ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008367

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011159-001 05/05/2017   Date of Adjudication Hearing: 27/11/2017 Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with 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).   Only Oral submissions were received.  

Background:

The dispute concerns a Security Guard and a small Security Company. The Complainant does not drive and the Company was unable to drive him home (as had been the practice). Accordingly, he alleged that his employment was ended on this ground.

1:        Summary of Complainant’s Case:

On the early morning (approx. 01:00 hrs) of the 7th November 2016 the Complainant was working on a late shift at a Security Site in the Tallaght area. The Respondent arrived on site and informed the Complainant that he (The Respondent) could not give the Complainant a lift home. The Complainant does not drive. He had to wait until public transport began in the early morning to get home. He did not attend work the following night (Tuesday 8th /Wednesday 9th) but contacted the Respondent on Wednesday afternoon to find out his position. The Respondent told him by phone that he “had no more work for you”. Accordingly, the Complainant believed that he had been sacked. Later that week he received his Wage Packet (dated the 10th) which contained all his holiday entitlements -effectively a final pay packet. He has not worked for the Respondent since this date. It was his belief that the Respondent had sacked him due to the Respondent no longer being able to drive him home late at night.    

2:        Summary of Respondent’s Case:

The Respondent company is a small operation. The MD had the practice of dropping the Complainant home from sites that did not have easy access to Public Transport -late night jobs. Unfortunately, his (the MD’s health) had begun to deteriorate and he had to scale back on his hours and later night work. This meant that he could no longer drive the Complainant home anymore. He had gone to the site in Tallaght to discuss the situation with the Complainant. He was going to suggest that the Compliant move to another site and work weekends only. This was unacceptable to the Complainant. The discussion had become a bit heated and it was clear to him (the Respondent) that the Complainant did not wish to work at the Tallaght site without transport being provided as had been the case. The Respondent could no longer provide this. If the Complainant did not wish to transfer to Weekend work, there was no further work for him. He was a good employee and the Respondent had no desire to dismiss him. However, the Transport situation was now the key issue and as it could not be resolved the employment relationship had ended. A witness, the second Security Guard (Mr. X) at the Tallaght site gave evidence of witnessing the conversation between the Parties but was not able to give an exact recall as he was mostly out of earshot. He did know however, from conversations with the Complainant at the time, that the changes proposed by the Respondent were not to the liking of the Complainant.  

3:        Findings and Conclusions:

Both parties gave Oral evidence as did Mr.X, the Second Security Guard at the Tallaght site. Cross questioning took place. The employment was very small scale and no formal procedures of any nature existed as far as I could see. Having heard the Oral evidence of the parties I came to the following conclusions. The dropping home of the Complainant had become an accepted practice of the job. The changing medical situation of the Respondent had now effectively made this very difficult to achieve. The size of the Company meant that there was no one else available to do this late-night driving. The conversation between the parties on the morning of the 7th (at 01:00 hrs) had become heated. The Complainant had not come in for work that evening (7th) and the Respondent took the view that the job relationship was now over. He instructed his payroll person to make up the final wage packet for the Complainant. When the Complainant rang him on Wednesday afternoon it appeared quite likely, on the balance of the evidence, he had indeed told the Complainant that he had no “more work for him”. The preparing of the final wage packet with the holiday pay included was effectively an ending of the employment relationship. The packet was presented in evidence. In Conclusion, I came to the following views It was clear that the medical situation of the Respondent had effectively changed the situation regarding late night driving but I felt that more effort should have been made by the parties to sort out the transport situation and seek alternatives. As an example, the proposed changes to weekend working might have been explored further. The oral evidence of the parties was, in my view sincere but indicated a robust relationship between the Complainant and the Respondent. It was my view that a “clear the air” phone call on the Wednesday afternoon would have been a difficult task for both parties. The preparation of the “Final Pay-packet” was in effect a Dismissal decision by the Respondent. The Complainant was never made aware, as far as I could see, that this decision was being taken and no appeal was allowed. In the complete absence of any procedures the Wednesday telephone call might have served as an opportunity to clear the air and see where to go forward without a dismissal. The Complainant was never informed that he was being formally dismissed and had no chance to make an input. Accordingly, having considered all the evidence and heard the parties I found the Dismissal to have been unfair. I noted that the Complainant had quickly (within three weeks) secured other work Redress of € 500 is awarded to the Complainant. - approximately one week’s gross pay (from the claim form weekly gross pay was stated to be approximately €502.25.)   Considerations of Reinstatement or Re Engagement were mentioned but deemed unsuitable by all Parties.        

4:        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.  

ActComplaint/Dispute Reference No.Summary Decision /Refer to Section 3 above for detailed reasoning. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00011159-001 Claim for unfair Dismissal is well founded. Redress of €500 is awarded.   The Taxation of this award is a matter on which the Parties should seek the advice of the Revenue Commissioners

Dated:   02/02/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee