Complainant

Respondent

Parties

Krzysztof  Bonarek

Sean Doyle Windows Ltd.

Representatives

Darach McNamara BL  E.M. O'Hanrahan Solicitors

Killian McGovern BL Crushell & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00070968-001

20/04/2025

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

CA-00070968-002

20/04/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00070968-003

20/04/2025

The Complainant is employed with the Respondent since 1st February 2023.

The Complainant is a door serviceman Technician. He reported the braking system on the company van was not working properly to Sean Doyle Jnr. He was told it would be attended to and to continue using the van. The Complainant raised it again as it was impacting the vans’ ability to stop. The van was then booked in for review with a mechanic on 2nd December 2024. The Complainant was told he could have a mechanic look at the van, if he was still concerned.

The Complainant brought the van to his own mechanic who said it was in poor repair, and various parts needed to be replaced due to wear and tear. When the Complainant informed Mr. Doyle, he became irate and accused him of delay in providing the information.  He was told later that day that he was being laid off “because things went rogue between us there will be no more work for a few weeks”. He was then told there was no accommodation for him at the upcoming staff Christmas party which invitation he had already accepted, and he should not attend. By email on 13th December 2024 the Complainant asked when he would be rostered to work next complaining that his layoff and non-payment was unfair. He noticed his job had been advertised.

On 28th November 2024, the Complainant “ceased employment” with the Respondent.

CA-00070968-001

The Complainant did not receive any terms and conditions of employment in writing as required by the Terms of Employment (Information) Act 1994.

CA-00070968-002

The Complainant says the Employer has purported to lay-off the employee unlawfully and in breach of his contract of employment as there was no clause entitling lay-off or circumstances allowing lay off. The Complainant did not consent to the lay-off. As the Employee has not been dismissed nor laid-off, he is entitled to payment of wages of 800 euro gross per week from 22nd November 2024 and 1st March 2025 when he obtained employment elsewhere.

CA-00070968-003

The Complainant says he was laid off because he complained about the defective braking system on the company vehicle which he was required to drive.

Without prejudice to the above, if the Adjudication Officer is satisfied that the Complainant was dismissed rather than laid off, this also constituted penalisation linked to the complaint about health and safety in the workplace.

S27(1) of the Safety Health and Welfare at Work Act 2005 provides:

“penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Penalisation includes S27 (2) (a) suspension, lay-off or dismissal or the threat of..

S27 (3) An employer shall not penalise or threaten penalisation against an employee for-

….

(c ) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work…

The Complainant submits he was penalised by laying him off or dismissing him when he raised safety concerns with the Respondent. Pursuant to S13 of the Act, employees have a duty to take reasonable care for their own safety, health and welfare at work and to report safety risks at work. The Respondent has breached the Act.

The Respondent is a window supplier dedicated to delivering quality, reliability and skilled craftsmanship across the country.

The Complainant commenced employment as a Door Service Technician on 1st February 2023. His employment was terminated on 22nd November 2024.

The Respondent says the complaints are frivolous or vexatious and are legally misconceived. The Respondent had a number of complaints regarding the performance, professionalism and demeanour of the Complainant. An incident arose on 21st November 2024 which led to the Complainant exiting the organisation when a heated discussion transpired between the Complainant and Sean Doyle Jnr, and it was agreed by both that the Complainant’s role was no longer viable. The Complainant was dismissed by the Respondent for performance related issues on 21st November 2024. The Respondent had arranged for brake pads to be replaced on the company van on 22nd November 2024 at a local garage in Athlone.

The Complainant expressed a preference to arrange for the repair closer to his house. A number of customer appointments were scheduled for that day and customers called to complain that no service technician attended as arranged. The Complainant failed to make contact with the company in accordance with his contractual obligations. Despite five attempted phone calls and a text message from Mr. Doyle Jnr no response was received. The Complainant remained at home and did not communicate with the company.

When Mr. Doyle contacted the garage directly, he was informed the repair cost would be approximately 1,300 euro and it would take a full day to complete. None of this information had been provided to management.

On 28th November 2024, Mr. Doyle informed the Complainant that due to the loss of a number of contracts, there would be insufficient work for three Service Technicians. Only two positions remained viable. As the Complainant was the most recent appointee and given the concerns around his reliability, he was informed his employment would be terminated with immediate effect.

The Complainant agreed to an immediate termination of employment on condition he was provided with a reference, which was then provided. There is no right to a claim under the Payment of Wages Act 1991. The Respondent denies any causal link between the Complainant’s health and safety concerns and termination of employment. The failure of the Complainant to present the vehicle for servicing in a manner agreed, contributed to the Respondent forming the position to maintain the Complainant’s employment may put the safety health and welfare and well-being of other employees in jeopardy. The legal strategy is misconceived and is an attempt to artificially inflate the value to a potential claim by erroneously inferring the Complainant was on lay-off when all other evidence indicates otherwise.

The Respondent relies on the decision in Nowak v Data Protection Commissioner when Birmingham J states “frivolous, in this context does not mean only foolish or silly but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome” and Goode Concrete v CRH plc stating the Plaintiff’s right to access the Courts is not absolute in order to prevent injustice to a Defendant.

The Respondent confirms it was an oversight not to provide a statement in writing and concedes liability on this claim.

I have heard and considered carefully the submissions of the parties and evidence of the witnesses at the hearing.

CA-00070968-001

The Complainant was employed with the Respondent from 1st February 2023 until 22nd November 2024. It is accepted he did not receive any terms and conditions of employment in writing as required by S3 of the Terms of Employment (Information) Act 1994.

The complaint is well founded. I direct payment of two weeks wages of 800 euro gross total of €1,600.00 as compensation by the Respondent to the Complainant.

CA-00070968-002 & CA-00070968-003

The Complainant is a non-national and was employed as a Door Service Technician.

An incident occurred in November 2024, when the Complainant arranged for some problems with the company van to be assessed by a local mechanic. The Respondent says the Complainant did not inform customers and reschedule his deliveries that day. The Complainant was uncontactable by the company who were receiving complaints from customers. The Complainant said Sean Doyle Jnr spoke to him that day, and he told him he was laid off. The Complainant believes he was laid off due to the concerns he raised about the van.

The Respondent denies penalisation of the Complainant due to raising health and safety concerns. They produced evidence of numerous repairs to the company van for the Complainant during this period which they say is normal due to the usage of the company van. The Respondent says Mr. Doyle Jnr informed the Complainant on 22nd November 2024 he was being let go due to a downturn in work and his unreliability was a factor.

On 13th December 2024 the Complainant messaged Mr. Doyle Jnr about his lay-off asking when he will be rostered to work as he was unpaid. He pointed out that the Respondent was advertising his job at the time.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that 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 to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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.

Section 6 (1) (7) of the Act provides 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 as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (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 S14 (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.

The onus rests on an employer to show there were substantial grounds justifying a dismissal, and it results wholly or mainly from the grounds set out in S6 (1).

There was no evidence given by the Company of any disciplinary procedure being carried out with the Complainant following the incident in November 2024. Neither was there any evidence of consultation in relation to redundancy, notice of redundancy and lay-off with the Company employees. There was no correspondence from the Company to the Complainant confirming terms of lay-off or notice of redundancy which is unusual. Given the Complainant is non-national, there is a greater responsibility on an employer to ensure that the procedures used are clearly explained and understood by the Complainant as set out by the Labour Court. The Complainant was under the misapprehension he was on lay-off during this period.

I find the Complainant was unfairly dismissed on procedural grounds. The dismissal amounts to penalisation within S27(1) of the Safety Health and Welfare at Work Act 2005 following from his complaints about the safety of the company van. The complaint is well founded.

The Complainant suffered financial loss from 22nd November 2024 until 1st March 2025 of 800 euro per week, and I direct payment of €11,200 euro gross compensation to the Complainant by the Respondent.

The Respondent accepts the Complainant was not paid his contractual four week’s notice and is arranging to pay this.

Pursuant to the Payment of Wages Act 1991, I find the complaint is well founded. I direct payment of €800 euro gross one week’s notice together with compensation of net one week’s wages €662.00 by the Respondent to the Complainant.

CA-00070968-001

This complaint is well founded. I direct payment of two weeks gross wages of €1,600.00 euro as compensation to the Complainant by the Respondent.

CA-00070968-002

I find the complaint is well founded. I direct payment of €800 euro gross one week’s notice together with compensation of net one week’s wages €662.00 by the Respondent to the Complainant.

CA-00070968-003

The complaint is well founded. I direct payment of financial of €11,200 euro gross compensation to the Complainant by the Respondent.