Complainant

Respondent

Parties

David  Smyth

Cullen Blasting and Fitting Limited

Representatives

Self-Represented

Mr L Asmussen Bl instructed by Dermot G. Byron of Rogers & Byron Solicitors

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-00067232-001

07/11/2024

The Complaint concerns the alleged Unfair Dismissal of the Complainant, a mechanical fitter, by the Respondent Fitting and Engineering Company. The employment began on the 4th September 2023 and ended on the 6th September 2024.

The rate of pay was stated by the Complainant to have been €1,287.00 gross for an alleged 78 hour week. This hours figure was contested by the Respondent.

The Complainant was self-represented and gave a detailed oral testimony in support of his Complaint form and supporting copy correspondence. He had worked , as a subcontract fitter , on the Roadstone site at Feltrim. There were no issues and everything was normal.

On the 26th August 2024 he had to go on sick leave due to a Covid infection. He was certified for one week by his GP. On Wednesday the 28th August the Respondent sent two employees , at 21:45 hrs ,to the Complainant’s home to collect a company van he had been provided with. The van was returned to the Respondent although the lateness of the hour was naturally upsetting to the Complainant. The Complainant contacted the Office on Sunday the 1st September regarding a return to work on Monday the 2nd September.  The Respondent abruptly told him that he could not afford to keep him and that the job was over. He was paid his Notice and Holiday Pay. There were no discussions or warnings and it was completely unfair.

 Roadstone had no issue with his work and were happy to keep paying him. Reference was made to a Roadstone Manager , Mr B, who allegedly said he would gladly have him back as his fitting work had been without complaint. This was verbally stated under Oath by the Complainant.

He maintained his dismissal had been arbitrary as the Respondent Principal, Mr C, had taken umbrage at having to pay him Statutory Sick pay when he, the Complainant, was out with Covid. It was out of the blue with no warnings and no proper procedures. It was completely Unfair.

The Respondent, who gave an Oral testimony, was represented by Mr L Asmussen BL. A written submission was provided.

In essence the Respondent case was that Roadstone, the major Firm that had engaged the Respondent Company had changed their Sub Contractors to a new Sub Supplier. In addition a new Roadstone Site Manager was in place. Both issues lead to their no longer being any work for the Complainant. The relationship with Roadstone had always been on a day to day basis with no formal written contract. They were a very small mechanical sub-contractor reliant on good will from local Roadstone Managers.

As a small Company they  could not continue, without the Roadstone money,  to employ the Complainant . They had no choice but to let him go. At that time in September 2024 they had no other Contracts to redeploy the Complainant to. There was ,they hoped , no hard feelings .

It was a business decision that was almost completely out of their hands once Roadstone had indicated that there was no further work. They noted that the Complainant, a highly skilled fitter, soon found other mechanical fitting work.

3:1       The Legal position.

It appeared that there was no formal Contract in place between the Respondent and the Complainant.

None the less, the situation is governed by the Unfair Dismissals Act,1977 and SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures.

Section 2 (2) (b) of the main Act refers to an exclusion from Unfair Dismissal where the employee was let go when a “Specified Purpose” situation expired – in this case the Roadstone work. However, in the absence of any written Employment contract this would be hard to argue. Furthermore Section 6 (4) (c) of the Act refers to a situation where a Redundancy takes place.

On a broad brush both these Legal references are in the Respondents favour.

However, an Adjudicator is allowed  by Section 14 of the UD Act, 1977 to have reference to the overall Context of a Dismissal. SI 146 of 2000 -the Code of Practice -looks very unfavourably on “Instant Dismissal” regardless of any mitigating circumstances.

The landmark Legal case of Frizelle v New Ross Credit Union Ltd, [1997]IEHC 137 Flood J set out a number of basic principles for an Unfair Dismissal case – the key comment being

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied

In this case, Natural Justice would indicate at minimum that the Complainant be given an opportunity to state his case and get some opportunity to discuss alternatives. This would normally apply in a Redundancy situation albeit in this case the Complainant did not have the required qualifying service.

However, legal issues aside, all cases have to be examined on the basis of their context and local evidence.

3:2       Consideration of evidence both Written and Oral

The key evidence here was that the Complainant was effectively dismissed by means of a phone call/text message. While there were mitigating circumstances there was no proper procedure followed, no opportunity for the Complainant to state his case and or to suggest alternatives. Reclaiming his van from his private house at 21.45 hrs on Wednesday 28th , while he was on certified sick leave, was not suggestive of a reasonable Employer response.

On this procedural basis a case for Unfair Dismissal has been made. Redress is due.

3:3      Redress

Redress has to be seen ( Section 7 (10)  (c)  as “Just and equitable having regard to all the circumstances”.

The Complainant ,being highly skilled quickly found comparable work at similar wages although he was ,he maintained , forced to buy a Jeep for personal transport to replace the Company van he had been provided with. As he was out of work for just four weeks, a limit is set on the redress amount.

Accordingly ,taking all matter into account, especially the Procedural shortcomings on the Respondent employer side, a Redress Amount of €1,200 (being approximately one week’s pay) is ordered.

Unfair Dismissal, Procedures