ADJ-00014524

Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

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-00018920-001

03/05/2018

The complainant commenced employment with the respondent on the 10th August, 2015 his employment was terminated with effect from 14th February 2018. The complainant’s employment was terminated by reason of his wholly unacceptable time keeping record. Initially the complainant was employed on a fulltime basis as a carpet fitter. However, he suffered a very significant injury in late 2015 and did not return to work until September 2016. He was out of work for a period of 46 weeks. During that time the then managing director who was his Uncle of the complainant gave him some money on a few occasions so that he could get by during his period of leave. The respondent also had a benefit night for the complainant and raised the sum of €5,000.00. In March, 2017 the Complainant requested that he be moved to three days a week as he felt he was incapable of carrying out his duties five days a week. He was consistently late for work. The respondent spoke to him formally and informally approximately 20 times between February 2017 and February 2018. He was also given four written warnings in relation to his lateness. On each occasion the complainant was asked to sign the warning but he refused to do so. On the 12th of February, 2018 he was told that if he was late again he need not bother coming back into work as his employment would be terminated. The respondent considered that his final warning. On the 14th February 2018, two days later, he was late again. The respondent texted him and told him that his employment was been terminated as per the final warning given to him two days earlier.

The respondent is of the belief that the complainant commenced working for his brother, who is also a carpet fitter, immediately upon his employment been terminated. In response to the complainant’s submission that he has not been able to secure employment the respondent stated that currently it is extremely difficult to find carpet fitters in the industry and the respondent is struggling to keep up with its customer demands due to the lack of carpet fitters available. It is submitted that if the complainant actually had sought work as a carpet fitter he would have secure employment immediately.

The complainant accepts that the respondent spoke to him on numerous occasions about him being late. He stated that the reason he was late for work was because he suffered a brain injury in the accident in 2016 and as a result suffers from short-term memory loss. On many occasions when he arrived at the bus stop, he realised that he'd forgotten his bus pass and would have to go back to get it. That made him late. He always called in to say he was on his way when this happened. Whilst the complainant accepts that the respondent spoke to him over 20 times in relation to him being late, he denies that he was ever given a written warning in relation to the issue.

The complainant has not worked since his employment was terminated with the respondent. He is in receipt of disability from the Department of Social Welfare. He did try and get employment from two of the respondent’s competitors however because he doesn't drive and can't do a full weeks work, he has been unable to secure employment.

The complainant in this matter alleges he was unfairly dismissed from his employment.   The respondent states that the dismissal was fair and proportionate in all the circumstances.

S6 (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

I accept the respondent’s evidence that the complainant was consistently late for work, was spoken to over 20 times in relation to the issue and was issued with four written warnings which he refused to sign. The complainant was issued with a final warning on the 12.02.2018 and two days later was late again. It was reasonable for the respondent in those circumstances to terminate his employment. However, I find that the respondent’s procedures were flawed. Firstly, they terminated the complainant’s employment by text message. Secondly, they did not give him a right to appeal the decision. I also note that the complainant has been unavailable for work due to the injury he sustained in the accident in 2015.

Whilst I find that technically, due to the flaws in the respondent’s procedure, the claim succeeds I can only conclude, in the circumstances of this case, that the complainant contributed 100% to his own dismissal and for that reasons together with the fact that the complainant has not been available for work, I am making no award.

The claim succeeds. I am making no award.