ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00015012

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969following 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 a General Operative from 19th February 2018 until 6th April 2018. He maintained he did not receive his Terms of Employment in writing and that he was unfairly dismissed on 6th April 2018. The Respondent denied the complaints. Neither party was represented at the hearing.

Summary of Complainant’s Case:

The Complainant maintained he was an experienced window fitter and was offered a position of employment with the Respondent where he understood he was being recruited as an experienced worker. He applied for the job online and was appointed on 6th April 2018.

The Complainant submitted that he did not receive his Terms and Conditions of Employment in writing and that he understood he was to be paid at €17per hour as an experienced worker in accordance with the construction industry rate of pay. However, he maintained that he only received€14.10 per hour. As he did not receive written notification of his terms and conditions he was seeking proper payment from the Respondent. The Complainant also maintained that he was not provided with a phone which was required for him to record his work.

He maintained that when he raised these issues with his supervisor he did not get a response. He escalated his concerns to an office manager and another manager. The Complainant advised that he was subsequently dismissed on 6th April 2018 by phone where he was told there was no work available for him.

The Complainant was seeking redress for the failure of the Respondent to provide him with written terms of his employment, was seeking a proper amount of pay and was seeking redress and for his dismissal.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant was employed on a six month probationary period from 19th February 2018 and a contract of employment was posted to him on 22nd February 2018. This contract was never returned to the Respondent.

The Respondent maintained that the Complainant was absent on six separate days over during his first five weeks of working the probationary period. It also submitted that the Complainant demonstrated poor productivity and verbally abused the office manager. As consequence the Complainant’s job was terminated in accordance with the probationary procedure. The Respondent advised that it informed the Complainant that this was the basis of his dismissal, which was in accordance with the disciplinary procedures as laid out in the contract.

The Respondent acknowledged that there was no disciplinary hearing of the issue or there was no performance review prior to the decision to dismiss the Complainant.

Findings and Conclusions:

Terms of Employment

The parties disputed whether the Complainant was provided with a written notice of his terms and conditions of employment. The written terms that the Respondent purported to have given to the Complainant were unsigned by the Respondent, and the written statement presented also failed to identify any level of pay. The Complainant argued that if he had received a contract that did not contain a rate of pay he would have raised this matter at the time as he was seeking to be paid at the rate of €17ph which he understood was the rate for an experienced worker. The matter of his pay was never resolved, and the Complainant was dismissed prior to this matter being addressed.

The minimum hourly pay rates under the Sectoral Employment Order (SEO) for the general construction industry are:

• New Entrant Workers: €13.77
• Category 1 Workers (General Operatives with more than 1 years’ experience: €17.04
• Category 2 Workers (Skilled General Operatives): €18.36
• Craft Workers (Includes: Bricklayers, Carpenters, Plasterers): €18.93.

The Complainant, as an experienced window fitter appears to fall under category 2, but the Respondent maintained he was a Category 1 Worker.

I find that the written Terms of Conditions of Employment that the Respondent purported to have provided to the Complainant did not contain the specific rate of pay which is required to be provided under the Terms of Information (Employment) Act 1994 which under S3(1) (f) which requires in the statement a reference to any registered employment agreement or employmentregulation order which applies to the employee and confirmation of wherethe employee may obtain a copy of such agreement or order, and any terms or conditions relating to hours of work (including overtime). The statement provided to the hearing was silent on these elements.

On balance I am satisfied the Complainant was not provided the written notice as the basis of his complaint was that he was being underpaid. Had he received the notice provided, which did not note his rate of pay, he would have raised that with the Respondent at the time.

I therefore find that the Respondent did not provide the Complainant a written statement of his conditions of employment, and this is in breach of Section 3 of the Terms of Information (Employment) Act 1994.

There was insufficient information provided for me to conclude whether the Complainant was placed on the correct category for pay purposes. I therefore cannot recommend that the complainant should have been paid more than he was paid.

Unfair Dismissal

The Complainant did not have 52 weeks services and is therefore not protected under the Unfair Dismissal’s Act. The dispute was heard under the IR Act.

The Respondent in its evidence acknowledged that in dismissing the Complainant it did not invoke any disciplinary procedures or any other formal procedure to inform the Complainant that his continued absences, poor productivity, and attitude would lead to his termination. I therefore find the Respondent terminated the contract without any forewarning. The Respondent did not demonstrate how it assessed the Complainant’s performance, or how it conducted a review of the Complainant’s performance which is indicated in the Statement of Terms that the Respondent maintains it provided to the Complainant.

I also find that the Respondent did not provide the Complainant with a weeks’ notice which it is required to do under the Statement of Main Terms of Employment that the Respondent maintains it provided to the Complainant..

I therefore find that the Respondent failed to adhere to its own procedures when deciding to terminate the Complainant’s employment, and in failing to provide the Complainant with a weeks’ notice. I also find that the Complainant’s attendance was a cause for concern with a relatively high history of absence during his time with the Respondent.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Having heard the complaint, I recommend the following:

Terms of Employment

Having found that the Complainant was not provided with the Terms of his Employment in writing as required under the Terms of Information (Employment) Act 1994, I recommend the Respondent pay the Complainant compensation of one week’s pay amounting to €550 (subject to any lawful deductions).

Unfair Dismissal

Having found that the Complainant was not provided with any assessment of his performance or a performance review, or any formal process regarding the management of his probation, and where he did not receive one week’s notice in writing as per the Statement of the Main Terms of Employment, I recommend the Respondent pay the Complainant compensation of one week’s pay amounting to €550 (subject to any lawful deductions). I note the Complainant, by his attendance record, had contributed to the decision of the Respondent to terminate his employment.

Dated:   17.12.18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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