ADJ-00003659

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00003659

Complaints and Dispute for Resolution:  

Date of Adjudication Hearing: 4 October, 2016 and 5 December, 2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle 

Procedure: 

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

Attendance at Hearing:

Complainant’s Submission and Presentation: 

The complainant submitted that he had been invited to join the respondent business in September, 2015. Prior to this, he had been unemployed .He worked a variety of hours and was paid on average a sum between €502.50 and €678.23 per week. He worked from 7 September 2015 to 17 April 2016, when he was summarily dismissed by the respondent .His claim before the WRC was for an Unfair Dismissal and Minimum Notice. The complainant presented his case alone on Day 1 and he was not in attendance on Day 2 of the case.

He told the hearing that he worked without incident, until some time in February/March 2016, when he was not paid when the respondent was out of the country. He was partnered on the boat with Mr B and they both raised the issue and were subsequently paid.

The nature of the work involved hauling tonnage of Mussels ashore pending their transportation by lorry to their intended destination. There were problems surrounding this transportation and the arrangement for the retrieval of mussels from the boat and their porterage was ad-hoc. There had been a nominated driver assigned to the task but he had finished work. The complainant did not hold either a crane or a Lorry licence.

On Friday, April 15, 2016, the mussels were stacked at the pier awaiting porterage at 2pm. This was done with speed as the boat was leaking water and they were without a life raft. The complainant texted the respondents son to bring out the lorry. The complainant and Mr B waited there until 4 pm, the Lorry did not arrive. The respondent called him at 5pm, wondering where he was and the complainant explained that he was at home and unable to help further as he was unable to operate a crane or drive a lorry. The respondent stated that he could not contact Mr B.

On Sunday, April 17^th 2016, the respondent phoned the complainant and terminated his employment by phone. The complainant contended that he was unfairly treated. He did not have a contract of employment and had been unemployed since that date. He had made repeated efforts to find work, to no avail.

The complainant submitted that he had cause to attend the pier on the 18^th of April and noted that Mr B was now partnered with a new employee and the life raft had been added to the boat.

On 20^th September, 2016, he received a letter from the respondent seeking to address his complaints to the WRC.

“Following on from your complaint to the WRC I have examined this issue in greater detail. I have now become aware that there was an error in payroll department and that you should have been paid one week wages in lieu of notice. To this end I enclose a cheque for €678.23 in full an final settlement of your claim based on the average hours worked by you over the course of your employment “

The complainant did not accept that this gesture disposed of his claims .He asked the adjudicator to consider all the claims. The cheque was dated 18 August 2016.

He sought compensation in resolution of the dispute. 

Respondent’s Submission and Presentation: 

The respondent presented his case alone on Day 2 of the Hearing. I accept that the respondent had not been properly notified so as to ensure his attendance on Day 1 of the hearing. The complainant did not object to the resumed hearing date, he did not attend.

The respondent has been in the Fishing Business for over 40 years. During this time, the respondent informed the hearing that the business had enjoyed the highs and lows of trading in the export market .The respondent confirmed that the claimant was an experienced Deck hand who had worked in a neighbouring Salmon Farm in the bay .He was recommended to him by another staff member.

The respondent gave evidence that the business had gone through a significant restructuring exercise and continued to trade in a very challenging environment.

He confirmed that the claimant had commenced work in September 2015, where he was paid €15.00 an hour at the complainant’s request. The respondent secured a crane training session for both Mr B and the complainant. Mr B was the boss on the boat and the complainant did not complete the training in or around January 16/17^th 2016. The complainant returned his attendance on the course for payment purposes.

The respondent was uneasy with the claimants returned time sheets, which were completed by Mr B. The respondent did not sign these time sheets in his own hand.

The respondent referred to the complainant’s reference to not being paid in February 2016. The respondent explained that Mr B and the complainant had refused to align their salaries for payment purposes to the respondent’s bank. Tension was growing in light of this non cooperation. The wages were received the following Wednesday.

On the 15 April 2016, the respondent submitted that the claimant had returned 5 pm finish on his time sheet but had finished work at 1pm that day .The time sheet was changed to 4 pm .The respondent stated that he was disappointed when the complainant refused to come in to address the loading of the 12 tonnes of Mussels . The respondent moved the mussels out himself.

He reflected on this episode over the weekend and formed the view that taking everything into consideration, the claimant was not working out on his probation. He confirmed that he terminated the complainant’s employment by phone on the Sunday morning, April 17 .It was a short conversation and there were no arguments .The life raft referred to in the complainants account was being serviced and was restored on the craft by the Monday.

In answer to questions from the Adjudicator , the respondent stated that he did not utilise the Disciplinary procedure due to fear of sabotage The company had hosted a visit from the WRC Inspectorate on 5 October 2016 and no issues were raised .

In conveying his views on how the Dispute might be resolved under Section 13 of the Act , the respondent stated that he would not re-employ the complainant and he saw no basis for an award of compensation . The company was in a precarious state and had a series of serious debts.

When pressed on the identity of the complainant’s replacement, the respondent could not give details to the hearing.

Decision:

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

Section 13 of the Industrial Relations Act, 1969 permits me to investigate a dispute and make recommendation to the parties. Section 11 of the Minimum Notice of the Terms of Employment Act, 1973 provides for me to make a decision with regard to the complaints before me.

On the first day of the hearing, there was no attendance on or behalf of the respondent. I heard the claimant’s case .Subsequently, documentation issued from the respondent confirming that he had not been on notice of the hearing and I decided to resume the hearing. I invited the claimant to attend .On the day of the second hearing, I contacted the claimant who informed me that he was not attending the hearing and “I had his side of the story”. I recounted a summary of the outline of the claimant’s case as shared on the first day of the hearing with the respondent .

I have listened carefully to the detail submitted by both the complainant and respondent. I find that the claimant enjoyed his job and was grateful for the opportunity to start work following a short period of unemployment. The respondent initially considered that he had hired a hard working Deck hand. He changed his opinion of this over the course of the complainant’s employment.

The complainant did not have the necessary service to ground an unfair dismissal claim under the Unfair Dismissals Acts. He wished to see a resolution for his unfair treatment as he was experiencing difficulty in securing another job.

I have considered the September 20^th letter which emanated from the respondent in this case and its stated objective as constituting a compromise agreement of the claims .A compromise agreement requires an employee and an employer to agree to a mutually acceptable resolution of a dispute .It is usually prefaced by Legal/Union advice to the respective parties and concluded by joint signatures in agreement .Sunday Newspapers ltd. V Kinsella and Brady [2006] ELR 325 applies.

A compromise agreement must have dual sign up from the parties; it is not acceptable to arbitrarily impose an implied agreement. I am satisfied that the complainant did not settle his case on foot of the September 20^th letter.

.However, I find that the respondent has discharged his statutory responsibility on the Minimum Notice claim without prejudice to the claim under the Industrial Relations Act .The complainant withdrew CA-00004391-003 and CA-000004391-004 at the hearing.

The respondent contended that he made a decision to terminate the complainant’s employment within the parameters of the Probationary period. He submitted a template of a contract where this clause was highlighted.

“ For new employees , your employment will be probationary for the first 6 months .The probation may be extended at the company’s discretion , but will not , in any case exceed 11 months Termination of this agreement within the probationary period shall be at the discretion of the company ………”

Industrial Relations Act Claim CA-4391-001

The world of work is often home to conflict and resultant arguments. It is vital that the procedures relied on in pursuance of conflict resolution are robust and mutually understood by employer an employee .In this case , there was no apparent reliance on a procedural framework to resolve the reported dissatisfaction of the respondent following the lag in time before the Mussels were transported on April 15^th . This is in contravention of the Statutory Instrument 146/2000, the Ministerial order on correct procedures to be relied on during grievance and disciplinary scenarios .I am satisfied that the respondent is an experienced and well established employer in the area and ought to have known that it is not fair or reasonable to pick up the phone on a Sunday and terminate a persons employment. I am struck by the arbitrary nature of that action and the overnight replacement. A person’s job is their livelihood and this case is no different. I can appreciate that the respondent was under pressure in seeking to manage the claimant as he had lost confidence in his performance. However, I find that the respondent took a proverbial” short cut “.

I must consider the facts as presented. I find that there was absolutely no regard for procedures on April 17^th, when the respondent terminated the complainant’s job by way of summary dismissal. Even if, the decision was made in the heat of the moment, the undisputed fact of the complainant’s replacement is a stark testament to a precipitous action. The respondent had a both a probationary procedure and a disciplinary procedure at its disposal. It is regrettable that the probationary procedure was not actioned or documented prior to the complainant’s dismissal. The time period of 6 months had expired by the time of the claimant’s dismissal and I did not establish any details where this time frame was extended to the 11 months permitted between the parties. I note that the claimant did not have a contract of employment .

I accept the evidence of the respondent that the complainant presented as a management challenge in the workplace, however, it would have been both fair and reasonable for the company to try and manage the situation.

I recommend that the only practical way forward is to direct the respondent to prepare a reference for the complainant reflective of his period of employment. In addition, I award €1,500.00 in compensation to be paid to the complainant within 6 weeks, for the termination of his employment outside any procedural framework.

CA-00004391-003 and CA-00004391-004 were withdrawn . 

Dated:   24 April 2017