Complainant

Respondent

Anonymised Parties

An IOS Mobile Engineer

A Technology Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018029-001

17/03/2018

This is a case involving a claim for Unfair Dismissal on foot of having made a Protected Disclosure. The Respondent refuted the claim and pointed to an absence of a protected disclosure known to the company. The parties presented their case by oral submission and a copy of the contract of employment was presented at the hearing.

The Complainant is an Egyptian national living in Ireland. He worked as an iOS Mobile Engineer with the Respondent Technology company from 28 August 2017 to 6 March 2018. He worked a 40-hour week in return for a gross salary of 41,000 euro per annum. The Complainant told the hearing that he was dismissed on 6 February 2018 and received 1 months’ pay in lieu of notice. He was greatly aggrieved at the way he had been treated by the Respondent and sought the remedy of compensation. He had secured new work four months post dismissal on a much higher salary.

The Complainant gave an outline of his case as a lay litigant accompanied by his wife as support. He detailed that he had been hired on foot of 1.5 years’ experience in the role of iOS Mobile Engineer. He passed his probation period on 28 November 2017. This was confirmed to him verbally. The Complainant presented an unsigned contract of employment dated 15 August 2017.

The Complainant described being involved in a fast-paced work place, where he mostly worked on the web site, having a brief cross over period on the mobile app area prior to an additional employee joining the company.

The Complainant outlined two specific periods where without notice, everyone was asked to stay late without a specific reason. During the first period he was refused permission to leave the site. This was relaxed when he submitted specific family reasons for having to leave. Everyone else remained on until 1am that night. The second event preceded his dismissal in February 2018.

One day before the Christmas break in 2017, the complainant received details of his performance review and calculation of bonus at 92 euro. The Complainant described being shocked and disbelieving at this outcome which he believed fell far short of his actual contribution to the workforce. He tried to address it directly with the CEO but he didn’t wish to engage and requested email contact. He planned to raise it after Christmas but he let it go.

The Complainant became uncertain regarding his position in February 2018, when another worker was hired. He sought assurances on job security and was assured by the CEO that “no one was going to be fired “

In early February 2018, following the weekly team meeting, his team were requested to complete a task deemed by him as “un do-able”. The Complainant gave evidence of his reservations on the viability of the request which he said was shared by others. The Team Leader allowed the team to leave at 5.30 pm and undertook to speak to the CEO on their behalf.

The following Monday, a discussion ensued on the floor in the wake of non-adherence to the task deadline. The Discussion was combative amongst the Technical Team and focussed on the lack of a commodity of “Tester “to support task completion.

The Complainant submitted that he was subsequently asked to attend the CEOs office straightaway and informed that his employment was ended. The meeting lasted 5 minutes, during which he was asked to sign “closure documents”. He refused to sign these documents. He explained that he very upset and “almost cried”. He said good bye to his colleagues. The Complainant outlined a high level of dissatisfaction at the treatment he received at the company against a clean employment record and a continuous dedication to his work.

The Complainant submitted that his departure was poorly managed from an administrative point of view and a delay in issuing a P45 left him without money for 1.5 months and placed him in financial hardship. He eventually secured his full job seekers benefit but lamented the disturbance in employment would have on his application for citizenship.

During Cross examination, the complainant confirmed that he had not submitted a protected disclosure to the respondent. He had not lodged a grievance and he was not owed any monies by the Respondent.

In response to the Adjudicators questions, he confirmed that he believed that he was the only member of his Team with short of 1 years’ service. He had not received a formal induction in the company, outside a high volume of documentation without explanation. He re-affirmed that he had not submitted a protected disclosure but had been advised to submit his complaint seeking a relaxation of the 12-month rule.

The Respondent submitted that the Complainant was an underperforming employee and the employment relationship had not worked out. The Respondent had regard for the impact of the decision taken to dismiss on the complainant and suggested that the complainant had a clear entitlement to seek reasons for his dismissal in accordance with Section 14 of the Act.

The Respondent submitted that the Complainant had not lodged a protected disclosure and this was sufficient grounds alone for the complaint to fail.

I have considered both parties’ submissions in this case. There is a statutory requirement for 12 months service to ground a claim for Unfair Dismissal in this jurisdiction. There are some exceptions to this precondition. Section 6(2) (ba) of the Act allows a waiver of the 12 months in the case of the existence of a Protected Disclosure.

The Complainant submitted that he had exercised his rights under the Protected Disclosure Act on his complaint form but distanced himself from this in direct evidence and cross examination. It was accepted by both parties that a Protected Disclosure was not in being.

The Protected Disclosure Act, 2014 enacted in July 2014 is accompanied by a very useful code of Practice on Protected Disclosures in SI 464/2015.This code underpins the principle that:

“The disclosure of information relating to wrong doing in the workplace is best dealt with in the first instance at workplace level. However, there may be circumstances where this may not be appropriate; It is in the interests of employers, workers and their representatives to have in place clear and agreed procedures providing for “whistleblowing “in the workplace.”

To enjoy the protections of the Act, disclosures must be made in accordance with the provisions set out in the Act. Motivation is irrelevant, what is required is that a worker has a reasonable belief as to wrongdoing and that this wrongdoing has come to the workers attention about his employment (Section 12 of the Code of Practice/Section 5 of the Protected Disclosure Act ,2014).

I note that the Respondent had not yet incorporated a Policy on Protected Disclosure in the staff handbook. At the hearing, I advised the Respondent to consider adopting such a Policy.

I have reflected on the complainant’s evidence. The Complainant told the hearing that he was satisfied that he got an opportunity at the hearing to set out his level of dissatisfaction at how he was treated by the Respondent. He stated that he did not wish to see this happening to anyone else.

I have also reflected on the Respondent response to the claim and note the absence of any procedural framework or documentation surrounding the dismissal at the center of the case.

However, it is common case that there is no protected disclosure in this case. There are therefore no grounds on which I can apply a waiver of the 12-month qualifying service clause in accordance with Section 6(2) (ba) of the Act.

The claim for Unfair Dismissal has not succeeded.

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.

I have found that the claim for Unfair Dismissal has not succeeded.

Protected Disclosure