ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006217

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/07/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015 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).

Background

CA-00008614-001

Terms of Employment (Information) Act 1994

The claimant commenced employment with the respondent on the 15th February 1992 and was appointed as Quality Control officer on the 3rd December 2001. The claimant was dismissed on the 24th November 2016. The claimant submitted that he was not provided with a contract of employment in accordance with section 3 of the act.

Findings

The Terms of Information Act came into force on the 16th May 1994; the purpose of the act was to implement an EU Directive which requires employers to provide a written statement to employees setting out particulars of employee’s terms of employment from that date.

Where employees were employed prior to the 16th May 1994 provisions was made that they could request an employer to provide them with a contract of employment and this request must be complied with within 2 months. When asked at the hearing the claimant confirmed he did not request a contract of employment from the respondent.

However I find that when the claimant was appointed to the position of Quality Controller I find that he should have been given an contract for the position.

Decision:

Section 41 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.

I find that the complaint to be well founded and I award him €1300 as compensation.

CA-00008614-002

Unfair Dismissals Acts, 1977 – 2015

The claimant commenced employment with the respondent on the 15th February 1992 and was appointed as Quality Control officer on the 3rd December 2001. He was paid €672 for a 40 hour week. The claimant was dismissed on the 24th November 2016.

Respondent’s position.

It was submitted at the core of any organization is the need for satisfactory standards from its employees. If the respondent had not disciplined the claimant appropriately, it would have given the impression to other employees, that such levels of absenteeism were not viewed by the respondent as being unacceptable. The respondent treated the claimant fairly and consistently in line with the stated and accepted custom and practice.

At the time between August 2008 and his termination, the claimant had many warnings regarding his absence representing many incidents of lost time/absence. This continuing level of absenteeism, despite warnings, are in breach of accepted respondents standards.

At all time the respondent conducted a fair process. In relation to the procedures used to implement this warning, the claimant was afforded all benefits of fair procedure, in line with the respondent’s established practice, and while it is an aged procedure it is fair and has evolved to be in excess of the minimum three step provisions the LRC Code of Practice on Grievance and Disciplinary Procedures (SI146/2000) and in line with the universal principles of natural justice.

The claimant was informed in advance as to the nature of the complaint against him. He was afforded the right of representation, which he declined. All evidence in its entirety was considered, including the claimant's representations before the decision was made (following overnight deliberation). The claimant was afforded the right of appeal, which he exercised. The respondent submitted various case law to support their position

The claimant submitted that the essential elements of any procedure for dealing with grievance and disciplinary issues are rational and fair and that the basis for disciplinary action is clear.

The claimant submitted that the complaint made against him required that the complaint should be set out in writing citing the section of the respondent's policy dealing with illness absenteeism, outlining clearly how his absenteeism due to illness is not compatible with the respondent's policy

The claimant submitted that the decision to dismiss was procedurally flawed. The respondent’s nominees to hear his appeal against his dismissal had already heard a similar appeal on absenteeism.

Findings

Both parties made written and verbal submissions at the hearing.

I find that having examined the list of absenteeism and late comings. I find   the claimant was fully aware of these and the consequences if his absenteeism did not improve.

I find that the case law of Mooney and Others v Rowtree Mackintosh Ltd Ud 473, 474, 475 and 478/1980. The Tribunal held that that the intermittent absence of the claimants over a number of years amounted to an unacceptable level of absenteeism. I also find that the claimant was clearly aware of the procedure

Decision 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that based on the evidence as the dismissal was fair and the complaint falls.

Dated:   24 August 2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell