Complainant

Respondent

Parties

Paul Danca

GDC Construction Services Limited

Representatives

Marius Marosan

 Represented by Management

Act

Complaint Reference No.

Date of Receipt

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

CA-00065817-001

05/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00065817-002

05/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00065817-003

05/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00065817-004

05/09/2024

The complainant is a steel fixer and he commenced employment with the respondent on November 28th 2017.  He left his job in May 2021, but he returned to work for the respondent on January 25th 2022.  There is a dispute between the complainant and his former employer regarding the termination of his employment.  The complainant argues that he was dismissed and the respondent’s position is that he left.  There is no dispute about the fact that the complainant’s last day at work was March 22nd 2024.

Arguing that he was unfairly dismissed, the complainant claims that he got no notice of his dismissal and he claims four weeks’ pay in lieu of notice.  Under the heading of the Sectoral Employment Order (SEO) for Construction Workers (Statutory Instrument 243 of 2019), he claims that his employer did not make pension contributions on his behalf and finally, he claims an entitlement to a benefit for working on public holidays.

Chronology Leading to these Complaints

The complainant was working as a steel fixer on a construction site in College Square, Dublin 2.  On Friday, March 22nd 2024, the respondent’s health and safety officer, Mr Neville McDermott, approached the complainant as he was using a consaw and instructed him to wear safety glasses.    The complainant ignored Mr McDermott, who repeated the instruction.  Mr McDermott’s evidence is that the complainant told him to “fuck off” and continued with his task without eye protection.  Mr McDermott advised the complainant that he would report his conduct to one of the directors, Mr Anthony Giblin.  The complainant repeated the expletive and told Mr McDermott to go back to the office.

Mr Giblin gave evidence about his conversation with the complainant shortly after this encounter with Mr McDermott.  Mr Giblin said that he spoke to the complainant in private and addressed a number of safety issues with him, including using his phone at work and not wearing PPE.  Mr Giblin told the complainant that other employees had concerns about the pace at which he was working and about his attitude and he told him that this needed to change if he wanted to remain working with the company.  The complainant went back to work and finished up that day at his usual finishing time.

On Sunday, March 24th at 15.43, the complainant sent a text message to the managing director, Mr Vincent Coyle.  He provided a copy of this text message in his documents for the hearing.  In his message he said,

“Hi Vinny sorry for disturbing I don’t know if you know but Giblin has sacked me Friday.  The reason was because “AB” and “CD” doesn’t like me anymore and this is not a good reason to sack me.  He didn’t give me any notice, no written notice so please sent me an email with the reason why they sacked me and with your decision as well.  Thanks!” 

Mr Coyle replied and asked the complainant if there was “an issue with safety and Neville.”   A back-and-forth WhatsApp conversation then ensued in which Mr Coyle asked the complainant why he was disrespectful to Mr McDermott and the complainant looked for confirmation that he was dismissed.

In his evidence, the complainant said that he started a new job on Tuesday, March 26th. 

One week later, on Tuesday, April 2nd, the complainant sent an email to Mr Coyle.  He sent the email to Mr Coyle’s email address, but wrote a message, “To whom it may concern,” seeking a statement with the reason for his dismissal.  He said, “I was only told that people don’t like me anymore.”  Mr Coyle replied on Thursday, April 4th and told the complainant that he was not dismissed and instructed him to report for work the next day.

The complainant didn’t reply and didn’t turn up for work and Mr Coyle wrote again on Tuesday, April 9th.  He reiterated his position that the complainant had not been dismissed and he asked him to contact him about coming back to work.  He asked the complainant to contact him by 12.00 noon the following day.  The complainant wrote back and repeated that Mr Giblin had told him to finish up because his two named colleagues didn’t like him.  He said that he felt humiliated when he was treated in such a demeaning way and he said that he couldn’t work there any longer.  He concluded his email saying that he would seek assistance from the WRC.

On April 15th, Mr Coyle sent the complainant a text message and asked him to ring him.

The complainant replied, “Hi Vinny, sorry I’m working, send me message please.”

Mr Coyle replied,

“…was ringing to see if we could clear the air etc.  We have plenty of work as you know.  Would prefer not to go the WRC road, but obviously that’s your choice.  And that’s what it’s there for.”

On April 18th, Mr Coyle wrote to the complainant again.  He reiterated that the complainant was not dismissed and he sent him a copy of the company’s grievance procedure and encouraged him to invoke the procedure to address his concerns.  Mr Coyle concluded his email by telling the complainant that he could be assigned to a different site while the issues are worked through.

The complainant did not reply to this correspondence and, on May 20th, Mr Coyle wrote to him to confirm his termination due to resignation.  The complainant replied on May 24th and said that “a complaint is already filed with WRC.”  These complaints were not submitted to the WRC until September 5th 2024.

Commencing his submission, Mr Marosan said that the complainant was dismissed “on the spot” after he was told that his associates didn’t like him.  Mr Marosan said that no disciplinary action was taken on March 22nd 2024 when the safety officer asked the complainant to wear safety glasses and no allegations of misconduct were put to him.  Mr Marosan submitted therefore, that the complainant was dismissed without notice and without adherence to proper procedures.

Mr Marosan also submitted that the respondent failed to pay into a private pension scheme for the complainant, in accordance with the SEO for the Construction Industry.

Finally, Mr Marosan referred to a provision in the SEO of 2019 that employees in the construction sector who work on public holidays are entitled to double time plus a day off.  Mr Marosan said that the complainant was paid for eight hours for each of the public holidays although he worked for 9.5 hours each day.

In support of the complainant’s case, Mr Marosan referred to the following legal precedents:

C&W O’Brien Architects v A Worker[1] in which the Labour Court emphasised the importance of fair procedures.

Brampton Care Limited v A Worker[2], in which the Labour Court referred to the importance of adhering to the Code of Practice on Grievance and Disciplinary Procedures.

Medfit Wellness Limited v Ruth Murphy[3], where the Labour Court emphasised the responsibility of an employer to maintain hours of work records.

Krzystof Cender v Onsite Facilities Management Limited[4], in which Mr Cender was awarded €16,000 for breaches of several provisions of the Organisation of Working Time Act 1997.

Evidence of the Complainant, Mr Paul Danca

In response to a question from Mr Marosan concerning what happened on March 22nd 2024, the complainant replied that “Neville told me about the goggles.”  (Neville McDermott is the health and safety officer).  The complainant went on, “I was arguing and cursing, but not at him.”  Five minutes later, the complainant said that he was approached by Mr Giblin, who told him that he had spoken to his associates and that they didn’t like him anymore.  He said that Mr Giblin told him that this was his last day and that he wasn’t needed any more.  The complainant said that he finished up at 5.00pm.

In response to a question from Mr Marosan, the complainant said that Mr Coyle asked him to come back to work on April 15th 2024.  The complainant agreed with Mr Marosan that, between March 22nd and April 15th 2024, “no one said you were not dismissed.” 

In a submission provided in advance of the hearing of these complaints, the respondent summarised the events of March 22nd 2024, when the complainant refused to comply with an instruction from the safety officer to wear glasses while cutting steel.  When the safety officer reported to Mr Giblin that the complainant was abusive to him when he instructed him to wear the glasses, Mr Giblin met the complainant informally.  Mr Giblin admonished the complainant about using his phone on the site in recent weeks and the previous evening and for not wearing PPE.  He also spoke to him about the pace at which he was working and about work stoppages.  Mr Giblin told the complainant that several foremen and the health and safety officer were concerned about his attitude and he told him that his attitude needed to change if he wanted to continue working with the company.  Mr Giblin did not tell him that he was dismissed and the complainant went back to work for the rest of the day.

On Sunday, March 24th, the complainant sent text messages to the managing director, Mr Coyle, asking him to confirm the reason that he was dismissed. 

The complainant didn’t come to work on Monday, March 25th or for the rest of that week.  Friday, March 29th was Good Friday and a day off and the next working day was the Tuesday after Easter, April 2nd.  The complainant sent an email to Mr Coyle that day, again asking for confirmation of the reason for his dismissal.  On April 4th, Mr Coyle replied and told the complainant that he wasn’t dismissed and that he should come to work the next day, when whatever issues caused him to think he was dismissed would be addressed.

With no further communication from the complainant, Mr Coyle wrote to him again on April 9th and stated again that he had not been dismissed.  Mr Coyle asked the complainant to let him know if he was resigning.  The complainant replied and said that he couldn’t work for the respondent because he was humiliated on March 22nd when Mr Giblin told him that his colleagues didn’t like him.

On April 15th 2024, Mr Coyle phoned the complainant and, when he didn’t get an answer, he sent him a text message asking him to call him.  The complainant replied by text message and informed Mr Coyle that he was working.  Mr Coyle wrote to the complainant again on April 18th and repeated that he had not been dismissed and encouraged him to use the grievance procedure to address his concerns.  When he got no response, Mr Coyle wrote to the complainant on May 23rd and confirmed that his employment had ended due to his resignation.

It is the respondent’s position that the termination of the complainant’s employment does not meet the definition of dismissal at s.1 of the Unfair Dismissals Act 1977.  In support of this position, they referred to the following legal precedents:

AA Euro Recruitment Limited v Padraig Cotter[5], where the Labour Court held that, where a dismissal is in dispute, it is for the complainant to establish “as a matter of probability that his employment came to an end in circumstances that amount to a dismissal as the term is defined in the Act.”

Tom Maher v Eugene Walsh[6], where the former Employment Appeals Tribunal held that an employer speaking sharply to an employee is not sufficient reason for an employee to walk out or presume that they are dismissed.

Parkboro Developments Limited trading as Park Engineering v Mariusz Witkowski[7], in which the Labour Court concluded that,

"A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship.  Obviously, in certain instances it may do so but a relatively trivial disagreement of the sort described does not come anywhere near justifying dismissal in the instant case, in the view of the Court.  Indeed, the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work and, instead, led him to believe that he was being dismissed."

The respondent’s submission notes that the complainant worked for the remainder of the day after his discussion with Mr Giblin.

In McCormack v Dunnes Stores[8], the Labour Court referred to the obligation on an employee to exhaust the company’s grievance procedures to deal with issues of concern.

Conclusion

CA-00065817-001:  Complaint under the Unfair Dismissals Act 1977

It is the respondent’s case that the complainant was not dismissed and that this was confirmed to him by the managing director on March 24th 2024.  His employment ended due to his resignation.  It is the respondent’s belief that the complainant commenced working in a new job on March 26th 2024, three days after he alleges that he was dismissed. 

CA-00065817-002:  Complaint under Minimum Notice and Terms of Employment Act 1973

As it is the respondent’s position that the complainant was not dismissed, but that he resigned, the respondent submitted that no notice of the termination of his employment is due.

CA-00065817-003:  Complaint under the 2019 SEO for the Construction Industry

Mr Coyle said that pension contributions were not submitted to the Construction Workers’ Pension Scheme for the complainant because the directors mistakenly thought that such contributions were optional.  During the course of his employment, the complainant did not request that pension contributions be paid into a pension fund on his behalf. 

CA-00065817-004:  Complaint under the Organisation of Working Time Act 1997

This complaint was referred to the WRC on September 5th 2024 and the respondent referred to the time frame for which I have authority to adjudicate on the complaint, which is from March 6th until September 5th 2024.  It is the respondent’s case that the complainant was paid for his entitlement to the public holidays that fell during that period, although the payment did not include his usual travel allowance.

Evidence of the Health and Safety Officer, Mr Neville McDermott

Mr McDermott said that, on the morning of Friday, March 22nd, he did his usual walk-around on the site at College Square, Dublin 2.  He said that the complainant was working with two colleagues on the top floor, tying a slab.  He wasn’t wearing safety goggles and Mr McDermott said that he approached him and, using the Romanian word for glasses, “occulare,” he told him to put the glasses on.  Mr McDermott said that the complainant immediately “turned sour” and went over to a consaw.  He said that he told him again to put on the glasses, to which the complainant responded, “fuck off.”  The complainant replied, “Paul, if you don’t put on the glasses, I’ll have to speak to Anthony.”  The complainant then put the glasses on his hard hat.

After the morning tea break, Mr McDermott said that he gathered all the employees together for a “toolbox talk.”  He said that he told them that he and Mr Giblin were to be treated with respect and that instructions regarding PPE must be followed.  Mr McDermott said that “the lads were apologetic” and everyone went back to work.

At this point in Mr McDermott’s evidence, the complainant intervened and said, “I was cursing because I was angry, but not saying fuck off to you directly.”

Evidence of the Director, Mr Anthony Giblin

Mr Giblin said that he and the complainant were good friends.  He said that he is an excellent steel fixer and is very good at reading drawings, which are sometimes complicated.  He said however, that the foreman had told him that the complainant was constantly on his phone and talking to others and holding up the progress of jobs.  On one occasion, a foreman reported that the complainant had been on a phone call for an hour. 

On the morning of March 22nd 2024, Mr Giblin said that he met Mr McDermott, who told him what had happened when he approached the complainant and instructed him to wear his safety glasses.  He said that Mr McDermott was upset at how he had been treated.  Mr Giblin said that he went up the access ladder to the top floor and he spoke to the complainant privately.  He said that he told him that his attitude had to change with regard to safety and mobile phone use.  Mr Giblin said that the complainant went back to work and put in a good day.  Mr Giblin said that he thought that he had “got through to him.”

In cross-examination, Mr Marosan asked Mr Giblin why he didn’t invoke the disciplinary procedure to deal with the complainant’s conduct.  Mr Giblin said that his approach is to “talk to the lads” and to get them back on track.  He said that this normally works and that the company has never had to invoke the disciplinary procedure.  He said that he had spoken to the complainant previously and told him to “ease up on the phone.”

Mr Marosan asked Mr Giblin why he didn’t contact the complainant when he wasn’t at work on Monday, March 25th.  Mr Giblin replied that he thought that the complainant had decided that his time was up, and that he had made a fool of himself and decided to leave.  When he sent the text message about being dismissed, Mr Giblin said that he thought he was “playing a game” and he told Mr Coyle that he’ll be in the following day.  Mr Giblin agreed with Mr Marosan that he didn’t phone the complainant to see if he was coming back.  He said that he wanted to see how things played out.

CA-00065817-001:  Complaint under the Unfair Dismissals Act 1977

The most unusual aspect of this case is that the first indication that the complainant’s employment was terminated came from him and not from his employer.  This occurred on Sunday, March 24th, when he wrote to Mr Coyle saying, “I don’t know if you know but Giblin has sacked me Friday.”  At the hearing, I learned that the respondent company, GDC Construction, was established in 2005 and now has 80 employees and that no one has ever been dismissed.  It is apparent from the WhatsApp messages between the complainant and Mr Coyle that Mr Coyle did not know that the complainant had been dismissed, but he knew that there was “an issue with safety and Neville.”  It is my view that, if Mr Giblin had sacked the complainant, it is more than likely that he would have told Mr Coyle, as he obviously told him that there was an issue with the complainant’s attitude to safety.

From the text messages between the complainant and Mr Coyle on Sunday, March 24th, it is clear that the complainant is seeking confirmation that he was dismissed.  I find this a bit odd, because, despite the entitlement at s.14(4) of the Unfair Dismissals Act, to written confirmation of a dismissal, if the complainant was certain that he was dismissed, it seems unlikely that he would need to have it in writing, or, at least that he could have waited until the next working day to make an enquiry.  I find it odd also that he didn’t contact Mr Giblin, who he claims was the person who dismissed him, and who would have been best-placed to confirm what his intention was. 

Another strange aspect of this case is the fact that the complainant didn’t look for his job back.  Mr Coyle is the managing director and more senior than Mr Giblin.  If he was concerned that Mr Giblin had dismissed him, and, if he wasn’t sure if Mr Coyle knew he had been dismissed, it seems to me that the most reasonable thing to do would be to turn up on Monday and speak to Mr Coyle and make a case for returning to work.  It seems that he accepted his dismissal and started another job on the Tuesday following the Friday on which he claims he was dismissed.  A reasonable person claiming that their dismissal is unfair would, in my view, seek to have it overturned.  It is not reasonable for an employee to seek an investigation by the WRC before attempting to resolve the matter with their employer.

In any event, by April 4th 2024, Mr Coyle had written to the complainant and informed him unequivocally that he was not dismissed and that he should return to work.  The complainant claimed that he was humiliated by the approach of Mr Giblin on Friday, March 22nd, and that, “I could not work there any longer.”  If he was upset at what Mr Giblin had to say, and, if there was a suggestion that his colleagues were fed up with him, the place to resolve these matters is in the workplace, and not at the WRC.

I find it odd also that the complainant claims that he was dismissed by Mr Giblin on the morning of March 22nd, and that he was permitted continue to work until the end of the day.  It is apparent from Mr Giblin’s evidence that he spoke to the complainant and told him a few home truths about his conduct and that he asked him to change his ways.  If he had intended dismissing him, it is my view that he would have sent him home after that conversation and he wouldn’t have allowed him to finish out his working day.  The fact that the complainant remained at work for the day, after his conversation with Mr Giblin, leads me to conclude that the meeting did not end with his dismissal.

In his evidence, the complainant said that the first time he was asked to come back to work was in Mr Coyle’s email of April 15th 2024.  The record of emails shows however, that, on April 4th, Mr Coyle wrote to the complainant and said,

“As I said before you were not sacked and nobody said that people don’t like you anymore.

For clarity purposes, on the morning of 22nd March 2024, a safety issue was addressed with you by the Safety Officer.  On that day, it was also necessary to address your mobile phone usage during working hours and it was Anthony who spoke to you about it and advised that this behaviour had to stop.

It is clear that you were not dismissed as you continued working following those conversations.  The company records indicate that you did not report to work on April 25th 2024 (this is a typo and should read March 25th).  You were not instructed not to come to work at any stage.

This email is a confirmation that no dismissal took place and that your role continues to be available to you.

You are expected to report for work as normal effective from tomorrow, 5th April.

Upon your return, any miscommunication that has occurred will be addressed and a written follow up will be issued so all parties have clarity.

I look for forward to your return.

Regards

Vincent Coyle” 

It is clear from this correspondence that the complainant was not dismissed, and that he was expected to return to work.  If he thought he was dismissed, he was expected to have a meeting with the management to address what it was that led him to that conclusion.  The fact that the complainant did not return to work and did not take up the offer to deal with his concerns convinces me that he didn’t want to work for the respondent any longer and that he decided to resign.  This is a perfectly permissible course of action for an employee in these circumstances to take, but it is not permissible to re-shape the facts to construct a complaint under the Unfair Dismissals Act. 

The complainant’s predicament is set out in his response to Mr Coyle in the email he sent to him on April 10th 2024.  He claimed that Mr Giblin told him that his colleagues didn’t like him and that March 22nd was his last day at work.  He said that he felt humiliated and “Because of that, I could not work there any longer.”  It was reasonable, in my view, for the complainant to have felt humiliated because Mr Giblin told him that he had spoken to two foremen about him and they were not happy with his conduct.  In these circumstances, when he was able to find alternative employment, by Sunday, March 24th, it seems that he decided that he could move on and that he wasn’t returning to work. 

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract or, the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

The dismissal of the complainant is in doubt, as he claims that he was dismissed by Mr Giblin on Friday, March 22nd, as opposed to the position of management that he didn’t turn up for work the following Monday, and that he didn’t come back to work when he was requested to do so.  Taking guidance from the premise that a person is dismissed when the circumstancesleave no doubt about the employer’s intention, it is my view that the respondent did not intend to dismiss the complainant.  I am satisfied not only that the respondent did not intend to dismiss the complainant, but that he was not in fact dismissed, and that this was confirmed to him in writing on March 24th, April 4th, April 9th and April 18th.  I am satisfied therefore, that the complainant was not dismissed, but that he resigned after he was admonished about his conduct and he was fortunate enough to find another job.  

CA-00065817-002:  Complaint under Minimum Notice and Terms of Employment Act 1973

As I have concluded that the complainant was not dismissed, it follows that he is not entitled to notice of the termination of his employment by his employer.

CA-00065817-003:  Complaint under the 2019 SEO for the Construction Industry

At the hearing, I was informed that the complainant was a member of the Construction Workers Pension Scheme (CWPS) from the date he first commenced with the respondent in 2017 until he went home to Romania in 2021.  When he returned in January 2022, Mr Coyle said that business was tough and he agreed with the complainant that pension contributions would not be made to the CWPS.  Mr Coyle said that he now realises that it is not an option for an employer or an employee not to make pension contributions.

The timeframe for consideration of this contravention is from March 6th until September 5th 2024, when these complaints were submitted to the WRC.  Effectively, I have legal jurisdiction to consider this contravention of the SEO from March 6th until the complainant’s last day at work, on March 22nd 2024, a period of two weeks and two days.  Due to the seriousness of this failure on the part of the respondent, I have decided to extend the timeframe to May 23rd 2024, when the respondent confirmed to the complainant that they had reached the conclusion that he had resigned.  As it was the responsibility of the respondent to ensure compliance with the pension provisions in the SEO, I intend to direct the respondent to make up the employer’s and the employee’s contribution to the CWPS for the 11 weeks from March 6th until May 23rd 2024.

CA-00065817-004:  Complaint under the Organisation of Working Time Act 1997

The complainant was paid €1,099 gross weekly, plus a weekly travel allowance of €181.00.  Mr Marosan referred to the provision in the SEO that employees who work on a public holiday are entitled to be paid double time plus a day off in lieu.  At the hearing, the complainant said that he didn’t work on public holidays.  For the respondent, Mr Coyle said that the complainant was paid his normal wages for the public holidays, but that the daily travel allowance wasn’t paid.  Mr Marosan submitted that pay for public holidays must be the wages normally paid for days that are not public holidays. 

The weekly allowance of €181.00 for travel results in a daily allowance of €36.20.  In the absence of any legal precedent that indicates that an employee who does not work on a public holiday is entitled to wages and travel allowance, it is my view that this claim is without merit.

CA-00065817-001:  Complaint under the Unfair Dismissals Act 1977

I have concluded that the complainant was not dismissed and I decide therefore, that this complaint is not well founded.

CA-00065817-002:  Complaint under Minimum Notice and Terms of Employment Act 1973

As the complainant was not dismissed, he was not entitled to notice, and I decide therefore, that this complaint is not well founded.

CA-00065817-003:  Complaint under the 2019 SEO for the Construction Industry

I have decided that the respondent was in breach of the Sectoral Employment Order for the Construction Industry which provides that a weekly contribution of €27.35 from the employer and €18.24 from the employee should be invested in the Construction Workers’ Pension Scheme.  The total weekly contribution is €45.59.  I direct the respondent to pay €501.50 into the CWPS for the complainant, equivalent to 11 weeks’ joint contributions. 

CA-00065817-004:  Complaint under the Organisation of Working Time Act 1997

I have concluded that the complainant was paid the wages to which he was legally entitled for the public holidays and I decide therefore, that this complaint is not well founded.

Dismissal in doubt, minimum notice, SEO pension contributions, public holidays