Handyman found in attic of house where he had recently changed locks awarded €750 for unfair dismissal

A handyman who claimed he “only wanted to go to the toilet” after being found in the attic of a house where he had recently changed the locks has been awarded €750 for unfair dismissal.

Grzegorz Wasilewski and a colleague had been sent by RCPS Property Services Ltd to change the locks at a property in Arklow for Diane Kelly, who runs a separate property management service.

Ms Kelly told the Workplace Relations Commission that she informed the two workers that she would have to be the last person to leave the property. However, Ms Kelly said that after leaving the site, she returned to the property a short time later and discovered both workers upstairs, with Mr Wasilewski in the attic of the house.

Mr Wasilewski said he and his colleague returned to the house because they needed to use the toilet. He said Ms Kelly started “shouting at them” and accusing them of trying “to steal something from the house”.

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The Workplace Relations Commission found that while there was no doubt that the complainant knew the return to the property was “entirely impermissible”, there had been a “rush to judgment” on the part of the employer which was done in a “peremptory and entirely unfair manner”.

Mr Wasilewski was dismissed from his job on August 26th, 2022 following a complaint to Mr Robert Cummins, the managing director of RCPS Property Management Ltd from Ms Kelly.

He sought adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

In evidence during the hearing of the case earlier this year, Ms Kelly told the WRC that after Mr Wasilewski and his colleagues changed the locks on the property, she told them that if they needed to use the toilet facilities they should do so then.

She said she then felt that the complainant and his colleague were “lagging behind”.

After leaving the property, she went to get a coffee but noticed that the van was still outside the house. When she went back to check, she said she found both workers upstairs, with Mr Wasilewski in the attic.

Ms Kelly said she told them to leave and while Mr Wasilewski did so, his co-worker did not. She said the co-worker told her she was “over-reacting” and when she asked about a missing camera the two colleagues “started coughing”.

She said she told the workers that she would ring the Gardai and they both left. She then phoned Mr Cummins to tell him what had happened.

Ms Kelly said she was very shaken by the event and had to ring her husband for support.

Mr Cummins told the WRC that after hearing Ms Kelly’s account of what happened, he instructed the two employees to return to the office and when they did, he told them that what they had done was gross misconduct and they were dismissed.

He said Mr Wasilewski said he and his co-worker had done nothing wrong but did not dispute that they had returned to the property.

Mr Cummins said as far as he was concerned, it was the simple fact that they returned to the property contrary to procedure that was the issue giving rise to the termination.

Mr Cummins said there had been an incident some weeks earlier when he had to speak to the complainant about the importance of not returning to a property in these circumstances.

Mr Wasilewski told the WRC that he did not hear Miss Kelly say that they should not go back into the property.

He said after he and his colleague returned to the work yard the owner took them to the office and asked for the keys of the van. He said this took place in a public place in front of the other staff in the office.

He said he wanted to explain what happened, but he was not allowed to do so. The worker said he was shocked by the decision to end his employment as he “only wanted to go to the toilet”. He said the entire meeting lasted between five and ten minutes.

Upholding the claim, adjudicating officer Pat Brady said there had been “not the slightest indication of compliance” by the company with “anything resembling a fair procedure” in terminating the employment.

He noted that Mr Wasilewski made “a very substantial contribution to the situation” by deliberately returning to the vacated property knowing that this was a breach of a “quite significant” company rule.

However, he found there was no opportunity for the complainant to have his version of the event heard adding Mr Wasilewski was “positively denied the opportunity to do so”.

He said there was a “presumption of guilt” and accordingly, he concluded that the dismissal was unfair and in breach of the Act.

He awarded Mr Wasilewski the sum of €750.