Complainant

Respondent

Parties

Brendan  Burke

Bretland Contracting Ltd. Bretland Construction

Representatives

Nicola Murphy                                        Peninsula Business Services Ireland

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-00060796-001

02/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060796-002

02/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060796-004

02/01/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statements or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 2nd of January 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case. The Complainant made an Affirmation. A witness also spoke in support of the Complainant’s case.

I was provided with a comprehensive submission dated the 11th of June 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant and his witness was challenged as appropriate by the Respondent/by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed. The Complainant also makes the case of unlawful deductions having been made from his remuneration.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. A number of witnesses in senior Management were present to give evidence as required. The Respondent provided me with a written submission dated the 7th of June 2024. I have additionally heard from a number of witnesses for the Respondent including the Respondent himself.

No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.

The Respondent rejects that there has been an Unfair Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing.  The Complainant worked as a Senior Project Manager with the Respondent company having commenced his employment in or around June of 2022. I have seen a letter of offer and a Statement of core terms and conditions in this regard. The Respondent company is in the construction industry and delivers essential services across a range of commercial and residential sites. The Company has existed since 1999 and seeks to provide the highest level of professionalism and workmanship. The Respondent is very proud of its client base and its reputation which it asserts were both put in jeopardy by the Complainant herein.

There is something of a pre-history to the events surrounding the actual dismissal. I heard evidence from the Deputy Managing Director CY who started in this workplace a little after the Complainant. CY described a number of incidents in the course of 2023 that gave him some cause to be concerned about the Complainant’s manner and the approach adopted by the Complainant when issues arose. This witness says he reprimanded the Complainant, and further asserts that these reprimands were tantamount to verbal warnings. However, there is no evidence of Verbal warnings being noted on the Complainants file, and the Complainant is adamant that whatever conversations may or may not have happened in the past, there was no disciplinary history, and no sanction ever imposed. The parties were at variance on this and pretty much every other matter of fact in this case.

The one unavoidable fact that I can glean from the earlier incidents was the Complainant’s propensity for airing his issues through the medium of the email drop. I note that on each of the following dates - the 30th of May 2023 and the 19th of July 2023 - the Complainant sent out emails which in tone seemed to come from a place of anger. The emails contained observations made by him that were fired out in email format to a selection of people - most of whom should not be privy to the content of the email.

The first email on May 30th concerned an allegation that the complainant and his colleagues had been rude and objectionable in the course of a presentation made by a client of the Respondent company. I have no need to get into the rights and wrongs of the allegation, I am just concerning myself with the content and tone of the email and the fact that it was sent to five people in the organisation. In this email the Complainant states:

“Folks,

You Can take me off this project. I have no intention of putting up with this rubbish after sitting through a 4-hour induction where we were treated like children and does not set a good precedent for a two-year project.

Sorry but I’m out of this one.”

The Complainant could see nothing wrong with this email. He did not see it as combative or abrupt. He did not agree that addressing Management in such an offhand way in front of subordinates was problematic. He did not recognise that an email of complaint sent to his line Manager may conceivably strike such a tone, but that including a further four people most of whom are your equals or subordinates might be seen as a challenge to management. The complainant explained in evidence that anybody who had sight of the email was involved in some way and therefore should have sight of it.

The second email is dated the 19th of July 2023 and amongst other things, he stated:

“Firstly, Amber and all Bretland Staff have a right to be treated with dignity. The level of verbal abuse dished out to us on a regular basis is completely unacceptable and will not be tolerated. This needs to stop…..”

The particular difficulty with this email is that it is addressed to a Manager working on a Client’s premises and not to a co-worker. Other addressees are the complainant’s own manager, and a number of other co-Employees of the complainant. This email is, to my mind, out of order. I appreciate the Complainant might have felt that he was intervening on behalf of his own team but the only way to deal with a purported bully on a host site is through the appropriate level of management. This was a HR issue that should have been dealt with through the proper channels. It was not for the Complainant to get involved and make accusations and include an audience in the process. It undermined Management and more importantly it undermined the relationship between the Employer and the Client. To my mind, the Complainant was simply wrongheaded in this action.

I have been told by the Deputy Managing Director that he had made it clear to the Complainant that his actions were unacceptable, and whilst he understood these to amount to verbal warnings in the disciplinary sense, there is no record on file of verbal warnings having been given.

The Complainant says he had received no challenge and there was at the time no suggestion that he had done anything wrong.

I cannot reconcile the two accounts, and I feel the safest way to approach the issue that gave rise to the parting of the ways for these two parties by way of the termination of the employment is to look at it in isolation and not as the culmination of the few events already outlined.

On November 14th 2023, the Complainant brought things to a new level by signing off on an email that he sent to 41 people most of whom were employees of the Respondent company but a couple of whom were also suppliers to the Respondent company.

To give context, I understand that a member of the Complainant’s Health and Safety team was let go during her probation period for poor performance. This lady did come in (remotely) and give evidence in support of the Complainant.  The termination was performed by a Mr. DB the Head of Safety, health, Environment and Equality. Mr. DB was a new recruit to the Company.  In reaction to the news of this lady being let go, the Complainant dropped the following email:

“Good man Darren, only six weeks to Xmas and she is pregnant. Well done, you’re doing a great job”

Setting aside the issue of terminating the employment of a pregnant employee, I find I agree with the Respondent’s assessment that this was an audacious move on the part of the Complainant. It was clearly designed to humiliate and disgrace the newly appointed head of Health and Safety before the entire staff. I have been told that the email was received with outrage by most of the senior staff. This is evidenced perhaps by the fact that within minutes of the email getting sent, the Complainant was told to be in the office for 2pm the next day. This was sent by CY who was giving most of the evidence for the Respondent. I am satisfied that the nexus between the email drop and the demand to get into the office should have signalled to the complainant that a reprimand was on the cards. To think otherwise was naïve on his part.

I heard the evidence on behalf of four witnesses representing the Respondent’s side in this matter. These included the “Darren” addressed in the email, the HR Manager, the Managing Director and the Line Manager/Deputy Managing Director. Of them, three had been present at the hearing that was conducted on November the 15th and to which the Complainant was summarily called after issuing this last email. Again, it is hard for me to reconcile the two versions of events. Each side flatly contradicts the other.

What I am satisfied is correct are the following facts:

Such was the level of outrage amongst Senior Management with the action taken by the Complainant, that they were unanimous in assessing this to have been an act of Gross Misconduct.

Rather than moving to the immediate Dismissal without any Notice, the Management determined that the Complainant could stay on in the employment. However, if he chose to remain there would be a sanction imposed on him and that would be that the complainant would have to take a demotion back to a role that he had not so long ago been promoted up from. Interestingly, this specific disciplinary sanction is allowed for in the Employee Handbook as follows:

“If you are in a supervisory or a managerial position then demotion to a lower status may be considered as an alternative to dismissal except in cases of gross misconduct”

Having made this decision in advance of the meeting the Deputy General manager prepared a letter to be handed to the Complainant on his arrival. This reads:

“Despite previous verbal warnings your actions have consistently demonstrated disregard for company hierarchy and protocols. Notably your recent conduct involving the dissemination of an email intended to publicly discredit and shame Mr. DB Head of SHEQ and by extension the Board of Directors is unacceptable. This is a clear violation of our company’s code of conduct and core values.

…Your failure to uphold these standards compromise not only your professional credibility but also the cohesive functioning of our team…

We have decided to demote you from the position of senior project Manager to project manager effective immediately…

Moreover as part of your corrective actions you are required to issues a formal written apology to Mr. DB . This apology is to be sent to all recipients of your original email by close of business today”.

This letter was given to the Complainant to read when he walked into the meeting room.

Beyond this there is little commonality in the evidence of the four members of management on the one hand and the Complainant on the other.

I suggested that calling the Complainant into a room with four members of Management had the optics of an ambush which was rejected by the Respondent. I asked the Respondent HR manager about allowing the complainant to bring a colleague with him. This was not done. I asked the HR Manager if the complainant knew this was a Disciplinary Meeting? She agreed he had not been formally notified of that fact. The assumption seems to have been that this was self-evident.

Things got out of hand at the meeting, and voices were raised. The evidence from the Respondent witnesses was that the Complainant did all the shouting, while they seemingly sat back in the manner of demurring choir boys. I find this hard to believe. The Respondent suggested that the Complainant eventually shouted something which was effectively a resignation and then stormed out of the room.

The complainant says he looked for 24 hours to consider his position and was told that if he didn’t sign the letter of apology then and there he would be fired. He refused and he was told by CY that he was fired.

All parties agree that the complainant was followed out of the room by three of the four Respondent witnesses who chased the Complainant through the open office, down the stairs and into the car park in what must have been a most unedifying display of chaos and mismanagement in this otherwise calm workplace. The complainant was stripped of his car keys, the jacket he was wearing and his phone and laptop. The employment was thereby terminated.

The Complainant says he was fired, and the Respondent says he resigned himself. Considering the presentation of both sides I find that the complainant was set up to fail. Whilst I do accept that the complainant’s actions amounted to a Disciplinary issue for his Employer, the manner in which that was communicated to him was inflammatory. Calling the Complainant into a room to be faced with four heads of Management was designed to be intimidatory and hostile. I cannot imagine anyone could have been as shocked by the Complainant’s reaction as they all professed to have been in front of me. The Complainant was provoked into reacting badly and therefore did react badly. So that whether the Complainant was fired or whether he resigned does not ultimately matter as the Respondents procedures were lacking and this therefore has amounted, by reason of the facts so found, to be an Unfair dismissal.

In assessing compensation, I must keep in mind a number of facts. Firstly, the Complainant’s own behaviour significantly contributed to this termination of his employment. Secondly, the Complainant has found alternative employment within two days of losing his job. The income drop between the old job and the new job is in the amount of €10,000.00 per annum for him.

However, I am satisfied that the Complainant is only entitled to a differential in circumstances where, had the employment not been abruptly terminated, the Complainant would have stayed in the workplace and been demoted in role and remuneration as the sanction for his misconduct. I accept the Respondent was entitled to demote the Complainant as per the Handbook.

In acknowledging that the Respondents procedures were inadequate I am awarding the complainant two weeks of Remuneration.

In connection with the Payment of Wages claim brought before the WRC, the Complainant ultimately is making a claim under three separate headings.

1 The Complainant says he is owed wages in respect of days worked from the 1st to the 15th of November. He says the amount owed is €3,666.00 which amount to circa 11 days at an agreed rate of €318.00 per day. The Respondent has seemingly agreed to this although they have deducted a half day of pay for the day of the meeting held on the 15th of November- a move that might be interpreted as somewhat miserly.

The Respondent whilst conceding this figure have, without the Complainant’s permission, deducted €1,400.00 from the remuneration as payback for the cost of different upskilling courses that the Complainant went on and which he agreed would benefit his Employer in the immediate term. Whilst not without justification, it is not good practise to unilaterally deduct wages in this manner.

2 The Complainant says he is entitled to payment in respect of one day of Holiday. This is agreed by the Respondent though this is given at a rate of €303.00 and not €318.00.

To my mind the Respondent should be paying the Complainant 13 days’ pay at a rate of €318.00. This amounts to €3,816.00 less the €1,400.00 for courses leaves a payment of wage claim of €2,416.00 of which  €1,437.00 was paid. This leaves €979.00 outstanding.

The Complainant says he is owed Minimum Notice in the amount of six weeks of pay. This entitlement is in the complainant’s Contract. This would be a gross amount of €9,230.00. However, the Complainant’s conduct was considered by his Employer to be gross misconduct. I do not reject this assessment of his actions. It is the case that an employee found guilty of gross misconduct can have their employment terminated without notice. I think this principle holds true even if the Respondent had determined a different sanction might be equally acceptable to them as the employer. The complainant is not entitled to be paid six weeks’ notice in the aftermath of such an egregious breach of trust.

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

CA-00060796-001 - The Complainant was unfairly dismissed and I award €3,180.00.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060796-002 - This complaint is well founded and I award €979.00

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060796-004 – This complaint is not well founded