An award-winning treehouse designer has been ordered to pay a carpenter nearly €22,000 for penalising him for taking a personal injury suit over a fall at work, plus another four weeks’ pay in compensation for two breaches of the Terms of Employment (Information) Act 1994.
The Workplace Relations Commission refused to accept, as Plan Eden Projects owner Peter O’Brien had claimed, that it was a “series of coincidences” that the carpenter was taken off payroll and had sick pay stopped the day after notice of the lawsuit was given.
In a decision today, the tribunal upheld a complaint of penalisation taken by the worker, David Keegan, under the Safety, Health and Welfare at Work Act 2005 against Mr O’Brien, after the complaint said he “was being punished for going to his solicitor” over the workplace accident.
Mr O’Brien, who won an award for best small garden at the Bloom garden show in 2018, had denied the complaints.
Giving evidence last month, Mr Keegan said he suffered a “serious knee and leg injury” in a fall from scaffolding at a site on January 17th, 2022 – scaffolding, which he claims was “not erected properly”.
The tribunal heard that Mr Keegan received three and a half weeks’ sick pay from Mr O’Brien after his fall, and shared medical details with him before a solicitor engaged by the complainant wrote to the employer on February 3rd that year accusing him of failing to provide “a safe system of work and sufficient training”.
On February 17th, 2022, two days after the solicitor’s letter was re-sent by email, the tribunal heard, Mr O’Brien wrote to his external payroll company and stated that Mr Keegan “has left us, effective today” – with Mr Keegan’s employment status changing to “ceased” on his Revenue record.
Mr O’Brien said in evidence that his policy had been not to give sick pay – but that he had given it to Mr Keegan “on the understanding that [he] would return to work in the short term”.
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When it became clear Mr Keegan wasn’t coming back as soon as he hoped, he “acted on legal advice” and stopped the sick pay, he told the tribunal.
In legal submissions, Mr O’Brien had disputed that he dismissed Mr Keegan in February 2022.
The employer said that it was a “series of coincidences on 17th February, 2022,″ that saw his payroll contractor informed that the complainant had “left” his employment; that Mr Keegan’s employment registration with Revenue “ceased”, and that the complainant’s sick pay stopped.
“The respondent then accepted that he did in fact dismiss the complainant on 17th February, 2022, but that he had done so in error and had subsequently rectified his error, with retrospective effect, on 8th March, 2022,” adjudicating officer Elizabeth Spellman recorded in her account of his evidence.
The advice he was given was that “all pay issues would be resolved by way of [Mr Keegan’s] personal injury claim”.
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The tribunal heard that further correspondence from Mr Keegan’s solicitors followed seeking clarification on his employment status and the ending of his sick pay, continuing into March, 2022, when Mr O’Brien arranged an appointment with an occupational health doctor and had his solicitor write to state that Mr Keegan was still an employee.
Mr O’Brien said he thought at first that he could take Mr Keegan off payroll and did so on February 17th, 2022, but “realised this was a mistake” which he rectified the following month, and that there was “no malice” in the “administrative error”.
Mr Keegan said he felt he was “being punished for going to his solicitor and for taking a case” and was suffering “a lot of financial stress” because of the stop to his sick pay.
Mr Keegan lodged statutory complaints with the WRC in July 2022, with Mr O’Brien writing to the complainant in January this year, telling him he was winding up the “construction side” of his business and making the complainant redundant.
Mr O’Brien said it was “ridiculous” to suggest he wound down his business and dismissed Mr Keegan later “to penalise him for taking a case”.
In her decision, the adjudicator, Ms Spellman, noted that Mr O’Brien had “revised his position” under cross-examination on the question of Mr Keegan’s dismissal.
She added that because of the “temporal proximity” between the first email from Mr Keegan’s solicitor and the acts of alleged penalisation, and Mr O’Brien’s “changing evidence” she did not accept they were coincidental.
Upholding the penalisation complaint, she awarded Mr Keegan six months’ pay, €21,840, in compensation for the breach.
She awarded another four weeks’ pay in compensation, €3,360, for two breaches of the Terms of Employment (Information) Act 1994 – bringing the total compensation orders against Mr O’Brien to €25,200.
These were in connection with the employer’s failure to provide “any core terms or any statement in writing on the complainant’s terms of employment” and were at “the serious end of the spectrum,” Ms Spellman noted.
