Unfairly dismissed worker denied extra €72,000 compensation for building inflation costs
Posted on 11th May 2022 at 21:07
Worker claimed he had delayed mortgage application after job terminated
A worker who said he delayed applying for a mortgage after his employment was unfairly terminated has been denied an additional €72,000 in compensation sought for “inflation in construction costs”.
The Workplace Relations Commission (WRC) did, however, award Conor Hynes €24,840 for his unfair dismissal by Heneghan Premier Services Ltd of Turloughmore, Co Galway.
The WRC found Mr Hynes’s employment was unfairly terminated after he made a protected disclosure about a lack of PPE for workers going into private homes during the Covid-19 pandemic.
Michael Kinsey BL appeared for Mr Hynes at a hearing on 24th February this year, instructed by solicitor Elaine Bannerton, and said the arrival of Covid-19 in Ireland in the spring of 2020 left his client concerned as he understood the virus to be “quite lethal”.
Mr Hynes and other colleagues raised concerns about having to go into people’s homes without appropriate PPE, he said.
“What that effectively meant was that people who raised these concerns were chosen for lay-off,” counsel said. This included his client.
Mr Kinsey said when Mr Hynes protested he was told: “Well you’re the one who’s kicking up.”
He said the Supreme Court had ruled that an employee raising a concern about his own safety was a protected disclosure and a dismissal on that basis was unfair.
He said following his lay-off Mr O’Brien had been made redundant in July 2020 in an “utterly flawed procedure by the respondent … never a meeting, never an offer of alternatives”.
“[The reason for] both his choice for layoff and for redundancy and dismissal was the protected disclosure,” Mr Kinsey said.
He told adjudicating officer Peter O’Brien that meant his jurisdiction to award compensation therefore increased from a maximum of two years’ salary under the Unfair Dismissals Act to five years’ pay under the Protected Disclosures Act.
“His plans at the time were that he was building a house with his wife. His intent was to apply for a mortgage but didn’t manage to do that,” he said.
“When he did manage to get his finances in order, the price of the building he was going to put up in 2020 [had] gone up,” he said.
The extra cost of building materials meant it would cost €72,000 plus VAT, the WRC was told.
He said compensation for losses should not be limited to his client’s loss of earnings, but “any actual loss and any potential loss” and the loss from inflation in construction costs was directly linked to his dismissal.
The company was not initially represented at the remote adjudication hearing in February and it proceeded on the basis that the complaint was not contested. However, the hearing was joined later by HR consultant Denise O’Brien of Watch Your Back Ireland on behalf of the company.
Ms O’Brien said no representative of her client was going to appear to give evidence and sought to submit documentary material instead.
Mr Kinsey said his solicitor had received a document outlining a “timeline of redundancy” but argued it should not be accepted by the commission.
“It appears there are no witnesses here for the respondent. Since Zalewski [a Supreme Court ruling on the WRC and the administration of justice] it is not enough for an employer to send in documents … that evidence has to be given by witnesses or it’s not properly before you,” he told the adjudicator, Peter O’Brien, in objecting to any further adjournment of the matter.
“The only reason you’d have is that the respondent hasn’t turned up. He’s turned up, he’s provided a witness,” he said, adding there was “no evidence” before the adjudicator from the company.
“I actually would agree,” Ms O’Brien said. “I don’t think there’s a difference.”
The adjudicating officer said recent WRC cases had indeed established the principle that “a complainant has to be available for examination and cross-examination in an unfair dismissal case and the same goes for a respondent”.
The adjudicator suggested that if the respondent was willing to pay Mr Hynes’s costs for a second hearing date he would consider an adjournment.
“I don’t think it would bring anybody else,” Ms O’Brien said.
“I’d say you’re in a difficult situation, Ms O’Brien,” Mr O’Brien added.
Mr Kinsey said a claim was made in the “redundancy timeline” document sent to his solicitor to the effect that his client had gone on lay-off by choice.
He said his client would swear that was “utterly false” and it should not be admitted unless the employer was prepared to say so under oath.
“I really do think even if it’s rescheduled you won’t get them here,” Ms O’Brien said of her clients.
“I won’t be rescheduling, I’ll tell you that now,” Mr O’Brien said.
In a decision published on Wednesday, the adjudicator Mr O’Brien ruled that in the absence of a defence by the respondent company, he had “no alternative” except to deem the termination of the employment unfair.
He also found that Mr Hynes had made a protected disclosure by saying employees needed “proper protective equipment” for working during the Covid-19 pandemic in the absence of any contrary evidence.
But the adjudicator noted that although he had evidence before him of a price increase of €72,000 plus VAT in the cost of building materials, Mr Hynes had submitted “no evidence of any commitment to commence building prior to [his] dismissal”.
“On that basis I have decided to exclude this element of loss from my decision as I did not see enough evidence that it was ‘just and equitable’ to include it,” he wrote.
Mr O’Brien awarded Mr Hynes €24,840 for his losses arising from the unfair dismissal.
He noted the complainant had not submitted any details of a redundancy payment and ordered that any such payment be deducted from the compensation payable.
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