason why it should not be done. It was like he felt that he did not need to accept instruction from a sponsor body despite him being employed to do so. 

If a local organisation requested the Respondent that CE work be done, the Respondent then had to advise the organisation that it would need to be put in writing. This became cumbersome.  When Rosses Radio asked that a 2-inch hole be drilled between the studio and another room the Respondent had to ask them to put the request in writing. This excessive formalism was unnecessary and frustrated the work that needed to be done within the community.

The tasks that needed to be done were not done. A job taking down bunting and streamers from the main street of the town was asked by PG three times before a stern letter was sent by PG to the Complainant. He seemed to be suiting himself more and more and getting defensive even when a reasonable request was made of him.

On 15 November 2018 the annual meeting about Christmas lights took place. The Complainant advised the Respondent that he was not able to do the lights that year. The hanging of Christmas lights is an important community job, one that binds the community and one that the community expects to be done. CE scheme workers had always done it until then. The Complainant said that he had a sore knee. A cherry picker lift was offered but the Complainant still said no. He also told the Respondent that one of the lights was not working, but did not see it as his job to get that fixed. He was simply withdrawing responsibility for anything to do with the job.

Around this same time a report was received by Respondent that the CE team under the Complainant were doing private work in a hotel, erecting a stage.  When this was put to the Complainant at the meeting, he said that he and the workers were doing private work on their own time, not CE time. This made the Respondent concerned that the Complainant was using the CE workers like his band of workers who could do community work but only if he agreed to it and were also doing paid work under his direction.

PG said at the meeting that he would put a notice in the parish newsletter looking for volunteers to put up the lights.

The meeting did not end well, and PG said that no one could work with the Complainant and that he was responsible for a Respondent  member resigning.

At the next Sponsors meeting on 16 November 2018 the Complainant objected to what had been said to him at the previous meeting. He reconfirmed that he would not do the Christmas lights that year. A Respondent member suggested that the local fire brigade be asked. The Complainant advised that (as a retained fire fighter himself) he had already asked the fire service, but they were unable to help. A Respondent  member said that a notice would be posted in the parish newsletter.

The Respondent placed a notice in the parish newsletter. It referenced the Complainant and that the Christmas lights would not be put up this year. The Complainant was upset about this and contacted the parish priest following which the notice was physically cut out of every copy of 500 parish newsletters. This dramatic action drew significant adverse attention to the Respondent. It undermined the position of the Respondent within the local community.

On 30 November 2018 PG wrote to the Complainant stating that it was been discussed at the meeting that a notice would be placed in the parish newsletter. PG stated that the notice should not have been removed under the Complainant’s instruction. The Complainant was reminded that he was previously warned about his uncooperative conduct and that verbal warnings were issued to him.

The Complainant replied by letter dated 13.12.2018 stating that while a parish notice was discussed at the meeting it was never said that a notice would identify the Complainant with the lights not being erected. He repeated that he had an injury and was unable to do the job. He requested that the warning be removed from his personnel file.

PG accepted that the letter did not warn him that he could risk losing his job.

In PG’s opinion, while the Complainant may have had a bad knee, he still could have done the Christmas light using the cherry picker that was offered. He was just being contrary. The CE workers had always done the lights before. PG believed that his refusal was an excuse to not comply with a reasonable request.

PG asked the Complainant to put up the town crib and Christmas tree. He again refused. Then a voluntary group asked him to help them put up the crib and he helped them. It was as if he just wouldn’t take instructions from the Respondent, but they were his employer.

The Respondent decided instead of written instructions, that they would create a work diary, which the Complainant could tick off, as each of the tasks were done. But he refused to cooperate with this. PG felt that the Complainant simply did not want to be accountable to instructions that were given to him by Respondent  members.

2019

The early part of 2019 was difficult to deal with the Complainant. He wanted the 2018 warning removed from his file.

In April 2019 at a Respondent meeting the Complainant was very uncooperative. He asked that instructions - that he return a power washer to PG’s shed instead of being left at the LEB - be provided in writing. He said that the DSP would not sanction that, even though the washer belonged to the Respondent. It was getting ridiculous.  

On foot of earlier complaints by the Complainant to the Respondent about dangers of the CE workers working on a public roadway, the Respondent had organised a traffic management course for him to attend. To that the Complainant said that he was unable to attend because he was not free on Wednesdays for 6 weeks. He did not wish to do the course as it was valid for only one year and the CE workers were not insured to do road work. The Complainant asked that the 2018 warning be removed from his file or else he would raise a formal appeal. The Complainant was advised that a painting job that he had been asked to do a year earlier remained not done.

A Board meeting took place on 21 May 2019, PG asked the Complainant did he have a grievance with the Respondent and he said no. He disputed that his work was not being done or that he was not following instructions.  He accepted that he told people in the local community that he had been dismissed at the end of 2018, which was not the case. The Respondent gave him examples of his work deficiencies and poor attitude. He was advised that the renewal of his contract in July was not a given and that unless his attitude changed the supervisor role would be advertised. He told them that he would have a problem reapplying for a job that he had done since 2009.

On 22 May 2019 his trade union, SIPTU requested a meeting with the Respondent.

Following this the work of the Complainant improved for about 6 weeks. He did the work. He accepted instructions. He worked for TT. All was good from May to July 2019. The Respondent  thought that a solution had been found. But then it all went bad again.

In early August 2019 the Complainant was asked to move a portable toilet from the shorefront to the GAA pitches for use during summer matches. He refused to move it even though he had agreed earlier that he would. He said he did not know who owned the toilet and would not move it unless it was put in writing. It seemed to PG that his insistence that everything was put in writing was just a way of avoiding the work that was being asked of him.  

A review of the Complainant’s work performance done for the period August 2018-August 2019. This set out the following issues:

Frustration of the work of the Respondent

Refusal to accept instructions unless in writing

Cutting out the Respondent notice from the parish newsletter

Refusing to remove the CE work upstairs in the LEB or using the LEB stairs

Not managing the CE workers correctly allowing them to work in large numbers and not work efficiently

Allowing CE workers to leave work early

Not completing a Winter Work programme

No clearing graves in RC church and repair graveyard

Unwillingness to work with TT

Not working on his own initiative and refusing to accept instructions

Not doing the Christmas lights by using a cherry picker and refusing to erect crib or Christmas tree.

Not removing festival streamers

He was advised that the post of CE supervisor would be advertised.

At a Sponsors meeting on 20 September 2019 the Complainant was uncooperative. On foot of representations by the DSP, the Respondent was advised that there was insufficient notice to not renew the Complainant’s contract. The Respondent decided that his contract would continue until July 2020.

The Complainant said that the Christmas lights and crib were a waste of time because lights require a lot of maintenance.  The Complainant agreed to do a tree pruning job so long as the CE workers were not grass cutting, to which he was advised that there was no grass cutting done in October.

In October 2019 the Complainant’s trade union, SIPTU wrote to the Respondent seeking a meeting about his contract. He continued to work but would not sign the contract. This was expressed to be because of a “conflict of interest” clause.

At a Sponsor meeting on 18 October 2019 PG complained that the Complainant was not filling in the work diary as requested. The problem with this was that it was the Complainant who had requested tasks to be put writing but then did not want to be accountable to the Respondent in terms of jobs that were done or not. The Respondent never knew what work was being done and what was not.

The Complainant told PG at the meeting that he had men to manage rather than ticking off jobs in the diary. PG told him that CE workers were still leaving work early and the DSP would be contacted if this continued. PG asked about the construction of temporary steps by a portacabin, and the Complainant requested a design plan be provided to him because building regulations varied on whether steps were in a public or private place. PG told him that they were only temporary steps.

At a Sponsors meeting on 8 November 2019 PG raised a serious issue about the Complainant. This was that the Church of Ireland (CofI) had requested that a ramp be built at the front door of the church however the Complainant and the CE workers did a much more developed job (constructing a ramp and a footpath around the graveyard) even though there was no Respondent sanction for that.

PG asked him how was it, that he was able to construct temporary steps for a portacabin but could build a ramp and a footpath using his own machinery in the CofI graveyard without permission. PG was concerned that the Complainant was embarking on private work on CE scheme time. PG ordered him to stop the CofI work at the time and raised the issue at a Respondent board meeting. The Complainant explained that he had got the plan from the CofI and that it was not private work. The Complainant was reminded that the CofI contribute only €500 to the CE Scheme annually and that there were other local organisations whose contribution was greater and whose work was more of a priority.  PG showed photographs of the work to the CofI graveyard to show the extent of work that was being done. The CE workers time keeping was again raised as a problem which the Complainant was not managing properly.

A meeting took place on foot of a request by the Complainant’s trade union representative and following this the attitude of the Complainant seemed to improve again for about 2 weeks.

2020

What proved to be a temporary improvement in the Complainant’s attitude was acknowledged at the next the Respondent meeting on 21 January 2020, which the Complainant did not attend however it was also noted that the same problems emerged again in that the work diary was not being filled in.

At the next Respondent meeting on 12 February 2020 which the Complainant did not attend the same the minutes record that his problems were continuing. Time keeping of the CE workers was still a problem.

At the 21 February Respondent meeting the Complainant said that roadside work would not be done by the CE workers. This was despite that the Roadside safety course which the Respondent asked the Complainant to attend, still had not attended. When asked to do any task, the Complainant always had a pre-condition that needed to be met first or that the work lay with another body, such as the County Council. But he would do jobs for himself. For instance, he went up a scaffold to fix a GAA club roof but would not use the stairs in the LEB. The Complainant had become impossible, excuse after excuse.

Then in March 2020 Covid arrived.

The government guidelines on Covid stated that CE work was exempt if it was carried out outside. After a few weeks of highly restricted isolated living the CE work recommenced under highly restricted guidelines. On 15 April 2020 a list of jobs, were sent to the Complainant. This was all outside work on the shorefront and in the graveyard. The Complainant was provided with the Covid safety guidelines that the CE team were required to observe. The Complainant was met by PG who emphasised with him that the CE workers had to meet outside, maintain social distancing and that the Complainant was the only person who would be permitted into the LEB. The Complainant was asked to return signed pre-return work questionnaires to be signed by the CE workers 3 days before their return to work. This was not done.

On 20 May 2020 PG saw the Complainant going into the LEB with two of the CE workers and instead of meeting outside, the workers all arrived in shared cars. The Complainant was very lax about the Covid guidelines. This was during a time that the country was on high alert and local people were dying of Covid.

That was the tipping point for PG and the Respondent decided not to reissue the Complainant with a contract in July 2020. They informed the Complainant of this in May 2020. They had enough in 2019 and now they really had enough.

By letter dated 9 June 2020 SIPTU wrote to the Respondent threatening that if the Complainant’s contract was terminated that they would not approve the CE scheme and their support was necessary for the scheme to continue. This was tantamount to blackmail.  PG replied that if the threat was carried out SIPTU would abandon the 20 CE scheme participants to unemployment. A serious of disputatious emails followed. The CE Supervisor post was advertised and on 15 June 2020 PG received a letter from the DSP advising that because they, the DSP,  had not been advised and procedure had not been followed that the advert for the post of CE Supervisor must be removed from all recruitment platforms. PG responded advising that the contract with the Complainant could no longer continue and that if the CE scheme was to be removed from the Respondent, he suggested that it be given to another community organisation to run.

It became apparent to PG that SIPTU were feeding information to DSP sometimes false to put pressure on the Respondent to renew the Complainant’s contract. For example,  on 22 June 2020 PG was asked by DSP if the Respondent had engaged with Dungloe District Hospital to displace paid workers, which was untrue. PG advised DSP that it was untrue by letter dated 29 June and 7 July 2020. SIPTU’s engagement at this time was extremely damaging and they escalated the problem.

On 30 June 2020 SIPTU sent a long and highly aggressive letter to the Respondent which concluded by requesting confirmation that the Complainant would remain in his post.

On 10 July 2020 the Respondent learned that the Complainant had texted the CE workers that their scheme was ending and that they should contact their public representatives to stop this from happening. Some CE workers approached the Respondent members asking if it was true that the scheme was ending and that they would lose their jobs.

SIPTU then appeared on Radio Na Gaeltachta and issued press releases. They organised public protests to prevent the Complainants dismissal. A campaign entitled “#I stand by Enda” was started and highly negative comments about members of the Respondent appeared on the Complainant’s Facebook page. Falsehoods that were being spread about the Respondent which were widespread and highly damaging. The community became divided over this issue based on inaccurate information spread by the Complainant and his trade union.  Facing the possibility that SIPTU would withdraw support to the CE scheme, which would end the scheme, the Respondent decided to meet with SIPTU to try to de-escalate the situation.

A meeting was arranged on Monday 15 July 2020 between the Complainant, SIPTU and Respondent  members to attempt to resolve the issues. The damage to the Respondent’s reputation needed to stop but the Complainant’s conduct also could not be allowed to continue.

During the meeting the SIPTU representative repeatedly insisted that a contract of indefinite duration be issued to the Complainant. However, that could not happen because while the contract was between the Complainant and the Respondent, it was funded by DSP and legally the Complainant was not entitled to a contract of indefinite duration. The Respondent offered the Complainant what he had before namely, a 52-week contract. There was no draft contract available to be considered at the meeting. The 2020 contract was the same as the 2019 version (bar a few minor updates) which he had not signed either. They raised the performance issues with him again - him requiring that all instructions be in writing and his refusal to take instructions.

After the meeting an updated contract was drawn updated July 2020 and sent to the Complainant. This was the same contract that was given to all CE supervisors in the country.  This was sent on the Tuesday the day following the meeting and the Complainant had until the Friday 19th July to sign it or else he would be deemed out of contract.

He did not sign the contract and on 20 July 2020 PG sent the Complainant a letter on behalf of the Respondent advising him that his contract was not being renewed.

The reasons cited in the letter were:

Refusing to sign a 52-week contract, having not signed a 2019 contract either

Frustrating the operation of the Respondent

Insisting that repetitive and ongoing work be put in writing to him

Failing to take instructions from the Respondent or TT

Questioning reasonable requests by the Respondent

Failing to work with other community groups

Time keeping

Not adhering to Covid guidelines

Two serious bullying complaints

Inciting the CE scheme workers to go on a protest march

Doing work not sanctioned by the Respondent leading to complaints from the public.

PG stated that had the Complainant signed the July 2020 contract he would have been employed by the Respondent.

On 21 July 2020 the Respondent received a reply letter from the Complainant objecting to the contents of their letter advising that he intended to go to the WRC.

Dealing with the Complainant’s claim of loss of earnings PG saw the Complainant’s car parked beside the ferry car park for Owey Island. From this he assumed that the Complainant was doing paid work on the island.

PG under cross examination stated as follows:

PG was familiar with the Complainant’s contract.

He was the Complainant’s line manager even though his role, as chair, was a voluntary position.

His contract was not renewed in July 2020 because the Complainant would not sign the contract.

In 2019, the Respondent considered to terminating his position because of his conduct but the DSP advised that it was too close to the renewal date, so they had to renew it but the Complainant refused to sign the 2019 contract. He did continue working for the Respondent from July 2019 for another year, without signing the contract.

While the decision to terminate his contract was considered in 2019 the plan was carried out in 2020 because he would not sign his contract and because of his continuing poor conduct.

The Respondent believed that, because his contract was a fixed term contract and because he had no rights to a CID, that they had the power to simply not to renew it.

In May 2020 the Respondent gave him notice that his contract would not be renewed but then because of the DSP interventions, as prompted by SIPTU, the social media campaign, the threatened protests, the negative news on local radio - the Respondent decided to reverse the plan and offer him another 2020 contract.

But then the Complainant upped the ante – or rather his union did – by insisting that he would be given a Contract of Indefinite Duration (a CID) even though that was non-negotiable as the Respondent was confined to a 52-week contract.

The contract was sent the day after the 15 July meeting. There was no draft contract at the meeting.

The 2020 contract was not substantially different than previous contracts. All CE sponsor organisations need to follow the advice from DSP as to the contract contents. DSP give updates to sponsor organisations each year. The 2020 contract was the same as all CE supervisors in the country received.

When asked, PG did not accept that the 2019 and 2020 contract were significantly different.

The 2017 contract was signed by both parties; the 2018 was signed by both parties, the 2019 contract was signed only by PG and not the Complainant. The 2020 was sent with the wrong date (2019) written on it, it but it was the 2020 contract with the 2020 DSP amendments incorporated into it.

While the 2019/20 contract included new provisions for CE supervisors, namely the maintenance of an accounting system, it was not expected that the Complainant would do that role, because that was always done by others in the organisation. When asked if that was ever communicated to the Complainant between sending the draft to him and the return deadline, PG said that there was no such conversation with him.

When asked, given these changes, which were significant changes, why the rush giving him only 3 days between the 16 July when he received the contract and 19 July when he was required to return it, PG replied that the changes were not substantive, and the Complainant knew enough to be able to sign it.

The contract was the version that DSP had provided to the Respondent who were not allowed to change it.

Allowing the Complainant to continue with fire service duties was allowed to be inserted in earlier contracts, even though DSP did not sanction that.

The changes to the 2020 contract were administrative. They were not significant. That was not what the issues between the parties were about. It was about the CID versus a 52-week contract.

The 2018 contract is titled an “indeterminate” contract and in the body of the contract it is described as a one-year contract.

In July 2020 PG understood that the Complainant was looking for a CID which would have made the Respondent liable for even if the DSP funding ceased. When it was put to PG that if funding was pulled by DSP the employment could not have continued. PG said that if he would still be an employee of the Respondent and be entitled to statutory rights from the Respondent if funding was withdrawn.

There were 11 justifiable reasons to not renew his contract. The letter of 20 July 2020 is clear on that.

PG accepted that no fair procedures as envisaged by his contract or the UDA were engaged by the Respondent prior to the termination of the Complainant’s employment, but that was because the Respondent understood that they could simply decide to not renew his fixed term contract.

When asked if DSP contacted PG and told him to remove the advert from Facebook in 2019 because procedures had not been followed, PG accepted that had occurred.

When asked if DSP contacted PG again in 2020 to stop the non-renewal plans because SIPTU were threatening to pull support from the scheme, PG accepted that DSP did contact him by phone and email.

When asked if the DSP were aware of fair procedures even if the Respondent was not, PG said they thought that they could decide not to renew his contract.

When asked why the Complainant was not told – if you do not stop doing X action or Y action you may face disciplinary action and may be dismissed, PG said that they tried to end his employment in 2019, but DSP told them that insufficient notice had been given so they had to row back. PG said that all the issues in terms of poor performance were raised with the Complainant on multiple times. The letters and minutes of meetings show that.

In respect of some of the issues that were relied on for poor performance the following was put to PG by way of cross examination:

That the gutters on the LEB were done. PG replied that they were not. The Complainant complained about working at a height. It took him two years to fix the gutters. In terms of the LEB roof fix, PG said that the Complainant procrastinated and told him that a scaffold would cost €1500 when the job ended up being done privately for €150.

PG said the Complainant had done the Christmas lights for ten years and then had a problem working at a height but he was able to fix a GAA clubhouse roof on a scaffold without any difficulty.

PG said that there were no completing interests at play. It was the Respondent, Tidy Towns and the Churches. The Complainant would not tidy the RC church grounds despite being asked continually to do it.

When asked was height not an issue for the CE workers, PG said it was never a real issue.

When asked was there no health and safety concerns for CE workers coming in from doing wet jobs and having to go up a narrow set of stairs in the LEB, PG said that there was nothing wrong with the stairs. DSP looked at them and said they were fine.

When asked about the break hole in the LEB, did the Complainant not ask for a compressor to do the job, PG said that all the Complainant had to do was drill a space to see if it was hollow so the Respondent could decide if they could use it for a storage space.

A document entitled Grievance, Investigation and Disciplinary Procedures was handed to PG and he was asked if the Respondent ever used this document to address the Complainant’s alleged acts of misconduct, PG accepted that the procedures were not followed although the Complainant could hardly contend that he was not made aware of the problems.

When asked was the Complainant ever told in July 2020 that he might lose his job if he continued with his alleged misconduct, he said that in July 2020 the issue was more about whether his contract was a CID or another fixed contract. But having threatened to end his contract in 2019 for specified misconduct and the Complainant continued this misconduct, he cannot say that he was unaware that his contract might end. That’s why the whole “#IstandwithEnda” protest was about. It was because the Respondent decided that his contract would not be renewed.  SIPTU were being aggressive threatening to pull the scheme and the Respondent decided to stand firm. They did so  until the damage to the Respondent got too great, the DSP intervened at which point the Respondent agreed to reengage with the Complainant. If he had signed the contract his employment would have continued.

PG was critical of SIPTU involvement in summer of 2020. In his view their involvement escalated the problems. Suddenly there were public protests, #IStandWithEnda social media campaign, DSP became involved, radio interviews etc. It was unnecessary and unhelpful. The tone of the SIPTU letters – talking about the Respondent members “having no conscience” and “losing their moral compass” was emotive and escalatory.

At the 15 July 2020 meeting a solution seemed possible. The standard CE supervisor contract was sent to the Complainant the next day but then he refused to sign it. That is what ended his employment. The debate at the meeting was only about whether the contract was indeterminate (meaning subject to DSP funding) or indefinite (which meant that the contract with us would continue with or without funding.)  PG said that the Respondent couldn’t give him a CID even if they wanted to. There was no authority to do that. SIPTU knew that. This whole situation become a vehicle for SIPTU to change the rights of CE supervisors nationally, but the Respondent couldn’t give him such a CID or play a part in whatever political jockeying SIPTU had in play with DSP.

PG denies that there were differences between the 2019 and 2020 contract and the differences that have been identified would not have been enforced anyway. The Respondent as a sponsoring body had no right to amend the contract.

When asked if he would accept that 2 days was an insufficient amount of time to consider the contract, PG said he thought that it was enough time. There had been enough of a conversation about it at the meeting. All the contracts were the same. No one expected the Complainant to be responsible for the whole financial management of the CE scheme, regardless of what was stated in the contract.

Several differences between the 2019 and 2020 contracts were put to PG and he said that these would not have changed the job of the Complainant.

PG said that the purpose of the 15 July 2020 meeting was to stop the negative campaign and to offer him his job back. The contract issues being raised now are not what was discussed at the meeting.

The Complainant’s Covid breaches were a tipping point for PG which led to the letter advising him that his post would be readvertised. But it was the background of his attitude that led to that.

When the Complainant requested a grievance meeting in 21 July 2020 letter PG said it was too late then, he had refused to sign the contract by 19 July (the deadline) and his contract was terminated on 20 July 2020.

In terms of the Respondent defence, that the Complainant contributed to his dismissal though his poor performance, PG was asked if the ladder that was provided to him for working at heights was tall enough, PG said that the Complainant was offered a cherry picker to do the Christmas lights and he still said no.

In terms of the CofI work exceeding what was sanctioned by the Respondent the Complainant would say that he was told to get instructions from the CofI and he followed the plan that was provided to him and when PG told him to stop, he stopped, PG said the work was a much bigger job and the Complainant was using his own digger and equipment. The larger job was not sanctioned by the Respondent and as a private contractor could have been paid for this work, it was displacement work, which was disallowed by the scheme. PG suspected that the Complainant was being paid but he cannot prove that.

When asked about the LEB in response to the Complainant’s evidence that he did the work as asked, PG refuted that. When asked if the Complainant had suggested to PG and Sean Bonner (SB) that the whole CE scheme could move into the annex of the building, PG replied that was never suggested by the Complainant. It was never discussed.

When asked if health and safety was behind moving the Dungloe Men’s Shed from the LEB to a school, PG disagreed and said that was about accessibility, not health and safety.

When it was put PG that even after his departure PG followed the Complainant to check up on his movements which resulted PG forming a baseless opinion that the Complainant was doing paid work in Owey Island solely because he saw the Complainant’s car parked in the ferry car park,  PG said he had noticed his car when he was playing golf and he assumed that because the car was there over consecutive days that he was out working on Owey.

In terms of the letter outlining reasons for dismissal, bullying incidents were raised, PG said that there were two complaints. The first was dealt with informally for which the Complainant apologised and the second another Respondent member dealt with it but he accepted that in neither were the Disciplinary Process used.

PG did not accept that there was a tension between the duties to different sponsors. It was the Complainant insisting that everything be in writing and signed by the Respondent, no matter how standard the instruction, that was the problem.

PG did not accept that the Complainant was trying to teach the CE workers about health and safety and what best practice was.

When put to him that he was not ever made aware that he was facing dismissal if he did not sign the contract in 2020, PG disputed this. He knew that the Respondent intended not to renew his contract unless her signed it. It had nearly happened a year earlier.  He received so many warnings about conduct since then. It was a running stream of warnings.

Cross examination of PG ended.

Sean Boner (SB) gave the following evidence under oath

SB is a director of the Respondent and has been the solicitor for the Respondent since the mid-1980s.

SB corroborated the evidence of PG insofar as he was directly involved in the problems that the Complainant created.

These were the issues concerning the LEB and the plan by the Respondent to rent out the downstairs part to a tenant and move the CE workers upstairs.

The question that PG was asked in cross examination - that the Complainant had suggested to PG and him that annex of the LEB could be converted into a space for the CE workers -  was never raised with SB, neither at the LEB or at a Respondent  meeting. The only thing that the Complainant said at that time was that he refused to allow the CE workers to go upstairs because the stairs were unsafe and because the Complainant refused to accept this instruction, the tenant which could have provided the Respondent with €5000 per annum, was lost.

In his experience with the Complainant, he seemed to deliberately want to frustrate the work of the Respondent.

The Complainant was always talking about health and safety but really it was an excuse for refusing to do work.

Two bullying complaints made against the Complainant.

The first was a CE worker who the Complainant put working in a graveyard on his own. He died since.

The second was a German CE worker who accused the Complainant of harassing him about clocking in the morning.  SB approached the Complainant and told him that it had to stop. He told him to apologise. A meeting was held and the Complainant did apologise but the problem did not stop after that because the worker applied to be transferred to a different CE scheme soon after.

SB attended the meeting on 15 July 2020. The meeting was to stop the local furore about the Complainant. There were posters on telegraph poles which stated “I back Enda.” There were very negative comments on Facebook about the Respondent and Respondent  members. Donegal Daily ran a news item quoting SIPTU that the Complainant signing the contract because it was a ruse by the Respondent  to get rid of him at the end of 2020 and that he needed a permanent contract. A permanent contract was not in the Respondent ’s gift to give. CE Supervisors were not entitled to fixed term contracts. The 2003 Protection of Employees (Fixed Term Work) Act (PEFTWA) precluded them from acquiring a CID. At the time of the protests in summer 2020 Radio Na Gaeltachta interviewed SIPTU. SIPTU was central to this media campaign against the Respondent. They were threatening to withdraw their support from the scheme and at the same time blaming the Respondent  for ending the scheme. The narrative was how badly the Respondent had treated the Complainant, which was entirely untrue.

The meeting of 15 July 2020 was arranged to stop this negative spiral and to offer the Complainant his job back. As he had not signed the 2019 contract it was necessary to get him to sign the 2020 contract.

SIPTU thought that they could bully the Respondent into accepting the Complainant back because they threatened withdrawal from the scheme unless the Complainant got a CID, which he was not entitled to. The SIPTU letter dated 10 July 2020 was threatening and unprofessional.

SB believes that SIPTU was the cause of the Complainant’s contract to being renewed. They were aggressive, insisting that he be given a CID (for reasons that SB believes was their own agenda - a political tactic to pressure the government to regularise the CE Supervisor contract into a CID nationally.)

In terms of the Respondent role within the Community, SB had two areas of priority. The first was that the Respondent would remain financially secure and second that the buildings that were owned by the Respondent would be well maintained.

In terms of these priorities SB asked the Complainant to clean the guttering on the Ionad (Centre) and the Complainant said he would neither work on a ladder or at a height but said that renting a lift would be expensive, which essentially provided no solution. Ultimately the Respondent paid another man to do it for €150.

The Complainant refused to follow instructions to see if there was storage space behind an internal wall.

When the Ionad porch roof was leaking, he refused to fix that. Between refusing to work at a height (health and safety) and refusing to work on roadsides (health and safety) the Respondent was forced to pay private contractors to do work that he should have been doing.

SB asked the Complainant to make two display boxes for the Ionad.  One for Niall Boyle, a local fiddler who played with the Dubliners and one for a Crolly doll, both local institutions of which the Dungloe Community is proud. The Complainant delayed and delayed and despite SB asking him 6 or 7 times he ultimately made one box for both displays which was not what he had been asked.  SB thought that at times he seemed to want to frustrate deliberately or mischievously those who gave him instructions.

There were three derelict fields in Dungloe. SB asked the Complainant to clear the fields 20 metres from the roadway because they looked unkempt. The Complainant said he would do it and then he said it was private property and he couldn’t trespass. SB then contacted the owners of the land and obtained three leases from them. Despite doing this and explaining that the CE team would not be trespassing, the Complainant still refused to do the work.

SB under cross examination gave the following evidence:

The Complainant refused to do work on the derelict fields. It had nothing to do with whether the property was private or not, or if the work would have been insured, the leases the permissions had been obtained. There was no reason for the Complainant not to do the work. He just shrugged his shoulders and did not do the work. His approach was to prevaricate and to not do the work rather than confront or actually explain his reasons for anything.

The problems started as far back as 2012 but became much worse at the end of 2018.

A rental income for the LEB which would have given funds to the Respondent was prevented by the Complainant’s non-cooperation.

The suggestion that is now being made for the first time that the LEB annex could have been used instead of upstairs, which was never suggested by the Complainant at the time and probably would not have worked because the annex area would be too small. But this option was never heard by SB until the Adjudication hearing. It is not mentioned in the many minuted accounts of Respondent  meetings when the LEB was discussed. In this respect the Complainant is not a reliable narrator.

When it was put to SB that the Complainant will say that he mentioned it to PG outside the LEB and during a Respondent  meeting and that PG told him that he would investigate it - and an objection was raised by the Respondent Counsel that this had not been put to PG in cross examination - the Complainant’s representative responded that what had been said to PG had also been said to SB at the LEB. To which SB said that the annex suggestion was not raised with him by the Complainant at any point – not during a Respondent meeting, not outside the LEB. No discussion was had about it at all.

In terms of the bullying complaints when it was put to SB that it was the Complainant who asked for the meeting to discuss the CE worker who was difficult, SB denied this. He did not accept the Complainant’s denial that he apologised to the CE worker at the meeting. He did not accept that that the worker was not at the meeting. SB said that once the Complainant apologised to the worker at the meeting that was the end of the matter. The complaint came through JOD of TT because the Complainant was asking the worker to use weedkiller without a mask.  SB denied that the Complainant asked for the meeting because he wished to discuss TT.

SB said that the dealings with the Complainant were always (a) what he would not do and (b) what he could not do. He was contrary and difficult.

SB accepted that there was no evidence that the Complainant received payment for work that was done on CE time. On several jobs, the Complainant used his own plant and machinery, which lent itself to suspicion.

SB thought that the meeting on 15 July was SIPTU deciding, not the Complainant. He blames SIPTU for what happened. It became a red line issue – a CID or nothing.

When asked was the Respondent worried about being caught with an employee for whom they would be liable on an ongoing basis, in case the scheme lost its funding, SB said that SIPTU accepted that DSP funding would need to be in place. SIPTU wanted a contract of indefinite duration, subject to funding being in place.

When asked was that not the comfort that the Respondent needed, that they would not be lumbered with a CE supervisor who they had no funding for, SB replied that the Respondent was concerned that they might be liable for redundancy if the funding ceased. Also given his conduct the Respondent were not happy to agree a permanent contract with the Complainant. Also the DSP were insistent that it could not be a CID because CE supervisors are expressly excluded from the right to a CID for CE workers under the PEFTWA 2003. SB said that SIPTU asked for a letter of comfort that the contract would be automatically renewed if funding was in place and the Respondent was unable to provide that. Only DSP could have decided that.

SB believed, as did the rest of the Respondent, that the Complainant’s contract was a fixed term. He was excluded by the provisions of the 2003 Act so could not be entitled to a CID. The Respondent did not consider if the contracts that they had provided to him excluded the provisions of the UDA under section 2(2) (b).

SB said that despite PG’s evidence that Friday 17th was the deadline, for him if the Complainant had signed the contract over the weekend, they would have accepted it but on receipt of his letter of 21 July the matter was closed. Resolution was not possible after that.

SB denied that he only asked the Complainant once to make the Crolly Doll/Niall Boyle display box. He said he asked him many times before it was done.

When asked was that part of the CE scheme work, ie asking the Complainant, who was employed to supervise CE workers, SB said that it was.

SB accepted that adverse comments on social media were posted on the Complainant’s Facebook page but were not posted by him personally.

SB did not accept that the Complainant tried to de-escalate local furore in May/June 2020 by what he tested to the CE workers. It seemed to SB to be a call to arms not an alternative to protest. But SIPTU were to blame in that. The Complainant was a vehicle for an agenda that they wished to push.

24 July 2020 was the last date of the Complainant’s employment.

Helena McClafferty (HMcC) gave the following evidence under oath.

HMcC was the Respondent office administrator/manager for the last 8 years.

The issues that the Complainant raised in respect of his 2019 contract was the fact that the procedures manual was out of date (which he was correct about and it was amended) and the amendments were ones that the DSP required. There was no significant difference between the 2019 and the 2020 contracts.

There were duties in the 2019 and 2020 contract that were never performed by the Complainant and according to the DSP should have been managed by the Supervisor but these were never done by the Complainant, with respect to the scheme accounting system and financial accountability. While the Complainant engaged peripherally with accounts, he did not have overall financial accounting responsibility for the CE scheme. But that was not the issue that troubled the parties at the 15 July meeting. That was to do with his contract would be made permanent or not.

HMcC gave the following evidence under cross examination

The contract that was provided to the Complainant in 2020 was dated 2019 in error. The contract dated 2020 was never provided to the Complainant. The draft which is dated 2019 is the one that he did not sign. The contract that he was provided with on 17 July 2020 had new provisions in it but these had come straight from DSP. The Respondent had no discretion to not include those provisions. The Complainant knew this.

End of Respondent evidence

The RespondentsSubmissions were as follows:

There were many meetings with the Complainant. Many phone conversations and many discussions during which he was told that his conduct and attitude was problematic and needed to change. While not stated expressly, it was implied that if this continued that he would lose his job.

The breaking point was after years of problematic conduct, he allowed Covid guidelines to be broken. He was the CE scheme supervisor. He ignored the seriousness of the situation. One of the directors of the Respondent died of Covid at the same time as the Complainant was being complacent about the rules. Another man from the town died after being convinced not to take the vaccine. It was a divided time for the community on top of an already divided community. He actions around Covid was the trigger to decide that enough was enough.

The Respondent believed, perhaps erroneously that they were within their right legally to decide not the renew his contract.

If he had signed the 2020 contract, he would have stayed on.

It was about SIPTU positioning. They wanted a CID for CE supervisors and the Complainant became the stalking horse for that.

The Scheme requires a contract to be signed by a CE Supervisor. The Complainant would not sign it. The Respondent believed that this permitted them to not renew his contract.

In the event that the complaint under the UDA is upheld, the Respondent requests that the award (a) reflects the lack of evidence in relation to his loss of earnings arising from the dismissal and that even though he had an accountant who made income tax returns on his behalf, no accounts were provided (b) that he showed little or no evidence of attempts to mitigate his loss, which he is claims is from 2020 to date, at a time when the country is in full employment and construction workers are very busy and (c) when there is clear evidence of poor work performance and poor work attitude that directly contributed to his contract not being renewed.

End of Respondent submissions/

The Complainant, EMcC, gave evidence under oath as follows:

EMcC was the CE Supervisor on the CE scheme that was managed by the Respondent from 2009.

He enjoyed work and there were no problems until 2018.

There was a fractured relationship between 2 sponsors of the scheme, his employer, the Respondent and TT. He and the CE team of 24 workers was the bone of contention between the sponsors. Each sponsor board would ask him to arrange the CE workers to do a variety of tasks, some of which were permitted work within the terms of the scheme which he undertook in the order that he received them, but some were not. As the two sponsors competed, the task lists became longer and the tasks fell further way from the work that the CE team were meant to be doing. There was a disconnect between what the Respondent wanted to be done on the ground and how the DSP wanted the workers to be trained. The manner that the Respondent had treated him in summer of 2019 where DSP told them that there was insufficient notice to not renew his contract, or in 2020 when they advertised his job on Facebook without following procedures and without sanction of DSP and DSP then forced the Respondent to take the advert down.  The Respondent just did their own thing and disregarded the rules.

The CE scheme workers were the Complainant’s responsibility. The purpose of the CE scheme is to train long term unemployed people with skills that they can them use to find employment. The training lasts for one year.

The Complainant’s primary role was to train the workers and to do work within the community but over time that became more about protecting the workers from sponsors who should have known better than to ask the workers to do tasks that the scheme was not permitted or insured to take on. The Respondent - PG and SB – regarded him and the CE workers as if they were Respondent employees only and not employees whose priority was to be upskilled and not simply to do whatever work the Respondent asked to be done, whether they were insured or not, whether it was safe or not, whether they were trespassing on private property or not.

An important aspect of the Complainant’s role when training the CE workers was to ensure that they understood the limits of their work. He needed to teach them about health and safety, work that is insured, that does not trespass, observing height and other safety restrictions. This was his responsibility to instruct them on. The Respondent appeared to not care about these matters and thought that he should agree to instruct the workers to do whatever they were asked. He was constantly having to protect the workers from doing work that was inherently unsafe and for which they were not insured. As the CE Scheme Supervisor, he refused to be held liable if one of the workers was injured doing work that they should not have been doing. That is why he asked for instructions to be put in writing.

The CE workers were his priority. Providing them with training. Teaching them construction and other skills and teaching them to not exposing themselves to risks. He was obliged to lead by example. The Respondent management always misunderstood that.

The year of training was broken into quarters. The first quarter was to identify the workers and assess their level of training, the second and third was to do training to allow the workers to prepare and qualify at FETAC level, the fourth was to prepare either an exit or a reengagement plan. The training was managed by him. His role was to prepare the workers to enter employment.

That was why he asked for the jobs to be written down because if he was concerned that there was no insurance cover for a particular job, then he wanted an indemnity from the Respondent. If they thought that is unreasonable, why not just give him the indemnity. He was treated as a troublemaker, when he was merely keeping the workers within the remit of what was allowed.

In terms of the non-renewal of his contract in 2020. He was not given the draft contract until after the meeting on Wednesday 15.7.2020. He received the draft contract on the Thursday and was told that he had until close of business on Friday to sign it. The 2020 draft contract was very different in terms of duties to what he had been doing until then. There was no discussion of these new duties at the 15 July meeting. Never did he have to agree to “ensure the provision of an efficient financial and accounting system in line with CE corporate governance requirements as directed by Forbairt na Rossann” Financials and accounts were never part of job specification until then. There were other aspects to the contract that were new also. It was not fair to not warn him of the new entries, give him less than two days to consider it, not even warn him that if he did not sign it that his contract would not be renewed and then send him a letter on 20 July advising him that because he had not signed the contract and because he frustrated the work of the Respondent that his position was gone. 

In terms of the work performance issues that were relied on by the Respondent to maintain that he had contributed to his dismissal he said as follows:

Health and safety were an important consideration for him.

The CE workers were not trained to do roadside work. They needed to receive Guarding, Signage and Lighting (GSL) training to do this work. The Respondent neither provided the equipment nor the training. At one point when he was asked to fix a graveyard wall beside a road and he asked for roadside signage and lighting, because it was dark, he was told to park a car in front of the work area and turn on the headlights to warn drivers. This was the type of carry on that went on. He accepts that he refused to do this work and that the parish priest paid a private contractor to do it.

He raised GSL training several times at Respondent meeting. He accepts that a course was suggested but at that time he was unable to do the course on a Wednesday. No Respondent member raised the course with him after that. No roadside work was done by the CE scheme after that.

In terms of working at a height, he understood that the CE workers were restricted from working above 3 metres in height. It was an issue of insurance. He always replied to height work that if it is above 3 metres, the CE workers cannot do this. He was surprised at the amount of time he had to explain that. When he was asked about taking down bunting which was more than 3 metres, as far as he knew, the CE workers were not insured, and he said that. After that the GAA club and the fire service took down the bunting.

In June 2017 he was asked about fixing guttering on the LEB and the Ionad. He was afraid of the state of disrepair of the roof and whether it was safe. I asked for it to be written down, not to be awkward but because he wanted instructions in writing to say that the Respondent would cover him if he was injured. Eventually he did the gutters himself. He was not prepared to allow the CE workers to do this. The LEB is a seriously high building. In terms of the roof repairs, he suggested that the Respondent rent a scaffold, but it would have cost €1500 and PG told him to forget about it. They paid someone to fix it.

In 2017 he told TT that the CE workers were not permitted to go up ladders unless they were 3 metres or less. TT did not like that and discussed it with the Respondent .

TT and the Respondent were meant to agree their work lists, so that one did not get more work done than the other. TT kept giving him lists even though the Respondent had decided that TT needed to send their work list via the Respondent. The chair of TT asked him to do work on private property which he objected to. SB also asked him to work on fields outside the town but that was on private land also. He was not going to be held liable for CE workers trespassing on private land.

In terms of the LEB stairs, he did not regard the stairs as being safe for the CE workers to use on a regular basis.  He denies trying to frustrate the Respondent obtaining rental funds. This was about safety. The CE worker’s equipment was stored in the LEB. The stairs were not like modern stairs, they were narrow. In 2017 a man on the scheme fell on those stairs. If a CE worker fell trying to lift furniture or equipment using the stairs, he would be liable for that. The Respondent would not have supported him then.

When he met PG and SB at the LEB he suggested other alternatives. These were to 1. Rent the LEB and keep the CE workers in the annex (for this plan only a small kitchen would need to be built because there was a toilet in the annex already.) To this suggestion, neither SB nor PG got back to him. 2. Rent the LEB and the Respondent rent a different community building outside Dungloe, to which PG said that there was no money to rent a building. 3. - which was his, SB and PG’s idea – to use the basement of the LEB. For this he was asked to drill a hole in the cellar to see if there was space. For this, the Complainant asked PG for a road compressor (to break through the hard concrete) but one was never supplied, so that ended that idea.

In terms of the use of the Annex plan, he raised this at the building and during a Respondent meeting. PG and SB were both there. SB said that he would look into it, and he never heard anything more about it. This could have been around March/April in 2019.

The Christmas lights issue in November 2018 was very damaging. The Complainant said he was unable to do the lights again because of an injury. This was either not believed or annoyed the Respondent because the next thing the Complainant heard was that this was going to be published in the Parish newsletter. He went to the parish priest and sure enough, the notice stated that he personally would not be doing the Christmas lights that year. It implied that it was his fault and did not explain that he was unable to do it. The Complainant discussed it with the priest and told him that he would need to get advice. The priest agreed that the notice would be removed, from all the newsletters, which it was. After that the Respondent members got annoyed that the reputation of the Respondent was undermined by the notices being cut out. But what about the notice blaming him? The Respondent did not seem to worry about that. He could not understand why the Respondent were acting like this. It was not his fault. He was injured and could not go up a ladder. A new committee was set up to do the Christmas lights after that so there was no ongoing issue about lights after 2019.

He was instructed to keep time sheets, particularly when TT was instructing him as well as the Respondent. He kept time sheets. He filled in the diary. He cannot explain where the time sheets or diary are now. They were kept in the LEB and he left them there with the work diary when his contract was not renewed. When there was a dispute about whose instructions should he favour, the Respondent or TT, he was instructed that TT would put their instructions in writing because the Respondent needed to sanction what work came within the scheme. So it is untrue to suggest that he was the only party requesting that his instructions be put in writing. When the GAA asked for work to be done, the Respondent also asked them to put it in writing. There were other local organisations too. His safety concerns for the CE team arose in relation to road works from September to March, in the dark evenings and when working at a height was requested. His condition was that he wanted evidence of Respondent approval.

In terms of workers leaving early, he denies that there was a practice of this. If it ever happened there was always a good reason for it. He asked at a Respondent meeting if there were disciplinary procedures to discipline the men for time keeping and while he was told the Respondent  would investigate it, no one got back to him.

In terms of the Covid guidelines, he was asked to inform the CE workers to sign a form three days before their return to work. He was given the forms on Friday and the men were supposed to return on the Monday. There were no 3 days between when he got the forms and when the workers were due to return them. PG told him, don’t worry we can just do it on the Monday and that was that.

When the Complainant arrived on the Monday, two of the CE workers were in the same car. The Complainant accepted that they should not have done that, but it is unfair to criticise him for that when he had told the men to social distance.

At the LEB at the start of Covid the men were allocated a role. The system was that the men would not share equipment and at the end of the week everything would be sanitised. Only the Complainant went inside the LEB and brought the equipment out. He did not accept that others went inside the building.  It was all Covid compliant. PG just did not want any of the men down at the LEB because he was worried that they would gather in groups, but everyone kept outside.

The Church of Ireland work was the type of work that the CE workers could learn a skill. Laying a ramp and laying footpaths. This was proper training. Experience that would get the men jobs later, and it was safe, not like fixing a graveyard wall beside a road with no guards, lights or signage.  He was told to ask the Church what they needed to be done. He accepts using his own digger, but that was to teach the workers how to use a digger. He didn’t consider how much the Church was contributing to the Respondent or if that they were doing too much work. That was up to the Respondent to make clear to him which they did not. When PG told him to stop the work, he stopped the work. The suggestion that he was working for payment on Respondent time is untrue.

In terms of the alleged bullying complaints against him, the Complainant was never made aware that the first man made any complaint against him. In terms of the second (German) worker a meeting took place at which he was accused of bullying. SB banged his fist on the table. After the meeting PG said that the matter had been completely wrongly handled.

Early summer of 2020 seemed to trigger something in the Respondent to get rid of him. The Respondent acted unilaterally and gave him notice that his contract would not be renewed again. SIPTU became involved on his behalf. There was no orchestrated campaign. He was being treated badly after years of service. He had local support. He did not orchestrate anything. The issue was about him getting some security of tenure in his job. In summer 2019 the Respondent unilaterally tried to not renew his contract, but DSP intervened. It was as if the Respondent just waited until a year passed and then they tried to do the same. It was not right.

The Respondent made a big deal about me asking things to be in writing but that was to protect him if anyone was injured doing something that they were asking the workers to do, that should not have been asked.

The Complainant gave evidence of loss.

He is seeking an award of two years’ salary, ie €80,340.

He gave evidence of his earnings from 2021 until 2024. There was no work in late 2020 to allow him to mitigate his loss. He looked for local work, but construction work was thin on the ground. He did some core sampling work for buildings affected by MICA and the odd construction job, but it was not because he did not make efforts to look for work. The records of his earnings were a handwritten list of jobs that he did.

The Complainant under cross-examination by Sean Boner, Solicitor, said as follows:

A Letterkenny based accountant prepared his accounts each tax year, but he accepted that did not bring them to the Adjudication hearing and was relying instead on a handwritten list of the jobs that he did and the income that he received.

When asked if he removed the work time sheets and diary when he left his employment, he said that he did not.

He identified three named contractors who he approached for work after he was dismissed but they had no work then.

He denied doing construction work on Owey Island in late summer of 2020. He said that he was out there helping a friend. He was not paid.

He has a small farm holding.

He is a fire station officer, but he did that while he was working for the Respondent too.

He denied being paid for the Church of Ireland graveyard work.

He denied being warned by the Respondent about the non-renewal of his contract after the graveyard issue, he said that he was warned not to do work again for the Church unless the work plan was sanctioned by the Respondent . The renewal of his contract was not discussed then.

During Covid he denied allowing the men into the LEB.

His concern about the stairs in the LEB was what the men would need to carry up a narrow and steep set of stairs. When asked did he accept that building regulations did not apply to an old building he said he objected to unsafe stairs being used for CE work.

He did not accept that he never told SB about his suggestion that the Annex be renovated for Scheme use, which would have allowed the LEB to not lose the tenant. He said that they discussed it at the LEB and again at a Respondent meeting. When asked why the minutes of the Respondent boards meeting make no mention of this suggestion, he said he did not know.

When asked about the bullying investigation meeting, he said he did not know about the first bullying complaint and did not know that a worker was left to work on his own in a graveyard. His recollection is that the worker worked alongside the team.  If he made a complaint that was never brought to his attention.

When asked to confirm that he apologised to the German worker after he made a bullying complaint against the Complainant, he said what he remembers was that SB banged his fist on the desk and PG said later that the matter was badly handled. He accepted that the worker moved to a CE scheme in a different area later.

When asked did he stage a sit in protest with some friends about 3 weeks after his was dismissed, he said he was protesting the way that he had been dismissed and what was owed to him.

When asked was the financial duties that were in the 2020 contract not also in the 2019 contract, he said that they would have been willing to sign the 2018 contract but nothing to do with financial accountability because he never had that duty before. When told that another employee did that work, he said that no one ever said, “sign this but you won’t actually have to do this.” It felt that the Respondent were giving him a contract that they knew that he could not agree to.

When it was put to him that the reason that he would not sign the contract was because of SIPTU’s red line which was a national issue for them;  CIDs for CE Supervisors and  it was either that or nothing but the Respondent  had no authority to give him a CID because he was statutorily exempt from getting a CID, the Complainant said that he believed he was entitled to an indefinite contract.

In terms of the Respondent’s defence that his conduct contributed to his dismissal he said:

Health and safety are a major problem with CE participants. If he did not train them in an awareness of this, who would?

In terms of roadside work he said that TT suggested that the CE team do roadside work without signage, guards and lighting, even though members of their Respondent had done road side safety courses. The objection started to TT and continued then when the Respondent  started asking for this work to be done.

When it was put to him that the never suggested LEB renovation works either to SB or to PG, he said that he did and that no one from the Respondent got back to him so he left it then.

When asked why he objected to clearing the fields outside the town, even when SB got leases from the field owners which gave permission to the CE scheme workers to enter the field, the Complainant disagreed.

When asked why he refused to move portoloos from the shore he said that they were there for the festival, and it was up to the County Council to remove them. He said that removing them was dealing with raw sewage and he did not think that this was a job for the CE scheme. When asked why he did not explain this to PG at the time or explain that he considered it to be the Councils job and it is not for the CE scheme, he did not answer.  When asked why he was so contrary and obstinate, staying silent, refusing to do the work without explaining why and that this was a pattern, he disagreed.

When it was put to him that his evidence was not credible. That the minutes do not reflect his evidence to the WRC he disagreed. When asked why the Respondent minutes don’t reflect his Annex suggestion, he said that he did not know but that he did say it both at the LEB and at a Respondent  meeting.

The Complainant’s representative made the following submissions:

In terms of section 7 (2) of the UDA the alleged contributory conduct which permits the WRC to reflect that in an award, must have contributed to the dismissal and an Employer is not permitted to trawl through years of alleged misconduct in 2016 or 2017 if the Respondent renewed his contract in 2018. So the attempt by the Respondent to raise alleged bullying complaints seven years prior to 2020 - which were not dealt with by any proper procedures – should be set aside as not being relevant to section 7(2).

In terms of alleged contribution in 2018-2019-2020 the Respondent did not use any of its own disciplinary procedures to investigate alleged misconduct of the Complainant. They could have but did not. Any misconduct that is cited in the dismissal letter list needs to be viewed through the prism of what were the subjective opinions of individual Respondent members rather than findings which followed a disciplinary process which applied fair procedures.

The reality is that the Respondent were under the mistaken belief that they could decide to not renew his contract. They tried to do that in 2019 but the DSP intervened. Then as SB conceded in his evidence, rather than use the proper procedures, they just ran down time until they could do it again at the end of the 2019 contract. But they were not legally entitled to do that. His 2015 contract does not comply with the waiver under section 2(2)(b) of the UDA. But the Respondent did not know this then. They thought that signing or not signing the 2020 contract was pivotal when it was not. He may not have been entitled to a CID under the 2003 PEFTWA but this is distinct from whether he had acquired rights under the UDA because he was not asked to and did not waive rights under the UDA. And the evidence is clear that no fair procedures were applied in terms of any alleged misconduct.

Additionally, the evidence of the Respondents (both PG and SB) was that if he had signed the 2020 they would have kept him on. His alleged misconduct could not have been that bad given those concessions were made.

End of Complainant submission

Overview

Even though the conflict between the Complainant and Respondent was significant, commencing in 2018, increasing over time and unhappily, in 2020, spreading into the local community, what is most notable about this investigation is the level of commitment to local community that came through in the evidence. Many communities have a collective desire to improve their community, but most do not organise themselves to action that desire. The efforts made by all those involved, both parties, enhanced the local community aesthetically, culturally, and economically. Tourism and development opportunities were created by their efforts.

The evidence of individual action and dedicated effort to maintain and enhance the Dungloe area and its confines was impressive and remarkable. This should not be overlooked.

CE employment contracts

In most employment relationships, there is an accepted dynamic is that an employer pays the employee’s wages, and the employee is obliged to follow the employer’s instructions.  This is reflected in the control test or subordination test that the domestic Courts and CJEU have used to determine if a person is employed or not.  

But that assumption does not apply to CE contracts in which the DSP pays the wages, but instructions are given by the Sponsor, in this case the Respondent. This disconnect of the right to instruct but not pay, blurs where accountability for the employment lies. This lack of clarity has given rise to several WRC decisions and in turn political promises for change.

This was a feature in this case. In 2019 when the Respondent thought that they could end the Complainant’s employment contract, the DSP instructed them that they could not.  Again in 2020 when the Respondent again sought to advertise the CE Supervisor post, the DSP instructed them to withdraw the advert.

But as section 3 of the CE Manual states:

“The Sponsor organisation is the legal employer for the CE Supervisor and the participants. As the employer the Sponsor should be fully aware of all relevant legislation and be committed to fully implementing, its spirit and letter at all times.”

While the Sponsor had all the liabilities to employ the Supervisor they could not, without DSP and trade union agreement, end the Supervisor’s employment.

This is an unusual feature of this employment contract that seems particular to the CE Scheme.

What flows from this disconnect in this investigation, were differing priorities between the Sponsor and the Supervisor.  The Sponsor’s priority is for work within the community to be completed. The Supervisor’s priority is the training and safety of CE scheme participants, to allow long term unemployed to enter or re-enter the work force. These priorities do not always dovetail.

The additional challenge from the Sponsor perspective is that it is a voluntary Respondent made up of individuals some of whom have full-time jobs. There are a few dynamics that need to be managed by the Respondent - the responsibility of being an employer, the legalities connected to that, the liability for the training, health and safety of the participants, the pressure to get community work completed and managing what are at times competing demands of community groups and other sponsor bodies.

I have little doubt that the lack of clarity in terms of the powers of the employer, contributed to the problems that occurred and led to the Respondent’s confusion in 2019 and again in 2020 about whether they could end the Complainants employment or not. This ongoing lack of clarity about roles, responsibilities and liabilities did not help those who administered the scheme on the ground.

And to add a final dynamic into the mix, this dispute reached a tipping point in June 2020 when the Community was being impacted by the Covid pandemic. While problems certainly existed already, the combination of Covid related factors - fear, isolation, social distancing rules being observed by some and not by others, people within the community, getting sick and dying, heightened emotions, poor communication, and black and white thinking - all contributed to heightened tension at the end of this employment relationship.

If ever there was a situation that would have benefited from mediation, it was this.

Protection of Employees (Fixed Term Work) Act 2003 (PEFTWA)

PEFTWA is the legislation that sets out how and when a contract of Indefinite Duration (CID) may be acquired by a fixed term worker.

CE Supervisors (and participants of CE schemes) are expressly excluded from the section 9 provisions of the PEFTWA. This is because they are employees “with a contract of employment which has been concluded within the framework of a specific public or publicly supported training, integration or vocational retraining programme” (section 2 of PEFTWA.)

CE Supervisors are employees of the community or charity private company with whom they have signed a contract of employment.

The Complainant does not have an entitlement to a CID, given that it is only via PEFTWA that a CID may be created.

The preliminary application made by the Respondent, that the WRC has no jurisdiction, was withdrawn on Day 2 because the Respondent conceded that a claim under the UDA is not defeated because a CE employee is precluded from asserting a right to a CID under the PEFTWA.

The reason that I am setting out the applicable provisions of PEFTWA above is because despite this withdrawal of the application, the defence maintained by the Respondent throughout the Adjudication that the Respondent was entitled to end the Complainant’s contract in July 2020 based on various forms of misconduct even though no investigation or procedures to allow a finding of misconduct was put forward. 

Unfair Dismissals Act 1977-1993 [UDA]

The dismissal of an employee who has more than one year of continuous employment is an unfair dismissal unless they are otherwise excluded from the UDA.

Section 2 (2) (b) of the UDA provides for an exclusion where the employment is “for a fixed term… and the dismissal consists only of the expiry of the term without it being renewed under the contract …and the contract is in writing and was signed by or on behalf of the employer and employee and provides that the Act [UDA] shall not apply to a dismissal consisting only of the expiry of the fixed term…”

It is clear from section 2 (2) (b) that while an employee under a fixed term contract may be excluded from UDA protection this can only be if the three criteria (in writing, signed by both parties and an express waiver) are contained within the contract of employment. If any of the section 2(2)(b) criteria are not within the contract, then the employee is not excluded from the protected provisions of the UDA and the employee enjoys full UDA protections.

Simons J. in the High Court case of The Respondent  of Management of Malahide Community School v. Conalty  [2019] IEHC 486 held that if an employee has acquired rights under the UDA, these cannot be lost by a subsequent contract that contains a section 2 (2) b exclusion because any attempt to retrospectively deprive an employee of rights already been acquired under the UDA would be void because of the anti-avoidance wording in section 13 of the UDA, unless the Employer can prove that the Employee was legally advised and fully informed that they were losing their UDA rights, prior to signing a new contract containing a section 2 (2) b clause. 

At paragraph 62 of his judgment, Simons J. held that an exclusion under section 2(2)(b) is akin to an unequivocal waiver; “the contract must record the disapplication of the Unfair Dismissals Act, and the employee’s agreement to same must be confirmed by their signing of the written agreement. The exception is not therefore automatic but necessitates an informed decision by the employee.”

I have not been provided with any employment contracts for the period 2009 and 2014.

I have been provided with written contracts for 2015, 2017 and 2018, all which were signed by both parties, and I have also been provided with contracts for 2019 and 2020, which the Complainant did not sign.

None of the contracts from 2015 – 2019 contained a waiver of rights in accordance with section 2(2)b of the UDA and without such a waiver he cannot be excluded from the UDA protective provisions.  Just because he does not have a right to a CID under PEFTWA, does not mean that he is excluded from UDA. An exclusion in one Act cannot be imported into another.

The Respondent has not sought to contend otherwise and for this reason I am satisfied that, at the time of his dismissal on 20 July 2020, moreover, even after one year of service, ie from 2010 on, the Complainant enjoyed the protections of the UDA.

The fact that the 2015 contracts refer to the contract being one of indeterminate duration does not alter this. The fact that from 2018 on the contracts refer to the contract as being only for one year, also does not alter this, because for a waiver to be operative, section 2 (2) b requires the contract to specifically state that the UDA “shall not apply to a dismissal consisting only the expiry (of a fixed term)”

The Presumption of Unfair Dismissal

Under the UDA the dismissal of the Complainant on the expiry of his fixed term in July 2020 is presumed to be unfair and it falls to the Respondent to prove otherwise.

All iterations of the Complainant’s contracts contained a clause stating that a disciplinary process needs to be followed prior to dismissal. The usual fair procedures (full investigation, right to be represented right to state his case etc.) will apply. The CE manual, which applies to all CE workers, including the Supervisors, also sets out a disciplinary process. The UDA also requires fair procedures to be observed, so whether based in contract or in legislation the Complainant was entitled to fair procedures prior to being dismissed.

But this did not happen. From the evidence of Mr. Boner, the Respondent believed that they were within their rights to simply not renew the Complainant’s contract on the renewal date. SB explained that the reason why the disciplinary processes in the contract were not applied to the Complainant was because they believed they did not need to do this if it was a case of non-renewal of his contract on the renewal date and that was only if he was being dismissed mid-contract that disciplinary processes were required. When the Respondent decided in 2019 to advertise the post and were prevented from doing so by DSP because of insufficient notice, SB’s evidence was that the Respondent decided then that unless he changed his behaviour, they would allow his contract to run and see if he improved in 2019-2020 and if he did not, they could give him more notice and then not renew his contract.

It appears that Respondent acted as they did in the erroneous belief, that because he did not have a CID, and because the contract stated it was indeterminate and for one year only, that this allowed them to not renew it whenever they decided.  I do not think the fact that that the Complainant may have already acquired rights under the UDA was ever contemplated by the Respondent.

I find it difficult to understand why the CE Supervisor contract would not contain a provision to ensure compliance with section 2 (2) b of the UDA. Given the prescriptive wording of section 2(2)b I would have thought that such a clause should have been standard. And if it had, the Respondent could indeed have decided not to renew his contract, no matter the number of fixed term contracts. I do not know with whom the responsibility for the wording of the contract lies, but I have no reason to disbelieve the evidence of the Respondent that the wording of CE Supervisor contract was provided by DSP which was updated each year.

Essentially because there was no waiver, the Respondent became caught between two stools – the Complainant had no right to a CID (because of the PEFTWA) but he was not excluded from having rights under the UDA. The only way that he could have been excluded from the UDA was if he had signed a section 2(2)(b) waiver when he started working. Each Act is construed discretely. No witness from DSP was called by the Respondent who might have been able to address why the contract did not contain a UDA waiver or if it that considered to be unnecessary, why that was so. I can only proceed based on the evidence put before me.  

The upshot of this is that in July 2020 the Complainant had rights under the UDA and the non-renewal of his contract constituted an unfair dismissal under the UDA because it was based on alleged poor performance misconduct but there was no investigation into his alleged poor performance which renders his dismissal to be unfair. Even at the meeting 15 July 2020, he was not warned (this is not disputed) and I do not accept the Respondent’s submission that a warning could be implied from the circumstances.

On the above grounds I am satisfied that the Complainant’s dismissal on 20 July 2020 was unfair.

The remaining issues to be decided is the level of award that should be made.

For this I need to consider; if the Complainant contributed to his dismissal; if he has adequately proven his claim for loss of earnings and if he has proven that he made attempts to mitigate his loss.

Contribution to Dismissal

I will first deal with the Complainant’s submission - that to contribute to a dismissal the conduct is required to be proximate to the dismissal decision. The evidence of the Respondent was that the Complainant’s poor performance over the period 2018-2020 contributed to their decision to not renew his contract and that they had been permitted this would have occurred in 2019 if the DSP had not intervened. The Respondents also point to his failure to sign the contract in 2019 and 2020, contending that had he signed his contract in 2020, that his contract would have been renewed. I am not persuaded that this is the case. Based on the evidence of PG and SB I am satisfied that the employment relationship was nearly over in the summer of 2019 but due to the DSP intervention his employment limped on for a further year. I am satisfied that the Covid breaches were the death knell to what was already a nearly broken relationship. In terms of contribution therefore while I would be wary of treating work issues that arose prior to 2018 as being contributory (because the Respondent renewed his contract in 2018) what occurred in the period 2018-2020 period could be said to have contributed to the decision to dismiss him.

Refusing to accept instruction and requiring instructions to be in writing.

The Complainant’s evidence is that he said that the reason he needed instructions in writing was because the Respondent was failing to protect the CE workers health and safety, however there is no evidence that this explanation for refusing to work or requesting instructions in writing was adequately communicated to the Respondent by him.

The work that the Complainant was reluctant to do/ wanted instructions in writing, fell into three headings, working at height: roadside work and work on private land.

The issue of working at a height arose in respect of work to the roof and guttering of the Ionad/ LEB. The Complainant say that he refused to allow the CE workers to work at a height because they were not insured. He said that the reason he asked for instructions in writing was because he would be liable if one of the CE workers were injured.

Due to the lack of any documentary evidence provided to me, I am unable to form a view on the height at which a CE worker is insured to work. I have not been provided sight of any insurance documentation or DSP advice on this issue by either party. I am unable to find that for example working at a height, more than 3 metres, either was, or was not permitted to be done by CE participants.

But more importantly the Complainant did not give evidence that he raised this insurance issue with the Respondent members at the Respondent  meetings.  The Respondent meeting minutes do not show that the Complainant ever requested a Respondent  discussion on the insurance policy that applied to CE work.  It is not as if there was not an opportunity to do so. Working at height was discussed, roadside work was discussed, trespassing on private land was discussed, and the minutes record that he refused to do the work on health and safety grounds, but do not record that this was because he had insurance concerns.

I am satisfied that this issue of insurance was never properly addressed by the Complainant and that the Complainant did not adequately bring his concerns to the Respondent or explain that this was why he asked for instructions to be in writing.

He did explain this during the Adjudication hearing, but I do not accept that this was made clear prior to then. The Respondent just assumed that he was being contrary by refusing to do work. A way to disabuse them of that would have been for him to address the issue at a Respondent meeting at which a recorded discussion could have taken place looking at the actual insurance policy and if necessary, obtain DSP advice about what work was permitted/insured and what was not.

The Complainant appeared instead to talk around the issue, telling members of the Respondent that he refused to do certain work but not properly explaining why. I am satisfied that this passivity on his part, contributed to the Respondent becoming frustrated by his refusal to accept instructions. Their view, that he was being non-cooperative, as opposed to protecting the workers, was not clarified by him.

But in respect of roadside training and the work on private lands I have less sympathy for the Complainant. His evidence is that roadside work training needed to be provided and was not. Roadside training was offered to him at a Respondent meeting, but he said that he was unable to do it because of other commitments that he had on Wednesdays and that issue was then never revisited by him. Given that this occurred because of his unavailability he was under an onus to advise when he would be able to do the course. I do not think that it was acceptable that he continued to complain about the lack of training for roadside work and refusing to permit the work to be done but declined the course and thereafter was not proactive about doing the course that complaints was not given to him.

I am satisfied that this was viewed negatively by the Respondent and with good reason. I am satisfied that this conduct contributed to the decision to try to dismiss him in 2019 and to dismiss him in 2020

In respect of work on private property, after Mr. Boner obtained leases from the owners of the lands outside the town, there was no longer a basis for the Complainant to contend that the CE workers were not permitted to enter private land. The leases were the permission to enter the land and yet still he refused to do the work.

I consider that the actions of the Complainant, in both refusing to work and or requiring instructions in writing without explaining why, contributed to his dismissal. 

Failure to fill in diary

Having asked for instructions in writing and the Respondent having decided that it was in their interests, given that other sponsor bodies wanted work to be done which the Respondent needed to sanction, a diary system was devised. PG’s evidence that the diary was not completed by the Complainant was not countered. I am satisfied that this led to difficulties for the Respondent because the Chair was unable to know what work was done and what was not.

I consider that this added to other non-cooperative conduct which contributed to the Complainant’s dismissal.

Tidy Towns

I am satisfied that the refusal by the Complainant to cooperate with Tidy Towns in 2017 arose mainly due to a personal difference between him and a member of the TT Board. But as the Complainant’s contract was renewed after this, I am not satisfied that these actions contributed to his dismissal.  

LEB: Loss of Tenant

I do not find the Complainant’s explanation for refusing to do the work on the LEB to be credible. Once the DSP were satisfied that the stairs were safe for use and certainly the photographs that were provided to me, do not show that there was anything obviously unsafe with the stairs, the Complainant should have agreed that the CE workers would move upstairs. This would have allowed the scheme to raise a rent for the LEB downstairs. His suggestion that Annex be used to allow a tenant to move in, but prevent the workers needing to move upstairs, is not recorded in any Respondent  meeting minutes. I am not satisfied that the Complainant raised this suggestion either at a Respondent level or to PG and SB on site.  

I consider that his failure to cooperate with the Respondent  on this issue was unreasonable and contributed to his dismissal. 

Christmas Lights

The event that triggered the deterioration in relations appears to be the Christmas lights issue in November 2018. I consider this to have been badly handled by the Respondent. I accept that there may have been frustration with the Complainant not cooperating, however posting this in the 18 November 2018 parish newsletter naming the Complainant personally without explaining that it was due to an injury, implied that he was to blame, and this damaged his name in the local community.  This should not have been done and then criticising the Complainant for arranging for the harmful post to be removed was unfair. The notice should not have been posted by the Respondent in the first place.

I do not consider that this action contributed to his dismissal. 

Portaloos

I consider that the attitude taken by the Complainant with respect to the removal of portaloos from the shore front was uncooperative and following his evidence at the Adjudication hearing I am still unclear why he refused to move them. This was a reasonable instruction, no health and safety issue arose, but the Complainant refused to move them because he believed that it was the responsibility of the County Council, although no evidence for why he believed this was provided. There was no argument of displacement made by the Complainant on this issue. I consider that this was a failure to follow reasonable instructions.

I consider that this contributed to his dismissal.  

Bullying

I am not satisfied that the allegations of bullying were ever properly investigated by the Respondent, and I am also satisfied that no findings that the Complainant had bullied anyone were made by the Respondent.

I do not consider that this contributed to his dismissal. 

Church of Ireland Graveyard Works

I am satisfied that the work done on the Church of Ireland graveyard exceeded the work that was sanctioned by the Respondent. However, the Complainant was instructed to ask the Church what work was needed. A design plan was given to him, and he proceeded with the CE workers to do works. There is absolutely no evidence to support PG’s opinion that the Complainant received payment for this work. In the same way as there is no evidence to support his view that the Complainant was being paid to go to Owey Island following his dismissal, and I reject these opinions as having no evidential basis.

I do not consider that this contributed to his dismissal. 

Covid Breaches

In respect of the Complainants non-adherence to Covid guidelines, which appears was the tipping point to end his employment, I am satisfied that the Complainant failed to prove that he adequately addressed breached of Covid guidelines by the CE workers. In the same way as he was correctly concerned for their health and safety in other respects, he should have been more vigilant about addressing health and safety Covid breaches by the participants. As already noted, this was a community that was being directly impacted at that time. A brother of the Respondent died. The Complainant should have taken this duty to supervise the workers more seriously that he did. Permitting the men to travel in one car should have been dealt with by him. Warnings could have been given by him and he did not give evidence that this ever occurred.

I am satisfied that this action significantly contributed to his dismissal.

Summary re the Complainant’s actions which contributed to his dismissal

In summary, I am satisfied that while the Complainant did excellent work over many years which upskilled CE workers and benefited his local community, having already found that he was unfairly dismissed, I am satisfied that the Complainant operated as he chose to, and this was not always cooperative. He refused to follow some instructions and if he considered instructions to be unreasonable, he did not properly bring his concerns to the Respondent in an appropriate way.

I am satisfied applying section 7(2) (a) of the UDA that the Complainant’s conduct contributed to his dismissal overall by 50% and his award will in turn reflect that.

Financial Loss arising from the Dismissal.

I found this investigation to be high on allegation and suspicion and not so high on evidence. None more so than in respect of the Complainant’s claim for loss of earnings, which is the statutory ceiling amount of two years’ salary ie €80,340.00

While the Complainant accepts that he has an accountant who completes his income tax returns each year, inexplicably, audited accounts were not provided to this investigation to evidence his loss of earnings claim. Instead, what was provided were a few handwritten A4 sheets listing the paid work that he did since 2020 and payment that he received for each. The only other evidence is a series of invoices that he raised for mica testing work that he did between 2021-2023. I find this evidence to be wholly inadequate for the purpose of proving loss.

Likewise, I find the Complainant attempts to mitigate his loss to be evidentially insufficient. I accept that there may have been less work available during late 2020 and early 2021 but the more time passes from the dismissal date, as the demand for construction workers increases, the less likely it is that his losses were caused by his dismissal. 

He also accepted under cross examination that he was unable to work for a short period in June 2022 and since 2024 he also has greater responsibility in respect of the care of his elderly mother, both factors impacted his ability to mitigate his loss at these times. I consider too that he has a small farm holding and that he worked as a retained firefighter during this time.

I satisfied that the Respondent’s suggestion that the Complainant received payment for doing work on Owey Island after his dismissal, is conjecture and has not been evidenced in any way. Likewise, their suggestion that he was paid for the CofI graveyard work.  I make no account for these unproven suggestions when assessing the appropriate level of award.

Remedy

I apply section 7 (1) c(iii) of the UDA to assess compensation to reflect the Complainant’s proven financial loss that was attributable to the dismissal, and which is just and equitable.  I award the Complainant 20 weeks (€15450) which I divide by two to reflect the 50% contribution finding.

Conclusion

I find this complaint to be well founded. I award the Complainant €7725.00.

The Complainant was unfairly dismissed. I award the Complainant €7725.00.

Unfair Dismissal