Complainant

Respondent

Anonymised Parties

Technician

Engineering Consultancy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00017400-001

12/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017400-002

12/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017400-003

12/02/2018

The complainant commenced employment with the respondent as a Structural Technician on 19 June 2017.   The complainant was originally employed on a full-time basis on a wage of €525.00 per week gross but this was changed to 3-day week working by the respondent. The complainant’s employment was terminated on 28 September 2017.

The complainant was interviewed for and was appointed to the position of Structural Engineer with the respondent.

This appointment was confirmed in writing by the Managing Director.

The complainant never received a contract of employment nor a wage slip despite requesting same.

The Managing Director called to the complainant’s house whilst the latter was on a day-off and summarily dismissed the complainant.

The complainant was offered the position which was a part-time position but required full-time hours at its commencement.

The offer included a 3-month probationary period and during this time serious concerns arose in relation to the complainant’s ability to perform his duties.

A complaint was received from the staff member who dealt with administration with regard to the complainant being abusive to her.

The Managing Director decided to terminate the complainant’s employment and called to his house to inform him of same. The complainant was paid until the end of the month.

The complainant applied for and was appointed to the position of Structural Technician with the respondent. On 14 June 2017 the Managing Director wrote to the complainant offering him the position.   The initial starting salary was to be €100.00 net per day, paid weekly, and this was to be reviewed on the successful completion of 3 months’ probation. The offer also stated that the complainant would be entitled to 20 days (4 weeks) holidays. The complainant commenced employment on 19 June 2017.

The staffing of the consultancy consisted of the Managing Director (M.D.), the complainant and a Secretary / Administrator. According to the complainant a conversation took place between him and the M.D. on August 22 when he was informed of the intention to put him on a 3-day week.   The complainant stated in evidence that he was shocked by this development as he had thought that matters were fine with regard to his employment. The 3-day week was implemented with effect from 18 September. On 20 September the M.D. wrote a letter to the complainant headed “Notice of Probationary Period Extension”. This letter stated that the complainant was being notified of the intention to expand his employment for a further three months and that his employment was now scheduled to end on 22 December. It further stated that the complainant’s hours of work would continue on a three-day week basis. According to the complainant this letter was handed to him on 25 September.

The complainant replied in writing on 26 September with queries that he requested be answered in writing. The queries were in relation to the reason for extending the probationary period, why no pay slip was issued, why the complainant had not received a written contract of employment, why no confirmation of annual salary and a request for a revised contract to reflect the 3-day week working. According to the complainant the M.D. had agreed to meet with the complainant on the afternoon of 27 September to discuss a review of his salary and the complainant remained in the office until it was clear that the M.D. would not return to the office. The complainant left his letter with the Secretary for the attention of the M.D. as, because of the 3-day week, the complainant would not be working the following day. The M.D. returned late to the office and sent a text to the complainant apologising for not advising him about not being back in the office and telling the complainant that he would be contacted the next day about a meeting.   The M.D. in evidence said that he had received constant phone calls from the complainant that day and had also been informed by the Secretary that she had been abused by the complainant about the absence of the M.D. According to the M.D. he then made a decision to terminate the complainant’s employment.

It is accepted that the M.D. called out to the complainant’s home and informed him that he was no longer employed and that he would receive payment to the end of the week. With regard to the termination of employment which is the subject of the dispute referred under the Industrial Relations Act 1969, I note that under the terms of the offer letter the probation period was due to expire after 3 months, i.e. 19 September 2017 and that the purported extension was only notified to the complainant on 25 September. There was no discussion with the complainant as to any issues with the performance of his duties that would justify this extension but, even if we take it at its face value, it appears strange that just a few days later the M.D. decided that it was necessary to dismiss the complainant. A probationary period should be used to mentor a new employee, advise him or her of any shortcomings in their performance and give them a chance to improve in the areas highlighted before deciding to terminate their employment.   This obviously requires dialogue between the parties. I appreciate that in recruiting an experienced person there is an expectation that they are familiar with routine requirements and procedures and the M.D. in evidence gave outline examples of his concerns in relation to the complaint in this regard. These concerns have to be passed on to the employee in question and this does not appear to have occurred in this case. The dismissal itself was executed without warning and at the complainant’s own home. In all the circumstances I have to find that the procedures adopted by the respondent were defective and uphold the complainant’s position that it amounted to an unfair dismissal.

Section 3(1) of the Terms of Employment (Information) Act, 1994, states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…

The section goes on to lay out the various matters that have to be included in such a statement.   It is clear that the only document issued to the complainant was the letter of appointment which does not meet with the requirements of the Act. This requirement is well known and is a fundamental part of any employment relationship. I therefore find that the respondent failed to issue a statement of employment to the complainant as required by the legislation.

Section 5(1) of the Act states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer undersection 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)    1 month after the change takes place…

The respondent argued that the contract was for a 3-day week and the working of a 5-day week was only necessary for the commencement of the contract. As pointed out, in the absence of a statement of employment no such assumption can be made. On the other hand, I note that the advertisement for the position did not specify it as being part-time or full-time but the letter of appointment states that the complainant’s holiday entitlement is 20 days (four weeks) which obviously would not apply to a 3-day week appointment. I find therefore that the original position offered to and accepted by the complainant was for a full-time position and that this was changed by the respondent to a part-time position which therefore required notification as set out in Section 5(1). No such specific notice was issued and the letter stating that the 3-day week would continue does not meet the requirements of the legislation. I find therefore that the respondent failed to comply with the Act in this regard.

Complaint No. CA-00017400-001:

This is a dispute under the Industrial Relations Act, 1969. Having upheld the complainant’s position that he was unfairly dismissed and noting that the complainant has found new employment I recommend that the respondent pay to the complainant the sum of €3,000.00 in this regard.

Complaint No. CA-00017400-002:

This is a complaint under the Terms of Employment (Information) Act, 1994, in relation to the non-issuing of a statement of employment. For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €2,100.00 as compensation in this regard.

Complaint No. CA-00017400-003:

This is a complaint under the Terms of Employment (Information) Act, 1994, in relation to the failure to inform the complainant of changes to terms of employment. As detailed above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,000.00 as compensation in this regard.