ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010349
A bricklaying sub-contracting company
Andrew Smith, Builders and Allied Trades Union
David Boughton, BL
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Date of Adjudication Hearing: 02/05/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 13 of the Industrial Relations Act 1969, this complaint was assigned to me by the Director General. I conducted a hearing on May 2nd 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant was accompanied by a colleague who also submitted a complaint against this respondent, under ADJ 00010344. The two complaints were considered at the same hearing; however separate decisions have been issued in respect of each one. The complainants were represented by Mr Andrew Smith of the Builders and Allied Trades Union.
The respondent was represented by Mr David Boughton BL, instructed by Moran and Ryan Solicitors. Ms Caoimhe Connolly, solicitor also attended. The respondent is a sub-contracting brick-laying business and two directors attended the hearing. A representative for the main contractor also attended.
The complainant is a bricklayer and he was employed by the respondent for six weeks, from June 26th until August 8th 2017. He was dismissed because his employer decided that he failed to meet the standard of work required by them and by the main contractor. His complaint is that his employer failed to follow any procedures leading to his dismissal.
As he had less than one year of service, he submitted his complaint under the Industrial Relations Act 1969 and he is seeking compensation for what he considers was unfair treatment.
Summary of Complainant’s Case:
From October 2016, the complainant worked on a construction site in west Dublin, but they were on bogus self-employment contracts which their union complained about. The main contractor then engaged a new brick-laying sub-contractor and the complainant and his colleague commenced employment on June 26th 2017 with this company, the respondent to this complaint.
In July 2017, the men reported to their union that there was an issue with the pricing of the piece rate for the job they were on. They were concerned that the wages of the general operatives were included in their wages, resulting in them being on a lower piece rate than they expected. When their union official intervened to resolve this issue, the men complained that they were being assigned to low-priced work and that the company’s longer-serving employees were being given work which resulted in higher earnings. In the end, before this issue was resolved, the complainant and his colleague were dismissed for “bad work.”
On behalf of the two bricklayers, Mr Smith said that while a few issues were pointed out to the men and “one or two joints had to be filled,” they were simply told to “keep an eye on levels.” He argued that the failure of the respondent to follow any of the standard procedures set out in the Code of Practice on Grievance and Disciplinary Procedures (SI 146 2000), resulted in an entirely unfair process. He claimed that, when the men enquired about their rights, their conditions of employment got worse and ultimately, they were dismissed outside of without any procedure.
Having been dismissed by letter on August 8th 2017, the complainant appealed against this decision and an appeal meeting was scheduled for August 16th. Mr Smith said that while he attended the construction site for this meeting, it became apparent to him that the directors would not change their minds about the decision to dismiss the complainant and his colleague. As a result, he did not pursue the option to appeal.
At the time of this hearing in May 2018, the complainant and his colleague had found new jobs and Mr Smith therefore argued that for an award of compensation.
Summary of Respondent’s Case:
On behalf of the respondent, Mr Boughton said that having commenced employment on June 26th 2017, the complainant and his colleague were on probation when they were dismissed. A contract of employment was submitted in evidence which provided that;
“...for the first six months of your employment, you will be employed on a probationary basis…it is hereby mutually agreed that employment can be terminated by either party giving one week’s written notice during the probationary period….The organisation reserves the right to apply a modified disciplinary procedure during the probationary period.”
Mr Boughton said that the complainant was dismissed due to the poor standard of work on the job to which he was assigned. A supervisor working with the main contractor attended the hearing and he said that he spoke to the complainant and his colleague separately and he told them that he was not satisfied with the standard of their work. At the hearing, he explained that the work being undertaken by the complainants was part of the sub-structure of blocks of houses. The work had to be carried out to strict specifications regarding measurements, standards and final finishes so that the next phase of the construction could be completed in accordance with the specifications for that phase of the work. This supervisor said that some elements of the work that the complainant and his colleague did had to be re-done, resulting in lost time and additional costs to the contractor. Having engaged with the complainant and his colleague consistently during the month of July, the supervisor said that he spoke to the directors of the respondent company and explained to them the problems with the work being done by the two bricklayers.
Photographs were included in the respondent’s submission which showed the sub-structure of the housing block and identified the concerns of the company with regard to the work of the complainant and his colleague.
The letter of dismissal which was sent to the complainant on August 8th 2017, was sent by one of the directors following a probation review meeting on the same day. In the letter, the director set out the reason for the dismissal:
“Further to the probation review meeting held on 08/08/17, I am writing to confirm my decision.
“As you are aware, when you started working with us we had high hopes and expectations that you would meet the standards we require. Unfortunately, this has not proved to be the case.
“I gave careful consideration to your responses in the meeting but reached the conclusion that you have failed to demonstrate your suitability for your role during your probationary period.
“It is with regret that I confirm that your employment is terminated with immediate effect.”
Mr Boughton said that the complainant was afforded a right of appeal, but, having agreed to attend, his union representative did not participate in the appeal meeting. The respondent’s position is that the dismissal was justified, and, as it took effect during the complainant’s probation, there was no requirement to following standard disciplinary procedures.
Findings and Conclusions:
While the complainant and his colleague were on probation, it is apparent that the standard of their work was not what was required by the respondent, who was their employer, or by the supervisor of the main contractor responsible for building the houses on the site. At the hearing, the critical requirement for accurate, clean and correctly aligned brickwork was pointed out. If the sub-structure is not built correctly, the remainder of the construction will not be right. The only course of action, when problems are identified, is to dismantle the faulty work and start again. In a worst-case scenario, the building work continues and problems emerge at every stage of the rest of the construction.
The purpose of probation is to support an employee in difficulty to meet the standards required by his employer, not to dismiss him outside of procedures. It is my view that the respondent acted too quickly with regard to their decision to terminate the complainant’s employment. When they were informed by the supervisor for the main contractor that there were issues with the standard of the complainant’s work, this should have been pointed out to him. He should have been shown how to do the job properly, given time to meet the standard required and told that he would be dismissed if he did not reach that standard. If, at the end of a specific timeframe, which, in the case of a job such as a bricklayer, could be a matter of days, he did not meet the standard, it would not have been unreasonable to dismiss him.
I accept that, for an employee on probation, it may not be appropriate and there may not be enough time to go through the entirety of a disciplinary procedure from verbal warning to final written warning. However, even for an employee on probation, there is still a requirement to inform him or her that there are issues with conduct, or in this case, with performance. They must be informed of what is required to remediate the problems and they must know what it takes to avoid being dismissed. If the complainant had been clearly informed what was required and told that if he did not meet that standard he would be dismissed, he might have avoided dismissal. This was not done, and for this reason, I find that his dismissal was unfair.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have concluded that the complainant was dismissed unfairly. I therefore recommend that the respondent should pay compensation equivalent to two weeks’ gross pay, a sum equivalent to €1,900.
Dated: 30th August 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Dismissal, probation, Industrial Relations Act