Complainant

Respondent

Parties

Jaroslaw Elwartowski

Keegan Quarries Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Beibhinn Murphy BL instructed by Roisín O'Shea Hamilton, Sheahan & Co Solicitors

 N/A

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-00064315-001

25/06/2024

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

CA-00064315-002

25/06/2024

The Complainant started his employment as a Fitter with the Respondent on 10 February 2023. He stated that he was unfairly dismissed by the Respondent on 8 April 2024 following a letter sent by his solicitors on 27 March 2024 stating that he would be taking legal action against them following an injury he suffered in the workplace on 30 March 2023.

On the morning of 30 March 2023, while at work at HQ, Trammon, Co. Meath the Complainant was injured while using a heavy hydraulic press resulting in an injury to his right index finger/knuckle area. He immediately sought help from his manager and she gave him a medical kit. He dressed the wound himself and continued to work until lunch time. Over lunch, his knuckle was swollen and his finger was not moving well. He felt that there was a foreign body in his knuckle and he confirmed this by taking a magnet to it. He went to his manager. She was annoyed but allowed him to go home. He sought medical assistance and underwent surgery. He continued to experience difficulties with his finger and further surgery is envisaged.

The Complainant was reimbursed by the Respondent for a GP visit. The production manager visited him at one stage stating that the Employer would look after his medical bills. This was later refused when the Respondent declined to pay the Complainant's bill from the Mater Hospital. The Complainant was informed by the Employer that he was only eligible for three days sick pay. When the Complainant then asked about being paid, he was told that his manager would be consulted and revert. This never happened and, despite reminders, it was never honoured.

The Complainant returned to work on the 24 April 2023 on normal duties. Ultimately, due to ongoing difficulties with his hand including working in cold weather over the winter of 2023-2024 in an open hanger/warehouse with no heating, the Complainant acquired an infection in January 2024 and was required to go on sick leave from 15 January 2024 to 19 January 2024.

On 27 March 2024, solicitors for the Complainant sent a letter of claim in relation to the Complainant 's personal injuries to the Respondent, further to the incident of 30 March 2023.

On 8 April 2024, the Complainant presented for work as normal at 8.00 am. He was informed by the head of the garage, to go home and to contact Padraig Barron, Chief of Operations. The  Complainant did so but was unable to reach him. After numerous attempts, the Employee's brother made contact with Padraig Barron and was informed that due to personal injury proceedings having been initiated, the Complainant's employment had been terminated.

There was no attendance by the Respondent on the day of the hearing.

CA-00064315-001:

The Law 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

Analysis and Findings

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

As the Complainant’s brother was informed that the Complainant’s dismissal was attributable to personal injury proceedings having been initiated by him, I find that his dismissal was both substantively and procedurally unfair. 

CA-00064315-002:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

I note in the instant case that, although the Complainant’s contract of employment provided that he be paid one month’s notice pay on the termination of his employment, he stated in his evidence that he did not receive payment of same.

Accordingly, I find that this complaint is well founded. 

CA-00064315-001:

Section 7 of the Act provides:

“7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

(2B) Where —

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Analysis

As set out above, I find that the Complainant was unfairly dismissed and that compensation is the appropriate remedy in this case as has found alternative work elsewhere and that the employment relationship has irretrievably broken down.

In calculating an award of compensation, I note firstly that the Complainant found work within a week of his dismissal and that he is earning more in his new employment than he did with the Respondent.

I also have regard however to the Labour Court decision in the case of Aoife Foley v Waterford Health Park Pharmacy Ltd T/A Stratus Healthcare (UDD2412) where it was stated as follows

The Court has had particular regard to the wording of section 7(1)(c)(i) whereby the Oireachtas provided that it may make an award of compensation not exceeding 104 weeks’ remuneration to an employee who has been unfairly dismissed the amount of which the Court deems to be “just and equitable having regard to all the circumstances”. A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment.

The second element of section 7 that the Court also notes is that the meaning it attributes to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss”.

Having regard to the foregoing and to the Complainant’s submissions, the Court finds that the appropriate level of compensation payable to the Complainant in this case is €14,000.00.

Similarly in the instant case, there was not a scintilla of procedural fairness around the Complainant’s dismissal and it was notable that the reason for his dismissal, namely his initiation of legal proceedings against the Respondent, was explained to his brother and not to him.

While I recognise that he found alternative work very quickly, thereby mitigating his financial loss, I have regard to the Labour Court’s findings in the decision cited above that there is no exhaustive definition of “financial loss” in the statute.

I also note the Labour Court decision in the case of Obasanjo Olajubu v Wasdell Europe UDD 2449 where it was highlighted that:

”An award of compensation must be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal”.

Considering all of the foregoing, I direct that the Respondent pay €15,000 to the Complainant in respect of the unfair dismissal. 

CA-00064315-002:

I find that the complaint is well founded for the reasons set out above. As he was entitled to one month’s notice pay following his dismissal, which he did not receive, I direct that the Respondent pay €2,857.33 (659.5*52/12) to the Complainant in respect of this complaint.