ADJ-00032269 - Workplace Relations Commission Hada Bazil v Marluc Liimited Baltic Interiors

• Jurisdiction: Ireland
• Judgment Date: 29 March 2023
• Court: Workplace Relations Commission
• Docket Number: ADJ-00032269
• Date: 29 March 2023
• Hearing Date: 24 January 2023
• Respondent: Marluc Ltd Baltic Interiors

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). The Complainant was afforded translation assistance, and the translator took an oath to translate truthfully.

Background:

The company operates a painting and decorating business. The Complainant was employed as a painter. It is alleged that the Complainant was dismissed for gross misconduct relating to his failure to adhere to Government health requirements during Covid by returning to work earlier than he should, after returning to Ireland after travelling abroad. The Complainant stated that he was asked to return a day earlier than he should have by his supervisor, who knew that he was abroad and stated that he would be working alone and isolated from others. The Complainant had been employed as a painter and had asked to be placed on the right rate for his trade as per the Sectoral Employment Order for the Construction Industry. The company deny that he was due that rate.

Summary of Complainant’s Case:

Unfair Dismissal CA-00042759-001 The Claimant went on annual leave to Romania from the 28th of August 2020 until the 11th of September 2020. At that time a 14-day quarantine/self-isolation period was required when you travelled abroad and returned home. The company had informed all staff of this requirement in correspondence dated 24th of March 2020. In that communication employees were informed that if they had any queries regarding the Covid measures they should contact the Managing Director. On or about Friday 25th of September 2020 the Complainant was asked by his supervisor to work on site on Saturday the 26th of September 2020. He was told by his supervisor that it was safe to do so as he would be working by himself, and he was due back anyway on the following Monday. The Complainant when contacted by his supervisor when he was on leave was given the impression that it was important, and he should come in. In October 2020 the Complainant queried his wages as he was aware that other painters were on a higher rate of pay. Soon after that query the Company initiated a disciplinary process. In turn this gave rise to an investigation and a disciplinary hearing followed. Arising from that hearing the Complainant was dismissed for gross misconduct. The fact find was carried out by a manager on the phone. The Complainant didn’t understand what was going on as English is not his first language. The disciplinary process was conducted by the accountant. Again, it was not clear why this process was started. He did work at the request of a supervisor. He was told it was safe. No punitive step or discipline was taken against the supervisor. He was told off. No punitive sanction was made against the supervisor, in contrast the complainant was dismissed. CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015 The Complainant was employed as a Painter. The statutory rate of pay set down in the Sectoral Employment Order for the Construction Industry S.I. 234.2017( SEO ) was €18.93. In 2018 the Complainant’s rate of pay was increased to €14.50 from €12.50 per hour. In 2019 the SEO set the rate of pay for a Craftworker as 19.44. The Complainant received certified training in his country of origin and is a skilled craftsperson. The sectoral order applied to the complainant: The section to which the Order should have application is defined as the sector of the economy comprising the following economic activity: · The construction, reconstruction, alteration, repair, painting, decorating, fitting of glass in buildings and demolition of buildings The Respondent has failed to comply with the sectoral order for the duration of his employment.

Summary of Respondent’s Case:

Unfair Dismissal CA-00042759-001 The Claimant went on annual leave to Romania from the 28th of August 2020 until the 11th of September 2020. At that time a 14-day quarantine/self-isolation period was required when you travelled abroad and returned home. The company had informed all staff of this requirement in correspondence dated 24th of March 2020. In that communication employees were informed that if they had any queries regarding the Covid measures they should contact the Managing Director. On or about Friday 25th of September 2020 the Complainant was asked by his supervisor if he wished to work on site on Saturday the 26th of September 2020. The Complainant failed to contact the MD about this request by his supervisor. In failing to contact the MD and attending to work on the 26th of September 2020 he put others at risk of contracting Covid and damaging the business relationship with an important client. In October 2020 the Complainant queried his wages and it then came to light that he in fact worked on the Saturday when he should have been quarantining. In turn this gave rise to an investigation and a disciplinary hearing followed. Arising from that hearing the Complainant was dismissed for gross misconduct. CA 42759-02 Section 13 of the Industrial Relations Amendment Act 2015 The Complainant has failed to particularise their claim with reference to the timeframe of an alleged breach of the sectoral order. In those circumstances the cognisable period is limited to 6 months prior to the complaint being lodged. The Complainant did commence employment as a painter and later tape and joint work. His work was done under supervision. The agreed rate of pay was mutually agreed. The Respondent has met the contractual commitment agreed between the parties. The Complainant does not satisfy the criteria of a Craftsperson having had no certified training in a recognised trade. Even if it was the case that the rate of pay under the SEO should have applied to the Complainant, it was a rate it could not afford. The Respondent wholly denies that the Complainant should be afforded the terms and conditions as set out in the Sectoral Employment Order for the Construction Industry S.I. 234.

Findings and Conclusions:

Unfair Dismissal CA-00042759-001: Redmond in Dismissal Law 3rd edition states at 13.14: ‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had (a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and The employer has stated that the process followed by them was fair. In their submission the Respondent has referred to several cases where the courts held that a procedural flaw alone cannot make a dismissal unfair. [ Circuit Court in Elstone v CIE...