ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004243

Parties:

	Complainant	Respondent
Anonymised Parties	A Technician	A Telecommunications & Broadband Company

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00006202-001	29/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006202-002	29/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00006202-003	29/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00006202-004	29/07/2016

Date of Adjudication Hearing: 26/04/2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

Location of Hearing: Room G.04 Lansdowne House

1: Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The correct name of the Respondent was clarified at the hearing as was the decision to only proceed with the Unfair Dismissals Act proceedings – CA-00006202-001

2: Summary of Complainant’s Case:

Unfair Dismissals Act, 1977 CA-00006202-001

The Complainant commenced with the Respondents’ predecessor Company - Company A, in September 2010. In early 2013 Company A lost a major Contract with a Cable Television Company and Company A was taken over by the Respondent Company.

The change in arrangements was communicated to all employees by E Mail of the 4^th March 2013 and at a meeting with the MD of the Respondent in Galway in late May 2013. At this time there was an aggressive campaign by the new owners of the Cable TV contract to persuade staff from the Respondent to join them.

At the Galway meeting the MD effectively promised that with Respondent there would be no Saturday work. The Complainant accepted this and decided to remain with the Respondent. Later in the year -2013 - the Respondent resiled from this promise and began scheduling the Complainant for Saturday work. The Complainant made it clear that he could not do Saturday work. The situation continued unsatisfactorily with various disciplinary meetings and warnings until the Complainant’s dismissal in April 2016.

The Complainant was absolutely clear that at the Galway meeting in May 2013 the ending of Saturday work had been promised and he was simply carrying out this promise of the MD. The Respondent acted completely unfairly in later insisting on Saturday work. He had gone back on his promises –effectively resiling his contract with the Complainant. The Dismissal was accordingly completely unfair.

The Organisation of Working Time Act, 1997 CA-00006202-002 , Payment of Wages Act ,1991 CA-00006202-003 and Terms of Employment (Information) Act, 1994 was withdrawn at the hearing.

3: Summary of Respondent’s Case:

The Complainant was first employed as a Technician in 2010 by predecessor Company A to the Respondent. This Company A lost a major Cable TV contract in 2013 to a Competitor X. At the time, May 2013, the Respondent Company took over Company A. New business with another Cable TV operator, Company B, was secured by the Respondent and all staff were actively encouraged to stay with the Respondent rather than go to the Competitor X. A meeting took place in Galway in late May 2013 where the details of the new arrangements were laid out by the MD. It is agreed that the issue of weekend working was raised but in the context of the initial phase in period of the new Contract. There would at first be a slow down in weekends. There was never any suggestion that it was gone completely. After a period of time the need for Saturday working increased again and the Complainant was requested to do Saturdays. He refused and a process of warnings and disciplinary interventions began which eventually culminated in his dismissal in April 2016.

All good procedures were followed and the Dismissal was fair and justified. The refusal to work Saturdays was completely at variance with his contract and industry norms. The allegation the MD had, in the meeting in Galway in 2013, in some way allowed the Complainant opt out of weekends did not make sense. There may well have been periods following the merger when Saturday work was slow but as the new Contract ramped up it became necessary again. The Complainant was asked to do his fair share. His refusal was impossible for the Respondent and the process followed was fair.

4: Findings and Conclusions:

4:1 The Legal questions:

The Respondent relies on Section 6 (4) of the UD Act of 1977 quoted below.

Section 6 :

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Complainant was not willing to do Saturday work and as such he was, in the view of the Respondents, at complete variance with his contract.

4:2 Consideration of evidence and basic facts.

The basic facts have to be looked at.

The Complainant was employed as a Technician in a Cable TV/Broadband installation Company since 2010.
It is accepted by all reasonable persons that Saturday work is part and parcel of the work of these Companies- customers are often not at home during the week.
The Complainant’s original contract from 2010 clearly specified Saturday working and the Complainant had worked Saturdays in the period up to the Company takeover/transfer. Even allowing for a reduction in 2013 of the Saturday requirement it was still part of the Contractual terms of the Complainant.
The meeting in May 2013 with the MD of the Respondent in Galway while it appeared pointed to an initial slow down in Saturdays as the new Contract change over bedded in could never have been construed to be a complete abolition of Saturdays. The MD gave evidence of this meeting. It would simply defy reasonable belief that he would have given a blanket commitment to the Complainant or any other employee that Saturday attendance would no longer be a feature of the work.
In oral evidence from the Complainant I felt that he had too readily adopted “rose tinted glasses” regarding the meeting. He admitted that he had not immediately discussed while things were still fresh, the contents of the meeting, with colleagues also present at the meeting. An issue as fundamental as a major change to Saturday working would obviously have been to the forefront of any such discussions had they taken place.
In this context the Breach of Contract and Warranty and the Estopple arguments have to be seen realistically. The interpretation placed on this meeting with the MD did not appear to be shared with any other colleague who attended the meeting. Saturday work is part and parcel of the Cable TV/Broadband installation business and to imply that it was no longer required is a leap of logic that I could not follow.
I did not accept that the points from Carey v Independ Newspapers (Ireland) Ltd case [2014] 3 IR 52 case could transfer easily to this case nor did the Estopple arguments from the Doran v Thompson [1978] IR 223 Supreme Court case transfer easily. The Complainant was one technician from a large group; he did not negotiate a Personal contract and the suggestion that, even if verbally agreed, he had secured an almost personal opt out from Saturdays would be at complete variance with Industry norms. The suggestion is not sustainable.
Even allowing for some euphoria following the announcements by the MD of the new contract with the new Cable TV Company the weekend situation was clear again by the close of 2013. Various local arrangements, swops etc. with colleagues made the Saturday situation possible for some time but eventually this was going to come to an end.
A very lengthy series of meetings with management was held with the Complainant over 2014/2015/2016 to discuss the issue. It appeared that every possible step was taken to try and reach a compromise with the Complainant.
Fair procedures were followed. S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures was referenced and I could find no fundamental breaches of procedures. In addition the minutes of many meetings were presented in evidence as was the extensive oral evidence from the Respondent MD accompanied by key Managers.
It was clear that the Dismissal decision was not a rushed affair.
The Complainant did not appeal the Decision.

4:3 Summary Conclusions.

Taking all the above into account and having considered all the evidence both oral and written I could not find the Dismissal unfair and I dismiss the claim.

5: Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.

Act	Complaint/Dispute Reference No.	Summary Decision
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00006202-001	Claim is not well founded and is dismissed.

Dated: 01 August 2017

Workplace Relations Commission Adjudication Officer: Michael McEntee

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