Complainant

Respondent

Anonymised Parties

A general operative

A sign-maker

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-00012018-001

20/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00012018-002

20/06/2017

The complainant commenced employment, as a general operative, with the respondent, a sign-maker, on 23rd November 2015. His employment ended on 12th May 2017. His gross pay was €11.00 per hour and he worked 40 hours per week. A Complaint Form was received by the WRC on 20th June 2017.

At the outset of the hearing the respondent put forward that the complainant had resigned from the company on 6th November 2016 and as such had broken his contract. However, the respondent agreed that the complainant had returned to work the following day and was issued with a new contract that same day. The respondent did not deny that a dismissal had taken place.

In oral evidence the complainant's manager submitted that the complainant was initially seen as a good employee and up to October 2016 there had been no problems. However, around this time he sought information from her on getting a home from social welfare and had asked her to "fire" him. The manager stated that the complainant had approached several staff about this and had made life difficult for staff. A number of altercations had taken place between the complainant and other colleagues.

Regarding the incident of 12th of May 2017 the manager stated that the complainant refused to do what he had been instructed to do, as many times in the past. There had been more than 90 meetings with the complainant in the previous three months regarding his behaviour. The complainant had been issued with a verbal warning at some stage.

The manager stated that she believed that as the complainant had less than one year's service it was "ok to dismiss him".

In cross examination, the manager agreed that up to November 2015 there had been no problems with the complainant or his work. The respondent stated that the matter of getting a house through social welfare was raised on a number of occasions by the complainant. The manager also stated that there had been many problems with the complainant, such as sneaking off when asked to do overtime, but there were no records about these incidents. The respondent put forward that the complainant had made threats against the colleague he had had the run in with on 12th May 2017.

The witness stated that there are disciplinary procedures and a handbook available to employees, that they are issued to employees with their contracts of employment.

The witness agreed that the complainant was never accompanied to any of the meetings she had with him. She was also of the view that it was up to him, the complainant, to appeal the decision to dismiss him.

When put to the witness that the complainant's P60 did not indicate any break in service (it showed a 53-week year) and that no such break had taken place she replied that the complainant had handed in a letter of resignation on 6th November 2016 but had got his job back the next day.

In response to my questions the respondent stated that the complainant had wanted to be let go and continually put obstacles in the way of work getting done. He deliberately did not work to his full potential.

Another witness, the owner of the company, stated that the company thought the complainant had less than 12 months’ service.

The complainant provided a detailed written submission.

The complainant was initially employed in May 2015, on a three-day week but this was increased to five days per week sometime later. In November 2015, the complainant's employment with the respondent was regularised by way of a contract of employment.

The complainant submits that his employment was terminated by the respondent on 12 May 2017, unfairly, without warning and in breach of the express and implied terms of his contract.

The complainant also submits that he was not afforded his entitlements in respect of notice.

The complainant submitted that his dismissal was related to two key incidents. The first incident took place in or around 5th May 2017.   The complainant was doing his own duties when he was approached by a colleague who asked him for assistance.   Because he was so busy himself the complainant declined to help his colleague who then got irate and reported the incident to their manager. When the manager arrived, according to the complainant, she confronted him, threatened him with the termination of his employment and informed him that, "the door is widely open for him to go".

When the complainant explained the situation to the manager as to why he could not assist his colleague, the manager went to the complainant's work area, the complainant believes to check his work and subsequently left the area without any further discussion.

The second incident took place on 12th May 2017, when the same colleague as referred to above, again asked the complainant to assist him.   This time the complainant left his own work to help his colleague. An argument ensued about the work and the complainant's colleague got angry, raising his voice.

According to the complainant, the manager arrived and confronted the complainant saying that he, the complainant, had many problems with his colleagues, and that he was being let go. The complainant submits that he then returned to his work station but was instructed by the manager to collect his personal effects and to go home.

The complainant received a letter of dismissal dated 12th May outlining the reasons for his dismissal. The complainant denies all the allegations contained in the dismissal letter regarding poor performance and conduct. The complainant expressly denies that he had several meetings with management at which he had requested that his employment be ended. The complainant had discussed a job opportunity in another employment with his then manager in November 2016, but was offered a pay increase by the respondent to get him to stay.

In his submission, the complainant outlined why it is his belief that his termination was in breach of the express and implied terms of his contract of employment and is tainted with unfairness. The complainant puts forward that he was summoned to a meeting with his manager and summarily dismissed. He was not afforded an opportunity to consider his position before this meeting, he did not know that he could potentially be dismissed, nor was he informed of the allegations made against him prior to the meeting; contrary to natural justice and the respondent's own Disciplinary Procedure.

The complainant also submits that he was never afforded the benefit of any Disciplinary Procedure during his employment. The complainant, who has limited English, was not afforded any opportunity to challenge the allegations made against him, he was not accompanied to the meeting by any representative (nor was he offered an opportunity to be so accompanied). He was not afforded any appeals process but rather the fact of his dismissal was presented to him as a fait accompli.

In response to my questions the complainant denied he had asked to leave and denied he had not worked to his potential. Regarding the incident of 12th May 2017 the complainant stated that he may have raised his voice but only to defend himself.

In concluding, the complainant submitted that his dismissal was unreasonable and disproportionate in all the circumstances and in the absence of fair procedures, his dismissal amounted to unfair dismissal within the meaning of the Unfair Dismissals Acts.

During the hearing the respondent put forward that there had been a break in service in November 2016, when the complainant tendered his resignation and that as such the complainant did not have the required service to be afforded protection under the Unfair Dismissals Act. This resignation took place on 6th November and the next day the complainant returned to work and was furnished with a new contract. Such a break, if it could even be called a break, does not constitute a break in service and therefore the complainant has the requisite continuous service required by the Act.

From the evidence given by the respondent I have no doubt that the complainant created difficulties in the workplace and that he required a disproportionate level of management attention (although the lack of records to support this contention does not help the respondent's case). It would seem to me that when the complainant was dismissed the respondent had simply reached the end of their tether with him and decided to let him go.   However, the manner in which the complainant was dealt with came nowhere near the standards of natural justice and fairness required of an employer.

From the evidence adduced the respondent failed not only to follow the tenets of natural justice but also failed to follow their own disciplinary procedures. During the hearing one of the witnesses for the respondent stated that she thought it was "ok" to dismiss the complainant because he had less than one year's service; as if this meant the requirements of fair procedure could just be tossed aside.

In the circumstances, I find that the complainant was unfairly dismissed.

In mitigation of loss, the complainant stated that he did get some part time work in the period between the dismissal and the hearing. He has done several interviews but has been unable to secure a fulltime position. Regarding mitigation, the respondent stated that the industry is crying out for people and that he had taken on 20 people since the complainant had left.   Although the complainant has recently found some part-time work I do not believe he has done all he could to mitigate his loss since his dismissal. In the circumstances, I believe an award of €12,584 (i.e. 26 week's pay) is justified.

Fair procedures, continuous service.