ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022447
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Transport Company |
Adam Zurek Interpreter
Complaints:
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-00029095-001 | 17/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029095-002 | 17/06/2019 |
Date of Adjudication Hearing: 29/10/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Driver from 18th July 2016 to 9th April 2019. He was paid €401.45 per week. He has claimed that he was unfairly dismissed and did not get minimum notice. He has claimed compensation. The same complaint was also presented in ADJ 22448. It was confirmed at the hearing that ADJ 22448 was withdrawn. |
1)Unfair Dismissals Act CA 295095-001
Summary of Respondent’s Case:
The Respondent stated that on 4th April 2019 an incident occurred on site of one of their clients which involved the Complainant. The Client contacted the Respondent to advise that they did not want the Complainant back on their site again due to his aggressive nature and abusive language. He was spoken to that day and told that a disciplinary hearing would take place the following day 5th April 2019. He was offered the right to representation. On 5th April the meeting took place and the Complainant was unaccompanied. He was asked to comment on the incident of 4th April, but he just shrugged his shoulders and failed to engage. His conduct was deemed gross insubordination. Also, he had refused to carry out a lawful instruction to commence his shift at 7.00am instead of 5.00am. A decision was taken to dismiss him and this was confirmed in writing on 9th April. He was given the right to appeal the decision. An appeal hearing took place on 2nd May 2019. It was confirmed at the appeal hearing that given the gross insubordination and the Client’s refusal to have him back at the site the decision to dismiss was upheld. They relied upon Sec 6(4) of the Unfair Dismissals Act to effect the dismissal. His rude and objectionable behaviour towards a member of the Client’s staff was unacceptable. The dismissal was procedurally fair also. If there was any unfairness in the procedures applied, it did not render the dismissal unfair. They cited case law in support. The decision to dismiss was a fair and reasonable response. |
Summary of Complainant’s Case:
The Complainant stated that he usually started at 5.00am. He got less than 24 hours notice to change start times. He had a child to collect at the end of the shift and he would not be able to do his calls in the city centre. So, he started work at 5.00am that day. He was spoken to by management. There was no incident with the Client company. The next day he was called to a meeting, he had no notice. He was dismissed at that meeting. He appealed the decision but the decision to dismiss was upheld. It is his position that there was no incident with the Client company, he did nothing wrong. He was treated unfairly. The dismissal was unfair. He started looking for work after two weeks and he found a similar job after five more weeks from date of dismissal. He is seeking compensation.
Findings and Conclusions:
I note the conflict of evidence in this case. I note the Client company told the Respondent that they did not want the Complainant back to their site. I find that the Respondent did not carry out an investigation into the alleged incident or request a statement from him. They have had a long trusting relationship with that Client and did not disbelieve him. However, I find that they did not interview the Client’s employee who made the allegation. I find that the person making the allegation was not identified to the Complainant. I find that it is a basic right for a person to be made aware of what they are being accused of and who is making that accusation. I note that in cross examination it was established that the Complainant was not notified in advance of the disciplinary hearing. I find that he was not put on notice of the potential for a dismissal outcome. I find that the decision to dismiss was made at the hearing and may well have been predetermined. I find that the Respondent did not consider alternatives to dismissal. I note that the Respondent stated that they had no alternative job to offer him despite employing 65 + staff. I find it most unusual that a Client company would not want a person on their site that they had worked with for a number of years unless there was a good reason to do so. Therefore, I find on the balance of probability that something must have happened, but the Respondent did not seek to properly investigate it. I find that the dismissal was substantively unfair because the Respondent failed to properly investigate the alleged incident and to determine the gravity of the situation. I find that the dismissal on procedural grounds was hopelessly unfair for the above stated reasons. I note that the Complainant did not seek work for the first two weeks after his dismissal and then found similar work and after five weeks of looking. |
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.
For the above stated reasons, I have decided that the dismissal was both substantively and procedurally unfair.
I have decided that the claim is well founded.
I have decided that the Respondent should pay the Complainant €2,000 in compensation for the unfair dismissal. This is to be paid within six weeks of the date below.
2) Minimum Notice & Terms of Employment Act CA 29095-002
Summary of Complainant’s Case:
The Complainant was unfairly dismissed and was not paid minimum notice. |
Summary of Respondent’s Case:
The Complainant was summarily dismissed for gross misconduct and as a result the notice period did not apply. |
Findings and Conclusions:
I refer to the decision in the unfair dismissal case CA 29095-001 above, in which I have found that the Complainant was unfairly dismissed. I find that he did not receive minimum notice. I find that he is entitled to two weeks pay as per the terms of this Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the claim is well founded.
I have decided that the Complainant should have received two weeks’ pay in notice.
I have decided that the Respondent should pay the Complainant €802.90 within six weeks of the date below.
Dated: 02-12-2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissal Minimum notice |