ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012555
Parties:
| Complainant | Respondent |
Anonymised Parties | General Operative | Construction Company |
Representatives | Claimant | Eamon Carolan Solicitor |
Complaint(s):
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-00016607-001 | 03/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016607-002 | 03/01/2018 |
Date of Adjudication Hearing: 25/06/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Further submissions regarding the matter of notice were received following the hearing with the final submission from the respondent received on the 8th.Aug. 2018
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 11 of the Minimum Notice and Terms of Employment Act 1973] 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).
Summary of Respondent’s Case:
The claimant was employed as a General Operative with the respondent from the 15th.March 2015 to the 10th.July 2017.The business involves the manufacture of precast concrete products and is dependent on securing orders with workforce requirements fluctuating depending on the contracts secured.It was submitted that the claimant was on a fixed term contract along with other employees to facilitate the completion of individual contracts. It was submitted that the claimant was the recipient of numerous formal and informal warnings owing to poor performance and attitudinal difficulties.It was contended that the claimant responded poorly to authority including the Health & Safety manager.It was submitted that the claimant was issued with a further written warning in late 2016 /early 2017 for driving in a dangerous manner but the respondent was unable to locate a copy of the warning despite a thorough search. It was submitted that the incident that gave rise to the claimant’s eventual dismissal occurred n July 2017 when the claimant breached a direction regarding car parking at the company premises in a location “ deliberately chosen to hide the fact that he was breaching this regulation”. It was submitted that this was deemed to be a deliberate breach of discipline following multiple prior breaches – a hearing took place on the 7th.July 2017 following which the claimant’s employment was terminated .The claimant had been furnished with the company handbook at the outset of his employment and did not appeal the decision to dismiss.It was denied that the claimant had been told he was a good employee and it was denied that the dismissal was in any way related to the claimant pursuing a personal injury claim.It was submitted that the claimant was given numerous opportunities to improve his performance but had failed to improve despite having his contract renewed . In his direct evidence Mr.BOR set out the background to the company and the claimant’s various assignments since commencement.He submitted that the claimant did not hit it off with the foreman on his initial assignment and that he tried “ to lead someone in a certain direction – works a lot of the time – sometime doesn’t work”.He asserted that the claimant had a superior attitude and considered himself to be more clever “ than all of us”.He submitted the claimant’s next assignment was not a success either.He stated the claimant got a written warning on the 3rd.Nov. 2016 and a second written warning in late 2016/early 2017.Mr.BOR submitted that he could have brought a number of people to give evidence to support these assertions.He contended that he tried to make it work rather than going down the disciplinary route. Under cross examination Mr.BOR was asked why he continued to employ the claimant and promote him if his behaviour was so bad.He alleged that the parking incident on the 6th.July was the “third wrong” that he spoke to AB and at that point they decided to let him go.He submitted that everybody knew the claimant could not take instruction.He said after hearing from the claimant on the 7th.July , he spent an hour considering what the claimant said before effecting the dismissal.He acknowledged that the claimant was capable of doing the work but argued that “ he played ducks and drakes” about signing his contract.Mr.BOR said that he did nt think he told the claimant that he was a very good worker. Ms.AMcA gave evidence on behalf of the respondent , stating that she had a lot of interactions with him.She said that she tried to introduce Health & Safety procedures but the claimant was aggressive and belittling – she recounted an incident re the wearing of PPE when “he stormed out the door” and was very abusive. Under cross examination , it was put to her by the claimant that he never sought a high visibility jacket |
Summary of Claimant’s Case:
In his complaint form the claimant submitted as follows:
“ I used to work in above company for around 2,5 years, my managers/ foremans never had any problem with me. 2 months before unfair dissmissal I was ensured by Mr.BOR that I am good employee, he is happy of my work etc. On 8/07/2016 i had accident at work. I have been waiting for almost one year for any compensation, but got nothing. In June 2017 I went to solicitor to claim with the Personal Injuries Assessment Board. My solicitor sent a letter dated on 26 June 2017 to my former employer in connection to my accident. On 6/07/2017 I recieved letter of my former employer saying that my attitude is unsatisfactory , I am uncooperative and he feels he has no other alternative but to consider terminating my employment. I met him on 7/07/2017 to talk about reasons why I recieved this letter. I was told there is lots of problems with me. When I asked him is this connected with the letter he recieved of my solicitor, he said: "You are making decisions and you are responsible for them". On 10/07/2017 my foreman handled me letter dated on 7/07/2017 from BOR about ceasing my employment with one week's notice. In my opinion this was not fair”.
In his direct evidence , the claimant argued that the respondent was raising matters at the hearing that had never been previously put to him .He submitted that his foreman Mr.AM had been very happy with him , that his contract continued to be renewed and that he was promoted by Mr.BOR which raised the question how could he be guilty of poor performance.
The claimant submitted his solicitor’s letter of the 26th.June 2017 which gave notice of a personal injury claim into evidence.He asserted that he his supervisors had no issue with him and that on the day of the parking incident , he only once parked at the production shed , that a manager parked beside him and had no issue with the claimant’s parking.He denied the accusations of Ms.McA .He acknowledged receipt of one written warning but denied he had been speeding on that occasion.
He asserted that he made several attempts to get work and had endeavoured to set up his own business on window tinting.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I have reviewed the evidence presented at the hearing and noted the significant conflict in evidence between the parties.I note the respondent was unable to present evidence of a written warning issued in Dec/2016/Jan2017.I further note that the respondent was unable to convincingly explain how he continued to renew the claimant’s contract and promote him in circumstances where he endeavoured to present the claimant as impossible to manage.I further note that the respondent was unable to present any records of the disciplinary meeting to confirm that the claimant was afforded his rights under natural justice and that the hearing was conducted objectively and in accordance with the company policy and procedures.I further note that Mr.BOR offered contradictory evidence relating to when the decision to dismiss the claimant was taken and at one point in his evidence indicated that the decision was taken the day before the meeting.In all of these circumstances , I consider the dismissal to be unfair and disproportionate.I consider the evidence of the Health and Safety Manager to have been credible and accordingly I find that the claimant made a contribution to his own dismissal.I am taking this into account in the quantum of the award.I require the respondent to pay the claimant €8,000 compensation within 4 weeks of the date of this decision.
Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
I note that the respondent indicated at the hearing that he was prepared to pay the claimant notice but has since resiled from same in his later submissions to the commission and asserted that he paid the claimant one weeks notice.This matter is not in dispute.Given that there is no exclusion provision in the claimant’s contract with respect to notice and that the claimant was signing back to back fixed term contracts , I am upholding this complaint and require the respondent to pay the claimant his outstanding period of one weeks notice within 4 weeks of the date of this decision.
Dated: 2nd November 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea