­­­­

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002962

Complaint/Dispute for Resolution:

Date of Adjudication Hearing: 19/07/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 commenced work in one of two retail outlets operated as part of a franchise by his employer, although they operated as separate legal entities. He commenced work in one of them on November 11rh 2015 and was asked by the respondent to transfer to another some kilometres away.

As it happens, this suited him as it was nearer to his home and he asked to be assigned there on a longer term basis.

This was agreed on a trial basis. However sometime around March 21st his name was omitted from the roster and this ultimately led to the termination of his employment.

Complainant’s Submission and Presentation:

In his evidence the complainant stated that on March 17^th 2015 he was advised by his supervisor to focus better on his work and in particular in relation to accuracy on the till. There had been a recent mistake made in relation to the till (although it was not stated that this was attributable to the complainant).

The following Sunday he telephoned the shop to inquire about his roster to be told by a co-worker that he had not been rostered. On the following day he went to the shop and spoke to the supervisor who told him he had been taken off the roster.

He then sent one of a number of text messages (these were displayed in evidence) to the shop owner who referred him back to the supervisor, even though it was known that the supervisor was not available.

The following week, on March 24^th the complainant contacted the supervisor again who asked him to call to the shop and he confirmed that he ‘had no work for him’. He also told him that he ‘kept making mistakes’.

The complainant raised why he had asked him to come in person to be told this and the supervisor said he preferred to do this in person. He said that this was a joint decision made by himself and the owner.

In summary, he was given no work between March 17^th 2015and his termination of employment, approximately one week later. Somewhat inexplicably, the complainant received a further text from the owner on March 27^th asking him to call to the first shop in which he was employed for further training.

Respondent’s Submission and Presentation:

The respondent did not attend the hearing but had submitted a response in writing which was put to the complainant at the hearing.

In this he claimed that the omission of the complainant from the roster was ‘accidental’ and that he had never been dismissed.

In relation to the complaint under the Terms of Employment (Information) Act the respondent did not dispute the complaint.

Conclusions and Findings

The complainant had less than four months service and therefore falls outside the service requirements of the Unfair Dismissals Act. This exempts an employer from having to justify the dismissal in the terms required by that Act.

In this case, the respondent consented to the hearing under the Industrial Relations Act and entered a response in writing to the claim, but did not attend the hearing. I am satisfied that the respondent was properly on notice of the hearing.

While the short service of the claimant in this case places him outside the ambit of the Unfair Dismissals Act, as noted, it does no exempt an employer from the responsibility to apply rudimentary standards of fairness and respect to its employees.

These include a certain level of openness, clarity and candour with the employee about their position and any risk which may arise to their continued employment This extends to the elementary courtesy of a conversation with them about their position and any improvements which might be required, if that is a factor, as there was some suggestion it was in this case.

I do not accept the contention in the written submission of the employer that the exclusion of the claimant from the roster was ‘accidental’; all the evidence points decisively in the other direction. The employer had every opportunity to clarify the position in the week to ten days following the original omission and failed to do so. Indeed the respondent put the claimant to considerable inconvenience by their failure to do so.

In its submission to the WRC the employer submitted that ‘in all my 29 years of retailing I have never experienced a staff complaint’. If this case is a measure of the employer’s approach to handling staff matters that must be regarded as somewhat fortunate.

Accordingly, I find that the termination of the claimant’s employment was unfair in that not even elementary fairness and respect was shown to him during the process.

The complaint under the Terms of Employment (Information) Act was not contested.

Decision:

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

In respect of the complaint under the Terms of Employment (Information) Act I award him €700 being just under four week’s wages.

In respect of his complaint under the Industrial Relations Act I recommend he be paid €2,000, being approximately three month’s wages for the breach of his rights to fair treatment.

Dated:   5^th October 2016