LCR21066

FULL RECOMMENDATION

CD/15/267

RECOMMENDATIONNO.LCR21066

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

EMBANKMENT PLASTICS LIMITED
(REPRESENTED BY BEATTY HEALY SOLICITORS)

- AND -

A WORKER
(REPRESENTED BY BERWICK SOLICITORS)

DIVISION :

Chairman: Mr Haugh
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Dismissal

BACKGROUND:

2. This case concerns the Worker's claim that the was unfairly dismissed. On the 18th August, 2015 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.

A Labour Court hearing took place on the 15th October 2015.

WORKERS 'S ARGUMENTS:

3. 1. The Worker was expected to start work 30 minutes ahead of his shift every day and in addition to that he was required to stay two hours after close of business every day. This was in addition to his regular contracted hours.

2. The Worker was left unemployed for a long number of months as a result of his dismissal.

3. The Worker was never made aware that there was any issue with his performance that would lead to disciplinary action.

EMPLOYER'S ARGUMENTS:

4. 1. The Employer was disappointed with the performance level of the Worker, and felt that he was performing below the expected standard of a Quality Engineer.

2. The Worker had been late arriving to work on some occasions and had been late on his first day.

3. The termination of the contract was in accordance with the terms contained in the contract .

RECOMMENDATION:

1. The Claimant commenced employment as a Quality Engineer with the Respondent on 16 February 2015. The Claimant’s employment was terminated on 27 April 2015 and the Claimant was paid in lieu of one week’s notice.

2. The Respondent’s submission is that the decision to dismiss the Claimant was justified on the following grounds:
- a. The Claimant’s performance was below that expected of him;
  b. The Claimant had been late arriving at work on “some occasions”;
  c. The Claimant refused to comply with the Respondent’s Managing Director’s instruction to work additional hours, over and above his contractually agreed hours of 7.30 a.m. to 4.00 p.m., “for a limited period, to familiarise himself with his role as quickly as possible”.
3. The Claimant’s case is that he was informed by the Managing Director that he would be required to work up to 2.5 hours of unpaid overtime per day for an undefined period of time; that no reason or explanation was given to him for this requirement to work additional hours; and that when he requested an opportunity to consider the request he was dismissed immediately and paid in lieu of notice. The Claimant also submits that he was late on one occasion i.e. his first day of employment but that this was by agreement as he was travelling from the UK on that date and that he left work early on one day, having given notice of this to employer, to deal with a family medical emergency.

4. On questioning of the Parties’ legal representatives, the Court was informed that the Respondent had neglected to apply the following fundamental requirements of fair procedures in its dealings with Claimant:
- a. At no stage did the Respondent issue the Claimant with a letter outlining its concerns with the Claimant’s alleged underperformance;
  b. The Claimant was not on advance notice that the meeting he attended on 27 April 2015, and at which his employment was terminated, was a disciplinary meeting;
  c. The Claimant was not advised of his right to be accompanied and/or represented at the meeting of 27 April 2015;
  d. The Claimant was not given advance written notice that he was at risk of having his employment terminated at the aforementioned meeting;
  e. The decision to dismiss the Claimant was communicated by the Managing Director in the course of an uninterrupted meeting on 27 April 2005 such that there is no evidence of the Managing Director having taken a break in proceedings to reflect on anything the Claimant may have said in defence of the allegations put to him at the meeting;
  f. The Claimant was not issued with a letter of dismissal confirming the reasons for his dismissal and advising him of a right of appeal.
5. The Respondent seeks to rely on the following provision of the Claimant’s contract of employment:
- Probationary Period
  The first 6 months of your employment will be probationary. This probationary period may be extended if deemed appropriate by Embankment Plastics but will not exceed eleven months in total.
  During or at the end of your probationary period, the Company may terminate your employment by giving you one week’s notice or payment in lieu of such notice. The Company’s disciplinary procedure shall not apply to any dismissal during the probation period (or any extension thereof).
6. Counsel for the Respondent drew the Court’s attention to a series of meetings that took place between the Complainant and the Managing Director during March and April 2015 (a number of which are not referenced at all in the Respondent’s written submission to the Court) at which the Respondent’s concerns with the Claimant’s performance and the reasons for the Respondent’s requirement that he work additional hours were allegedly put to the Claimant such that he was fully on notice of the Respondent’s position prior to the meeting of 27 April 2015.

Recommendation

The Court has carefully considered the written and verbal submissions of the Parties. There is a clear conflict of evidence between Parties in relation to the content of the discussions that took place between them about the Respondent’s instruction to the Claimant to work additional hours in excess of his contractually agreed hours; there is also a disparity in their positions as to when certain of those meetings took place. Having regard to the egregious breaches of fair procedures that occurred in the process that culminated in the Claimant’s dismissal, the Court does not need to attempt to reconcile the Parties’ differing accounts of those discussions.

In all the circumstances of this case, the Court finds that the Respondent’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000) because the Claimant was on probation was misconceived.

The Court recommends that the Respondent pay to the Claimant compensation of €33,419.38 having regard to Claimant’s financial loss arising from his dismissal. The Claimant was unemployed for a period of 17 weeks during which period his loss was €16,419.38; he is earning some €17.000.00 per annum in his current employment than he did with the Respondent.

The Court so recommends.

Signed on behalf of the Labour Court

Alan Haugh
CO'R______________________
23rd October 2015Deputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Clodagh O'Reilly, Court Secretary.