ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Decision Reference: ADJ-00000353

Complaint/Dispute for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00000365-001	21/10/2015

Venue: Ashdown Park Hotel, Gorey, Co Wexford

Date of Adjudication Hearing: 01/04/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Sec 13 of the Industrial Relations Acts following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background

The Complainant was employed as an Oil Delivery Driver from 8^th September 2015 to 9^th October 2015. He was paid €525.00 per week. He has claimed that he was wrongfully dismissed. He has sought reasons why he was dismissed and compensation for loss of his job.

Complainant’s Submission and Presentation:

I am Contacting you After quite an unsavoury time with the Respondent. I had left a full time position to start employment on the 08/09/2015. This Position was primarily to deliver home heating oil to domestic and commercial premises. I had applied for this job through a recruitment agency. I had an interview with them first and they put me forward for the job. My second Interview was conducted by Operations Manager. He Told me that there was a need to be flexible with the demand in the winter months and I could be working Saturdays and the odd Sunday. He also stated that I would not be paid for the Saturday and instead I would receive a day off instead. I did Not Have Any Experience with delivering oil. However I did have all the relevant qualifications. I also had no experience driving oil tankers although I have all the qualifications. I started work on 8th September for training with another Driver. I had in total 9 days training with none of those days driving the actual tanker. On the Saturday 19th The Operations Manager told me He wanted me to go out on my own to do deliveries. I found this to be daunting as I felt I had not received the proper amount of training to be safe and competent . On the 29th I was asked to do an afternoon shift I agreed. I was told that the truck would be available from 12pm I rang the other driver and he said he would not be finished till 4.30. I informed the manager that I was unable to work and that his request was unreasonable I finished the week up to 2nd Oct assisting another driver. I did not hear from the Respondent until 6th of October 4 days later stating that "sorry but it’s not working out" and that I was to return my uniform and keys. No verbal warning, no written warning nothing. I am now without a job. When I asked him for a reason he stated that my driving was not up to standard that I parked the tanker somewhere i had no authority and that I would not work nights delivering oil to peoples’ homes. I asked him to reconsider his decision. This dismissal seems to be based on no grounds only that I could not work the hours that particular day and fails to comply with any dismissal procedures. He got a job on 10th November to 12th February 2016 and has not worked since. He is seeking the reasons for his dismissal, an explanation why procedures were not applied, that probation training was not sufficient, compensation for loss of his job.

Respondent’s Submission and Presentation:

This claim is rejected. His employment was terminated because he failed his probationary period. He failed to report for work on 28^th September 2015, failed to return the vehicle to the correct location on 29^th September 2015 and failed to reach his daily quota on a number of shifts. The company probation procedures state that it is at the discretion of the company to terminate the employment.

After he commenced employment on 8^th September 2015 he spent 9 days in training comprising of technical training and safety delivery procedures. Two very experienced drivers carried out this training. On 19^th September he commenced on his own and contrary to his statement he raised no issue with that. Between 21^st to 26^th September he failed to meet the order fulfilment quota of 15 deliveries per shift. He was spoken to on 23^rd September about this. From 30^th to 2^nd October he was given further training. At no stage did he raise concerns about his role. He failed to attend work on 28^th September and did not contact the company. A member of management had to contact him and he stated that he couldn’t arrange childcare. 12 orders were lost that day. On 29^th September he failed to return the vehicle to the correct address. This resulted in a two hour delay the next day. .

On 5^th October he was informed that his employment was being terminated and that he would be paid in lieu of one week’s notice.

He was dismissed because he failed his probationary period. This was reasonable under the circumstances. He had been made aware of the concerns about his employment. He was not unfairly dismissed.

Findings

I note that this was a very brief employment and that the Complainant was on probation.

I note the conflict of evidence in this case.

On the balance of probability I find that the Complainant struggled with this employment.

I accept the Respondent’s evidence that he failed to achieve his daily quota, failed to attend work without notice on September 28^th and failed to return the vehicle to the agreed location.

I accept that he was spoken to by the Operations Manager.

I note that 9 days training is the norm and that some drivers achieve it in 5 days.

I am satisfied that the Complainant failed his probationary period and that the Respondent was entitled to terminate the employment.

However I have concerns about the procedural fairness of this termination.

Even though he was on probation he is still entitled to fair procedure.

I find that the Respondent should have confirmed their concerns to him in writing so as to avoid any possible misunderstanding, pointing out the distinct possibility of termination of employment.

I also find that his employment was terminated over the phone, which is unacceptable.

I find that the termination lacked procedural fairness and natural justice.

Decision/ Recommendation:

Section 41(4) of the Workplace Relations Act 2015 under Sec 13 of the Industrial Relations Acts requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent was entitled to terminate this employment while on probation because of the Complainant’s failure to achieve the required standard of performance.

I recommend that the Respondent pays the Complainant €500 (five hundred) for the unfairness associated with how the termination was implemented.

This is to be paid within six weeks of the date below.

Eugene Hanly

Adjudication Officer

Dated: 12/05/2016