Case Number: ADJ-00022391. Workplace Relations Commission

• Date: 02 December 2019
• Docket Number: ADJ-00022391
• Court: Workplace Relations Commission
• Parties: A General Operative v A Construction Company

Procedure:

These complaints were submitted to the WRC on June 12th 2019, an, in accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977 - 2015, they were assigned to me by the Director General. I conducted a hearing on October 16th 2019 and gave the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant represented himself and the respondent was represented by Mr Michael Connellan, instructed by Ms Kerry Clear, Solicitor. The respondent’s managing director and the foreman from the site where the complainant worked attended the hearing and gave evidence.

Background:

The complainant started work with the respondent on October 9th 2017 as a general operative on construction sites. He was laid off on April 18th 2019 and he claims that the employer used this lay-off as an opportunity to let him go. Although he was offered work by the managing director on May 17th 2019, he decided not to take up this offer and he submitted this complaint to the WRC.

Summary of Respondent’s Case:

CA-00028997-001: Complaint under the Payment of Wages Act 1991 It is the respondent’s case that the complainant was not dismissed and that he was laid off temporarily. When he was laid off, he was paid all monies that were owed to him, including one week’s notice and outstanding holiday pay. Copies of the complainant’s final two payslips were submitted in evidence showing the amounts that were paid to him up to May 3rd 2019. These show that the complainant received his normal week’s pay on Thursday, April 18th 2019, plus payment for one week’s holidays not taken. On Friday, May 3rd, he received two weeks’ pay, plus payment for 23.4 hours’ holidays not taken. CA-00028997-002: Complaint under the Unfair Dismissals Act 1977 At the hearing, the foreman on the Pembroke site said that the complainant was out sick for a few days in March, and when he returned with a cert for light work, he told him that there was no light work on a building site and he advised him to go back to his doctor to see if he was fully fit for work. He said that he was satisfied when the complainant returned to work on Thursday, March 28th, with a cert saying that he was fit to work. A few weeks later, the site where the complainant was working on Pembroke Road, in Dublin 4 was nearing completion. The respondent intended to move him and other workers to a site in Malahide where construction was about to commence. However, due to a delay removing an ESB pole on that site, the start was delayed. Evidence of communications between the ESB and the client was submitted at the hearing. On April 18th 2019, the complainant and two other employees from the Pembroke Road site and three employees from a site on Cowper Road were laid off until work on the Malahide site could proceed. Details of the six employees who were laid off was submitted in evidence. Of the group of six, the complainant and two others are general operatives, two are plasterers and one is a carpenter. A copy of an RP9 was submitted in evidence which was sent to the complainant at the address that the company had on file for him. However, he had moved from that house and he didn’t get the RP9 until it was sent to him by e-mail on May 10th. The RP9 shows that the complainant was laid off on April 18th 2019 by reason of “building projects approaching completion.” The e-mail of 10th from the managing director was in response to a letter from the complainant on May 3rd in which he said that he expected to be paid while he was laid off. The managing director replied: “We had hoped a new site...