ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029984
Derek Daly Construction Ltd
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 28/01/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
In accordance withSection 8 of the Unfair Dismissals Acts, 1977 - 2016,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This complaint was originally scheduled to be heard on 18 June 2021. However, at that hearing it became evident very quickly that there was serious conflict between the parties and on that basis the hearing was adjourned to await the amending legislation which would allow for sworn evidence. The parties gave their evidence following affirmation at the resumed hearing. An employee of the Respondent who was involved in the altercation with the Complainant was present at the hearing but was not called to give evidence.
This case is concerned with a dismissal which are said to have followed from disputes involving the Complainant and the Respondent directly and also an altercation between the Complainant and another employee witnessed by the Respondent.
Summary of Respondents Case:
Mr Daly gave evidence that he had employed Mr Gilligan who is related to him in March 2019 and accepted that he dismissed him on 24 August 2020. He spoke about incidents between Mr Gilligan and an apprentice which he described as a lot of bullying of the apprentice. He had to intervene on one occasion and force both men to apologise. Then there were issues about Mr Gilligan’s wages and these were referenced in texts provided by Mr Gilligan. He wanted more money and he refused to do blockwork although he was hired to do this work and had completed blockwork on four houses before he refused to do that work again. Two weeks before the incident on August 21st 2020, he had given Mr Gilligan notice of his dismissal for refusing to do blockwork. There was a small patio job to be done and he had refused. So as far as he was concerned Mr Gilligan was already sacked before the incident adding that he now realised that the mistake he made was not putting anything in writing.
On the morning of 21 August at around 8.10 am Mr Gilligan made a remark to the apprentice giving him grief of a personal nature. The apprentice pushed Mr Gilligan and he fell on the ground. When he got up he hit the apprentice in the face breaking his nose. The apprentice left the site. Mr Daly went to Mr Gilligan’s house twice over the weekend to get an incident form from him. He was told Mr Gilligan was not there-and not to come back. Mr Daly took advice from the Citizens Information Service and was informed that an employee could be dismissed for what was described as gross misconduct -an assault. And so, he fired Mr Gilligan. As they are related, and he didn’t want any bad feeling he paid him notice pay. He said he could not take the risk of having the two men on the site at the same time again. If anything else happened he could be held responsible.
The apprentice was also let go but sometime later after he had completed his College work, he and his parents went to Mr Daly and apologised for his behaviour, so he took him back as an apprentice.
The three forms of redress were explained at the hearing. Asked for his preferred option in the event of a finding of unfair dismissal, Mr Daly replied none. Asked again, he replied compensation and went on to say that a large sum would finish the business. It was explained to him that the decision would be made in accordance with the Unfair Dismissals Act and for no other reason.
Summary of Complainants Case:
The Complainant said he had an issue about his rate of pay-that he was promised €700 after Christmas in a verbal agreement with Mr Daly but he then refused to increase his pay. He sent numerous texts about the rate of pay. In June he fractured his finger and Mr Daly still expected him to do blockwork when he returned to work. As far as he was concerned he was hired as a labourer-not to do blockwork. He described different physical issues he had and why he wasn’t able to do the blockwork any more. Mr Daly pulled him aside a couple of times over the blockwork and in or around the August 18th he did tell him if he did not continue to do the blockwork he would dismiss him. But he was not dismissed at that stage and received nothing in writing.
On the morning of the incident the apprentice arrived to work a few minutes after him. Mr Gilligan asked him if he was in good form. The apprentice then gave him a push backwards and Mr Gilligan said he did go back at the apprentice and gave him an open palm slap in the face. The apprentice left the site and he continued to work. The following day he was stopped by the parents of the apprentice who were talking about him assaulting the apprentice. Mr Gilligan contacted Mr Daly and asked him to contact the parents to tell them what had happened. Mr Daly told him the parents were now talking of Mr Gilligan having bullied the apprentice and Mr Daly said, ‘we will all sort it out’. On August 24th Mr Gilligan went for an x-ray on his hand and was told there was a significant amount of wear and tear. On Sunday 23rd he was informed there was no work for him on site. On the Monday evening, August 24th Mr Daly dismissed him saying he didn’t want either of the men on the site. The following Monday he called for forms wanting them completed but Mr Gilligan said he had never received any forms. There were no warnings no investigations of bullying and no meetings about what had happened at which either he or the apprentice got to tell their side of the story and no warnings at any stage. Although he was told that both he and the apprentice were dismissed, the other man was taken back by Mr Daly.
The form of redress preferred by Mr Gilligan is compensation.
There were two different disputes between the Respondent and the Complainant running concurrently. The first related to pay. It would seem that for Mr Gilligan the actual rate of pay was his nett pay which he considered should be of the order of €700 rather than the same figure approximately for his gross pay. It would appear that, on the basis of this dispute Mr Gilligan refused to do block laying or at least the two issues were probably related.
The second dispute was between Mr Gilligan and another named employee and that involved personalised remarks by Mr Gilligan. Mr Daly’s evidence that he had to intervene in a previous altercation between the two workers is accepted as credible. This erupted again on the morning of August 21st into a physical interaction between the two employees witnessed by Mr Daly.
On the balance of probabilities and given the absence of any paperwork issued by Mr Daly to cover the first issue i.e. what he claims was notice of dismissal regarding the refusal to resume block laying was in fact by way of a warning. Consequently, I find that the only actual notice of dismissal was that in respect of the altercation with the apprentice.
Even if it were to be accepted that Mr Daly had given Mr Gilligan notice of his dismissal two weeks before the incident on 21 August and that Mr Gilligan was serving his notice at that time, or-the manner in which Mr Daly conducted his version of disciplinary procedures on both occasions was unfair. There were no written terms of employment, there was no grievance or disciplinary procedure in place and none was followed. The word bullying was used more than once by Mr Daly but he neither had a policy or procedure to address this issue if there was such an issue to be addressed. Asking an employee to complete an incident report does not constitute a disciplinary procedure.
Having found the dismissal was unfair due to the absence any semblance of procedures, the issue to be addressed is that of redress. Regrettably even though the parties are related, reinstatement or re-engagement is not a reasonable option given they have been unable to reconcile their differences at all in the intervening period. Mr Gilligan is now gainfully employed. In deciding therefore that compensation is the appropriate remedy in the circumstances, two factors are taken into account.
The first is Mr Gilligan’s contribution to the decision to dismiss him. While accepting that he was provoked by being pushed by the other employee, he did react by hitting that employee. Such conduct is a dismissible offence on the grounds of gross misconduct. His contribution to that altercation was more than fifty per cent given that it was, and it is accepted in these findings, his provocative personalised comments addressed to the other employee which caused that employee to push him to the ground. I have put this contribution to the decision to dismiss him at sixty six percent.
The second factor to be considered in deciding on compensation is the efforts made by Mr Gilligan to obtain alternative work and so to reduce his financial losses as he was required to do. Based on his own evidence Mr Gilligan sought employment with one named contractor-the one with whom he was employed at the time of the hearing. That employer did not have work for him immediately and told him it would be after Christmas. While awaiting word from that contractor, Mr Gilligan chose to work only one day per week in order to preserve his social welfare benefits. That was his choice, but Mr Daly cannot be expected to compensate him for that choice. Having concluded that Mr Gilligan did not make meaningful efforts to offset his losses it is determined that the maximum compensation to which he is entitled would be four weeks gross pay or €2928.80. Allowing that he contributed 66% to the decision of the Respondent-the total sum of compensation is reduced to thirty-three per cent of the available compensation-leaving the sum of €966.50 to be paid by the Respondent on grounds that he failed to apply any procedures at all leading to the dismissal which simply cannot be overlooked and disregarded.
Section 8 of the Unfair Dismissals Acts, 1977 – 2016 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complaint of unfair dismissal brought by Martin Gilligan against the Respondent - Derek Daly Construction Ltd - is well founded. The Respondent is to pay Martin Gilligan €966.50 in compensation.
Dated: 4th February 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes