ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004291
Dispute for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00006214-001 | 01/08/2016 |
Venue: WRC; Lansdowne House, Ballsbridge, Dublin 4
Date of Adjudication Hearing: 26/01/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 13 of the Industrial Relations Act, 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background
The Complainant was employed as an Office Assistant and laterally as Marketing Executive from 11th November 2015 to 6th July 2016. He was paid €500.00 gross per week. He has claimed that he was unfairly dismissed and has sought compensation.
Complainant’s Submission and Presentation:
The Complainant commenced employment as an Office Assistant and was promoted to Marketing Executive. He was summarily dismissed on the 6th of July 2016 without any notice or explanation. He was on his way out of the office to have his lunch when the Managing Director asked to him to join him in his car "for a chat". He then proceeded to drive 20 yards to where his company vehicle had been parked. He then informed him that his car was not clean and that he "did not give a s*** about the company". He then proceeded to tell him that he was being "let go" with immediate effect. He then reversed up the 20 yards and informed him that his brother and Operations Manager would drop him home and that all his notice pay and a good reference would be sent out to him in the post. The whole process took about 90 seconds and then he drove off in his car. Within the next 30 minutes an email had been circulated to the entire company informing them to contact the MD directly regarding any future marketing enquiries. The MDs brother offered to sort it out but nothing came of it. The next morning 07/07/2016 he received his P45 and payslips in the post. Two weeks later he received a basic statement of employment., not a reference as promised. He believes that he has been treated very unfairly as his work to date was very satisfactory and well received within the company. After he left he felt humiliated in front of his co-workers and he was extremely upset at having no opportunity to defend myself. The normal principles pertaining to employee relations were not afforded to him and he was given (A) No explanation (B) No advance notice (C) No right to defend himself (D) No right to representation and finally (E) No right to Appeal this outrageous decision. During his employment as a Marketing Executive, he was never given a copy of a contract of employment which he is legally entitled to. In addition to the above, he believes his dignity as a person was completely disrespected by the whimsical nature of this unfair and unjust action on the part of his former employer. He had spent the last 5 years of his life studying very hard for a Master’s Degree in Marketing and Management and as result he is very qualified for the position he held. He believes his rights as an employee to due process have been infringed and he is seeking compensation. He advised the hearing that he found a job from 30th July to 31st August as a Development Coach with the GAA at €230 per week. He then went travelling to the USA for 2.5 months. He got a new job on 30th November 2016 with slightly better terms. |
Respondent’s Submission and Presentation:
The Respondent’s Representative stated that this hearing was originally scheduled for 2nd November but was adjourned; it is now clear that the reason was the Complaint was in the US A.
It is accepted that much of the facts are not in dispute.
The Managing Director spoke to the Complainant three times about the lack of cleanliness of his company car. The Complainant was the Marketing Executive; the company car had the company brand and logo on display. It was not unreasonable to expect that the car would be kept clean. The Complainant’s lack of interest in presenting the company vehicle in good condition disappointed and annoyed the Managing Director. The Managing Director consulted colleagues before he decided to terminate this employment. It was totally unacceptable that the Marketing Executive whose job it was to promote a positive image of the company would blatantly ignore warnings about the unacceptable standard of the car’s appearance.
The Complaint did not have 12 month’s service and so is not covered by the Unfair Dismissals Acts. If he had over 12 months service then a different set of standards would have applied. With less than 12 months service the termination is at the discretion of the company.
If there is a finding against the company the decision will be appealed to the Labour Court which is a public forum. This is not a threat but a fact of life. They bear him no ill will and wish him well for the future. His loss has been negligible so there is no basis for compensation.
Findings
I note that the Complainant had less than 12 months service.
I note that there was no evidence to suggest that he was on a formal probationary period.
I note that there were no warnings on his file regarding his employment.
I note the conflict of evidence regarding possible warnings/ cautions about the cleanliness of his car.
I find it reasonable that a company would expect its employees to maintain a high standard of cleanliness.
I find in particular a Marketing Executive should not have to be told to clean his car given that it has the company logo and brand on it.
I understand the annoyance of the Managing Director in such circumstances.
However I find that the termination of employment was a wholly inappropriate response. I find that the “punishment did not fit the crime”.
I find that the sanction of dismissal was disproportionate.
I find that any employee is entitled to fair procedure irrespective of the length of service,
I accept that employees with more than 12 months service have the protection of the Unfair Dismissals Acts whereas the Industrial Relations Act is a voluntary mechanism and the outcome of this process is unenforceable.
However fair procedure and respect reflects a company’s attitude towards it workforce.
I find that the Complainant was treated unfairly.
I find that nobody should have their employment terminated in the manner that took place in this case.
I find that he was not afforded fair procedure or natural justice.
I find that he was entitled to have been taken through the disciplinary procedure and the principles of S.I. 146/2000 The Code of Practice on Grievance and Disciplinary Procedures should have applied.
He was entitled to have charges put to him, he should have been given the right to defend himself, he should have been given the right to representation and the right to appeal the outcome of such an investigation.
I find that he was denied all of these.
I note that the Complainant found work shortly after the dismissal.
I note that he travelled to the USA for 2.5 months and upon his return he found work with slightly better terms and conditions.
Therefore I find that his loss was negligible.
Recommendation:
Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the complaint.
I recommend the following in full and final settlement of this dispute.
I recommend that the Respondent pays the Complainant €2,000 in compensation for breaches of fair procedure and natural justice.
I recommend that the Respondent provides a positive reference to the Complainant.
These are to be done within six weeks of the date below.
Eugene Hanly
Adjudication Officer
Dated: 11th April 2017