Complainant

Respondent

Parties

Krzysztof  Marcinkowski

Spectrum Telecom Installations Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Krystian Boino Boino Solicitors

Nicola Murphy Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063680-001

24/05/2024

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

CA-00063680-002

24/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00063680-003

24/05/2024

The complainant commenced employment with the respondent as a Lead Rigger Engineer on 31 August 2020.  He employment ended on 3 March 2024.

The complainant put forward that there had been two breeches of the Act.

Firstly, he alleges he was not paid for a day (7 December 2023) when work was cancelled due to severe weather conditions, although he had attended for work; he is due a total of €192 for this day.  This, he asserts, was an illegal deduction.

Secondly, when he was dismissed, he was paid two weeks’ pay in lieu of notice, he was not paid for annual leave he accrued for this two-week period; he is due .85 of a day’s pay amounting to €137.70.

Regarding the alleged non-payment of wages for the 7 December 2023, the respondent denies the complainant was underpaid. A witness for the respondent, Mr Conway, who gave evidence on affirmation at the hearing, stated that errors can occur but usually the workers bring it to the employer’s attention and the matter is resolved.

Regarding the claim for holiday pay for the period during which the complainant was paid in lieu of notice, the respondent submits that the complainant was dismissed on 20 February 2024 and was paid two weeks’ pay in lieu of notice, therefore he could not accrue holiday entitlements after 20 February 2024.

Regarding the alleged illegal deduction of €192 relating to 7 December 2023, from a review of the payslips provided by the respondent, the complainant most regularly worked 45 hours per week.  However, on the week in question the hours detailed on the payslip for the period drop to 37 hours. Interpreting the information provided on the payslips indicates that the complainant was paid one day less that week than he was in normal weeks, which supports his contention that he was not paid for 7 December 2023. He asserts that this was an illegal deduction from his pay.  In the absence of any clear evidence to counter this element of this complaint from the respondent, I must find in the complainant’s favour.

Regarding the second element of this complaint, i.e. the claim for holiday for the period of two-weeks covered by the period of the pay in lieu of notice, I find that the employment relationship ended on the 20 February 2024, therefore the complainant could not accrue holiday entitlements thereafter. This element of this complaint fails.

I find the act was breeched and I order the respondent to pay the complainant €192.

The respondent provided a detailed written submission.

The respondent submits that there was a downturn in business in late 2023, due to the completion of a project.  As a result, several staff were let go, however, the complainant was kept on and was seconded to work for another operator, but he remained at all times an employee of the respondent.

In December 2023, following a disciplinary process, the complainant was issued with a Final Written Warning, relating to his driving.

In December 2023, the respondent received several complaints from the company to which the complainant had been seconded relating to his performance. Following an investigation into these complainant’s the complainant was issued with a Final Written Warning, but he was not dismissed.

The respondent submits, that in January 2024, the company to which the complainant had been seconded, informed the respondent that they no longer had any work for the complainant. The respondent contacted the other company seeking work for the complainant but to no avail. Ultimately, it was found that the other company to which the complainant had been seconded were not happy with the complainant’s work and they would no longer be providing him with work.

The complainant was placed on paid suspension while the matter was investigated as the respondent had no alternative work for him.

A meeting the complainant and the respondent took place on 9 February 2024. At this meeting the respondent outlined that they had lobbied the other company on the complainant’s behalf to get him a role on site, but the third party declined to accede to this lobbying. The respondent also outlined how they had sought to find the complainant alternative work on other sites, but this was simply not possible. The respondent also discussed with the complainant other roles he could undertake with the respondent, but this was not possible as the other sites were downsizing and there was no work for the complainant.

The complainant was dismissed on 20 February 2024 by way of a letter. The complainant appealed the decision. 

His appeal was heard by a third party, but it was unsuccessful. The respondent submits that the complainant’s appeal was dismissed as there was no work for him due to the subcontractor’s refusal to work with him. In addition, there were no other suitable projects for the complainant to work on.

Legal Submissions from the Respondent

The respondent submits that this dismissal was fair. The complainant was dismissed for some other substantial grounds, in that there was no alternative work for him. The respondent refers to the UK decision of Henderson v Connect (South Tyneside) Ltd. [2010] IRLR 466, which it says Irish Tribunals have referred to regarding the reasonableness in taking a decision to dismiss in such circumstances.  

The respondent refers to the decision of Derek Hevey v Provincial Security Services Ltd. (UD447/2011).

Ms Sharon Conway gave evidence on affirmation.  Ms Conway explained that she is responsible for the administration of HR in the respondent company. She stated that there was no link between the disciplinary matters that had arisen related to the complainant and his eventual dismissal.  What led to the dismissal was that there had been a downturn in business and another company, Company B, took about 50% of the respondent’s employees (including the complainant) to keep them in work. The disciplinary matters referred to were to do with the complainant’s work in Company B. The respondent company had carried out an investigation, which Ms Conway subsequently took over. Company B told the respondent they did not want the complainant to work for them anymore. The respondent tried to find alternative work for the complainant but was unsuccessful. That being the case a decision was taken to dismiss the complainant on “some other substantial Ground. 

In response to questions put to her in cross examination, Ms Conway stated that there was no link between the complainant’s dismissal and the disciplinary action which had been taken against him. Ms Conway explained that Spectrum Telecoms and Company B are two separate companies. She confirmed the two companies have two common Directors.

In response to questions from me, Ms Conway stated that it was Company B’s decision to let the complainant go; that the respondent had tried to get Company B to keep the complainant in employment, but they said no to this request.  When asked if she had enquired from Company B whether they had carried out an investigation [into the complainant’s behaviour/breeches of discipline], Ms Conway stated that she had not done so.  Ms Conway stated that enquiries had been made about alternative employment but there was nothing that could be found.  Asked about swapping the complainant with a colleague, Ms Conway stated that different employees have different skills and the majority of the 60 employees in the respondent company were working for Company B.

When asked why this was a dismissal and not a redundancy situation Ms Conway stated that if Company B had been happy with his conduct, they would have kept him on.  She stated that the respondent had carried out an investigation into the complainant’s behaviour but when asked whether she had taken witness statements from Company B and whether these had been provided to the complainant she replied, no, a lot of things had been done over the phone; there had been calls between Mr Stephen Carey and the Company B Operations Manager.

Mr Stephen Carey gave evidence on affirmation at the hearing.

Mr Carey explained that he is General Manager of the respondent company.

Mr Carey stated that he had received phone calls from Company B about the complainant’s timekeeping, his refusal to climb and his work ethic.  The complainant had been called to a disciplinary meeting the intention being to allow him time to improve his performance. Following the disciplinary meeting the complainant was issued with a Final Written warning, which he did not believe was appealed.

Mr Carey stated that he had lobbied on the complainant’s behalf with Company B that they might continue with the complainant’s employment (after the complainant had been suspended). He also tried to get the complainant a role in another area within the respondent company but to no avail. The witness stated that he had had three or four conversations with his contact in Company B trying to get them to continue with the complainant’s employment. In addition, he emailed them, but Company B were adamant they would not take the complainant back. Because there was nowhere to put the complainant the respondent decided to terminate his employment.  The witness stated that the decision was in compliance with the Act; the respondent had work, but Glendine would not take the complainant back. It was his decision to dismiss the complainant.

In response to questions put to him in cross examination, Mr Carey stated that although he had mentioned that to the complainant that he had sent several emails to Glendine attempting to persuade Company B to take back the complainant, he had actually only sent one email, but he had made several phone calls.

When asked whether he had considered putting the complainant into some other position, Mr Carey stated that most of the other positions were with Company B.  He had tried one other area, but he was told that that area had barely enough work for those working there already. He had considered swapping the complainant but based on the skills it was not feasible. When asked why he did not lay-off the complainant, Mr Carey stated that “indicators” of work don’t always transpire, for example a project with another named third party had gone. He accepted he did not know this when he made the decision to dismiss the complainant.

In response to questions put to him by the Adjudication Officer, Mr Carey stated that the respondent and Company B did not operate in the same building at the time of the complainant’s dismissal but that they do so now. He explained that some managers move between Spectrum Telecom and Company B.  Mr Carey stated he had been trying to the complainant in work but there was only so much he could do, particularly when he kept getting complaints about him.  He did not have any other roles for the complainant.

In closing the respondent asserts that it made repeated attempts to get the other employer to change their mind and lobbied on the complainant’s behalf. 

The respondent submits that even though the outcome for the employee may be considered unjust, that injustice was not as a result of any unreasonableness on the part of the respondent.

The complainant provided a detailed written submission.

The complainant submits that allegations were made against him in December 2023 regarding matters relating to his work with Company B.  Notwithstanding these allegations the complainant worked for Company B from 15 January to 19 January 2024, without any issues. Suddenly, on 29 January 2024, Company B contacted the respondent by email stating that “I do not have work for Krzysztof.”

The complainant submits that on 20 February 2024, the complainant was dismissed by the respondent because Company B no longer wanted him to work with them and there was no other work available for him.

The complainant submits that in order for a dismissal, based on other substantial ground justifying the dismissal, to succeed, the respondent must show that:

·        Everything that could have been done reasonably was done to avoid the injustice brought about by the stance of the alleged respondent client (Company B).

·        That the effort to discuss the issue with the alleged client Glendine was genuine and addressed at a proper level and a proper investigation was conducted.

·        The respondent employer acted reasonably and explored all other/alternative options to keep the Complainant in employment.

The complainant submits that the evidence adduced by the respondent in submissions to the Adjudication Officer indicate that not nearly enough effort was made by the respondent to protect the complainant’s employment.

The complainant, Mr Marcinkowski gave evidence on Affirmation at the hearing.

The complainant explained that he had joined the respondent company in August 2020, and he always worked on projects. He confirmed he had been subject to disciplinary action, but he had not been made aware of about his timekeeping and work ethic in January 2024.

Regarding the respondent’s position that there was no work available for him when he was no longer wanted by Company B, the complainant stated that he did not agree with this claim. He stated that another project group consisted of eight people, including his son.  His son or another person, could have replaced him on the Company B project and he could have moved to the other project.

Mr Marcinkowski stated that he had appealed the decision that he be dismissed, that he said he disagreed with the decision and that he could have worked on another job.  He said that “I am not guilty of the situation.”

Mr Marcinowski gave evidence on his attempts to find work after he had been dismissed.  He explained that he had been promised a job, but this fell through, and he did not take up gainful employment, until 15 May 2024 on better terms and conditions that those he enjoyed with the respondent.  He was out of work for some 10 weeks.

Legal Submissions from the Complainant

The complainant refers to Catherine Merrigan v Home Counties Cleaning Ltd, UD904/1984 and Derek Heavy Provincial Security Services Ltd UD447/2011 to support this contention.

In closing the respondent reiterated that this was an unfair dismissal.

I have considered this matter carefully.

Section 6 of the Act States:

“(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

The reason for the complainant’s dismissal as presented by the respondent is that Company B would not allow him to work with them anymore and there was no suitable alternative work available for him in the respondent company.  The respondent maintains that it made reasonable efforts to persuade Company B to allow the complainant to continue to work with them and when it became obvious that this was not going to happen, the respondent attempted to find alternative work for the complainant elsewhere within the respondent company; this effort was unsuccessful. This whole turn of events amounting to a situation justifying dismissal on “other substantial grounds.”

The complainant puts forward that he was not treated fairly in that there was no proper investigation carried out by the respondent into the allegations made against him by Company B. He also asserts that the efforts made by the respondent to find alternative work for him within the respondent company fell well short of what is expected of an employer, culminating in him being unfairly dismissed.

In Derek Hevey v Provincial Security Services Ltd. (UD447/2011). The Tribunal stated that ….”The employer will be expected to show that it has conducted an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site.”

For an employer to fairly dismiss an employee who is working with a client, one of two things must take place. Either the end user, the client company, carries out an investigation (which must be both thorough and fair, adhering to the principles of natural justice) which finds that a dismissal is warranted, following which the employer must consider this finding and consider the actions it must take in relation to their employee. If the client company does not carry out such an investigation, the employer itself must carry out an investigation into the employee’s behaviour (thorough and fair, adhering to the principles of natural justice) which results in a dismissal being justified. I find that in this instant case no such investigations took place. Neither the client company nor the respondent caried out thorough and fair investigations.  Although the complainant had been issued with a Final Written Warning in late 2023, this warning was not related to the reasons given for his dismissal and is therefore irrelevant.

I also find that the employer in this instant case failed to make reasonable efforts to find suitable alternative employment for the complainant.  From the evidence adduced the efforts made amounted to a few phone calls and a few emails.  It behoves an employer to do their upmost to find alternative work in circumstances such as those outlined above.  I do not believe this was done in this case. 

I find that this was an unfair dismissal

I must now consider what compensation ids just and equitable in these circumstances.

At the hearing the complainant gave evidence on the efforts he made to find work after his dismissal.  He was unfortunate in that one job he was promised, and he waited for fell through. He did find work some ten weeks after his dismissal and I find compensation of ten weeks’ pay is justified in this case. I therefore award the complainant €8,100.

The complainant was unfairly dismissed, and I award him €8,100.

Investigation, client company, alternative employment.