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A builder sacked after getting into a fight with an apprentice and breaking his nose has been awarded €966 after the Workplace Relations Commission (WRC) ruled his employer “failed to apply any procedures at all” in dismissing him.
Martin Gilligan made a complaint to the WRC against Derek Daly Construction Ltd claiming he was unfairly dismissed on August 21st, 2020.
An adjudication hearing last month was told the apprentice had just arrived on site at 8.10am that morning when the row broke out.
Giving evidence, Derek Daly said Mr Gilligan “made a remark to the apprentice giving him grief of a personal nature” and the apprentice responded by pushing the complainant to the ground.
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He said Mr Gilligan got up and hit the apprentice in the face, breaking his nose.
Mr Gilligan admitted hitting his colleague but said it was a slap with his open palm.
He disputed making a personal remark and said he only asked the apprentice “if he was in good form”.
Mr Daly said there had been previous incidents between the two men which he characterised as Mr Gilligan “bullying” the apprentice and that he had been forced to intervene on one occasion and get them to apologise.
He said he and Mr Gilligan were related and he didn’t want any bad feeling between them but that he felt he “could not take the risk of having the two men on the site at the same time again”.
He said he fired Mr Gilligan and gave him notice pay.
The apprentice was also let go but returned to employment after returning with his parents and apologising, Mr Daly added.
Compensation
Mr Gilligan told the Commission he was seeking compensation.
Mr Daly said if a large sum was ordered, it would “finish the company”.
The Commission heard that Mr Gilligan was already involved in a dispute with his employer over his rate of pay and was refusing to do blockwork when the row broke out with the apprentice.
Mr Gilligan said he had broken a finger and was unable to do the work on his return from sick leave and that as far as he was concerned he had been hired as a labourer and not to do blockwork.
Mr Daly gave evidence that he gave Mr Gilligan notice of dismissal for this two weeks before the incident.
He said as far as he was concerned, Mr Gilligan was already sacked and that his mistake was “not putting anything in writing”.
The complainant said Mr Daly had pulled him aside a number of times over the blockwork issue and told him on August 18th he would be dismissed if he continued to refuse, but that he had received nothing in writing.
In her decision, adjudicating officer Janet Hughes wrote that without any paperwork to back up Mr Daly’s account, she had to find on the balance of probabilities that Mr Daly had only ever been given a warning about his refusal to lay blocks.
“Consequently, I find that the only actual notice of dismissal was that in respect of the altercation with the apprentice,” she wrote.
But she said the disciplinary procedures followed by Mr Daly on both occasions were unfair in any event.
“There were no written terms of employment, there was no grievance or disciplinary procedure in place and none was followed. The word bullying was used more than once by Mr Daly but he neither had a policy or procedure to address this issue,” she wrote.
“Regrettably, even though the parties are related, reinstatement or re-engagement is not a reasonable option given they have been unable to reconcile their differences at all in the intervening period,” she wrote, adding that the only remedy left open to her was compensation.
She found Mr Gilligan had contributed to his dismissal on the grounds of gross misconduct by “more than 50 per cent” by provoking his colleague.
She added that Mr Gilligan had chosen to work just one day a week to preserve social welfare benefits while waiting for work from another builder.
“That was his choice, but Mr Daly cannot be expected to compensate him for that choice,” Ms Hughes wrote.
She said the most Mr Daly could be awarded would be four weeks’ pay at €2,928.80 but said he was 66 per cent responsible for his own dismissal and reduced the compensation to €966.50.