Complainant

Respondent

Anonymised Parties

Driver

Municipal Services

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-00007994-001

04/11/2016

The Complainant was employed as a Driver from 14th September 2009 to 29th July 2016. He was paid €730.00 per week, average based on the P45. He has claimed that he was unfairly dismissed and has sought compensation.

The Respondent stated that they are a small operation and try to run matters informally. There had been a number of problems with the Complainant; he was reported for sleeping on the job, the dirty state of his vehicle, not doing his job properly in order to get to the next job, he was spoken to and issued with informal cautions. The reason why he was not dismissed in the past was because he promised to correct his ways. In his favour he was a very willing and hard worker. Client customers in Cork, Kildare and Tipperary requested that he would not be sent there again. The final incidents that led to his dismissal was being found asleep at a Dublin site and the illegal tipping. On 20th April 2016, there was an incident of illegal tipping. The client customer had to clean up after him. Unauthorised dumping is illegal. He was issued with a final verbal warning. He firmly believed that he wouldn’t repeat it. Another incident occurred of unauthorised tipping at a site at a Dublin hotel on 25th May 2016. The client customer refused to have him using that site. The Respondent gave the Complainant a month to find another job following the 25th May incident. This was an abuse of privilege. Following the incident at a site in Dublin where he arrived late and was later found asleep he was issued with a final written warning on 14th June 2016. He worked out the month notice following the 25th May incident. He did this to assist him get another job. He understood that the Complainant had accepted what had happened and the matter was concluded. He was not expecting to end up in the Workplace Relations Commission. The dismissal was justified and fair.

The Complainant’s representative requested site of the grievance procedure. It was explained that the grievance procedure was issued with the contract of employment. The Complainant has denied that he was asleep on the job. The client customer told him where to dump at the Dublin hotel site. Following the issuing of the final warning he was assigned to the Cork area to the end of June 2016. He was given a month’s notice following the Cork incident.

There were no fair procedures applied in this case. There were no investigation meetings, no disciplinary hearings, the Complainant had no opportunity to defend himself, he was not given the right of representation and the right of appeal. This dismissal was both substantively and procedurally unfair. His dismissal date was 29th July 2016 yet the Respondent offered him work on three dates in August. If the reasons for dismissal were so serious why was he allowed to work a month’s notice. He is seeking compensation. He actively looked for work, he signed up with an agency and made over 100 job applications. He eventually got a job with the hotel site company that allegedly refused to have him on the site following the alleged unauthorised tipping incident.

This dismissal was both substantively and procedurally unfair and compensation is sought.

I note that the Respondent operates a very informal style of management.

I note that the Respondent asserts that he had spoken to the Complainant about his work and behaviour on many occasions. The Complainant denies this.

I note that none of the warnings were confirmed in writing with the exception of the final written warning issued on 14th June 2016.

I note that the Respondent stated that he had given him a final warning following the 25th May incident, so why issue another final written warning in June?

I note that the Respondent stated that the reasons for the dismissal were the two incidents of unauthorised dumping. He had been warned after the first incident that if it was repeated he would be dismissed. He repeated it and so he was dismissed.

The Respondent advised that this was an illegal activity, yet the Complainant was given a month’s notice.

I note that he then issued him with a final written warning for less serious incidents while he was in effect working out his notice.

I note that the Respondent accepted that he didn’t follow the company’s procedures.

I note that the Respondent stated that he acted in the interests of the Complainant, he had to dismiss him for illegal activities but as he was a good and willing worker he wanted to give him a chance to get work and so gave him a month’s work.

I note that the Complainant got a job with the company that allegedly refused to have him attend their site, this I find confusing.

I note that he gave the Complainant work after the employment had ended, that would suggest that the Respondent understood that the dismissal was accepted and that that matter had ended.

I find that the Respondent failed to properly investigate the alleged incident of illegal dumping and other misconduct and behavioural matters.

I find that the Complainant was denied the right to defend himself, have representation and the right to appeal any possible sanction.

Therefore, I find that the dismissal was both substantively and procedurally unfair.

I have concluded that the Complainant has contributed to his dismissal and this should be reflected in the quantum of the award.

Unfair Dismissal