Complainant

Respondent

Parties

Kyle  Madden

Duntech Electrical Solutions Limited

Representatives

Mr Brian Nolan of Connect Trade Union

  Mr Shane Dunne

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-00059320-001

10/10/2023

The Complainant began working for the Respondent as an apprentice electrician on the 25th of October 2021.

On the 9th of August 2023 the Complainant was sent home from the site he was working due to a direction from the health and safety officer. He was later told not to return to the site. 

The Complainant was represented by his Union official, Mr Brian Nolan, who made oral and written submissions on his behalf.

The Complainant was dismissed on the 11th of August when he was told not to return to the site where he worked and that there was no site for him to go to. At that point he was dismissed. He was afforded no fair process nor did he know why he was dismissed.

A week later he texted Mr Dunne looking for a letter to confirm the position with the Department of Social Protection. He was not given this though Mr Dunne assured him that he was going to send the letter.

The Respondent was represented by Mr Shane Dunne its owner. He gave evidence under affirmation.

He had been receiving poor feedback about the Complainant and his attitude from his foreman and health and safety officer on site. All three of them were his employees rather than the employees of the contractor over the entire site.

On the 11th of August he was called by both the health and safety officer and foreman who told him that the Complainant had been taken off the site for two days, formally, but that nether of them wanted him back on site.

He was waiting to speak to the Complainant about this and never dismissed him.

Mr Dunne had indicated that the Respondent could produce evidence of underlying issues with the Complainant by way of written records and witnesses. I indicated that any evidence should be available for the date of hearing but if he wanted to request an adjournment I would consider that request. Mr Dunne declined to request and adjournment on the basis that he wanted the matter over with.

As such I have no evidence of any underlying issues with the Complainant’s attitude at work.

The Respondent’s position that the Complainant was not dismissed is not tenable. The Complainant was sent home from work and told that he could not go back and that there was no alternative work available for him and his pay stopped.

A week later when he asked for a letter confirming he was dismissed Mr Dunne responded “Apologies Kyle I’ll get over later I’m away on hols at them minute (sic)”

His evidence was that he wanted to engage with the Complainant further when he got back from leave but does not say that he tried to do this or what he believed that engagement would achieve. He never suggested the Complainant was on a period of unpaid lay-off or suspension.

I determine that the Complainant was dismissed on the 11th of August 2023.

It is common case that the Complainant has the requisite service to be covered by the protections provided under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal. In the circumstances of this case, the Respondent disputes that there was a dismissal and, as such, has put forward no grounds justifying the dismissal.

If the Respondent was arguing that this was a legitimate dismissal on the basis of misconduct the  decision of the Labour Court in Pottle Pig Farm and Panasov (UD/17/24) would still be relevant. In that case the Court came to the conclusion that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.

In this case the Respondent appeared to rely on second hand accounts of the Complainant’s conduct. These were not put to the Complainant and the Complainant was not asked for any response or his own evidence. In the circumstances his complaint for unfair dismissal must succeed.

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement since he has secured alternative employment.

As such I will limit considering redress to Section 7.1.C, that is financial loss.

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

The Complainant submits that he was out of work for 10 weeks and tried to gain employment throughout that period. He provided some evidence of his attempts to find a suitable apprenticeship role over that period and provided all email records he has. But much of the jobs searching was pursued through social media.

His loss was €6290.70 and I am satisfied that such an award would be just and equitable having regard to all the circumstances.

I find the complaint well founded and direct the Respondent to pay the Complainant €6290.70.