Complainant

Respondent

Anonymised Parties

A Machine Build Technician

An Automation Company

Representatives

 Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00017216-001

01/02/2018

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

CA-00017216-002

01/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017216-003

01/02/2018

The complainant commenced employment on 6th June 2016 as a Machine Build Technician and his weekly gross wage was approximately €540 and he worked approximately 24 hours weekly. His employment ceased on 12th September 2017. His complaints were that: he had not received his minimum notice, he had been unfairly dismissed and that he never received his terms and conditions of employment.

The complainant withdrew this complaint.

The complainant detailed that he commenced employment on 6th June 2016 and shortly afterwards there was a brief lay-off period of approximately 6 weeks when the respondent kept in regular contact and the complainant returned to work a short time later.

The complainant was requested to attend a customer site (Company X) on 5th September 2016 where the complainant was instructed to undertake both mechanical and electrical work. On a number of occasions employees of Company X told him that the work did not look correct and he asked one of the employees of the respondent who was also working on site if he was carrying out the work correctly and he was advised that it seemed fine.

He returned to Company X the following day but received notice from Mr A, the respondent’s project manager, that he was no longer needed there and to return to the respondent site. Around 12th September 2016, the owner, Mr B, who had been away in China asked to see him.

Mr B said that Company X no longer wanted the complainant working there as they were not happy with his work. The complainant asked what this meant, and Mr B replied you are ‘blacklisted’ and ‘shafted’ and that it would be best if he finished up.

As the complainant reflected on what had happened he was very annoyed that he had been dismissed and phoned Company X and spoke to the supervising engineer there and expressed his annoyance with what had happened. He detailed that he was reassured by Company X that he was not ‘blacklisted’ but that company X were annoyed that the respondent had charged Company X for a fully qualified electrician and that the complainant was not a fully qualified electrician.

The complainant received a phone call from Mr B who was annoyed that the complainant had contacted Company X. There was a heated exchange and he was told he would be issued with his P45 which he received and his final payslip.

A letter was sent on 28th September by the complainant’s representative, but no response was received.

It was detailed that the complainant was unfairly dismissed without any disciplinary procedure and was not afforded the laws of natural justice including the right to state his case and have a full investigation.

The reasons for dismissal were vague and unjustified and he was never afforded the right of representation.

The respondent did not attend on the day

The Respondent submitted a submission in advance in relation to the complaints. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

In their submission the respondent outlined that the complainant did not have the pre-requisite service and that he had never passed his probation, was never made permanent and did not work full-time.

It was detailed that Mr B was away on a business trip and it was Mr A who had responsibility for the workers on the site of Company X. Mr B was advised that Company X were unhappy with the ability of the complainant and reference was made to him not having his tools on the second day.

Mr B met with the complainant on 12th September and detailed in his submission that the complainant was irate over events that occurred with Company X. Mr B advised him that he had not yet spoken with Company X and that he would do so and revert to the complainant. He was surprised a short time later to receive a call from Company X detailing that the complainant had contacted them directly.

He phoned the complainant and told the complainant he had made things worse and the complainant said he did not want to work the respondent. As he had resigned, his P45 and final monies were forwarded.

It was detailed in the submission that the complainant contacted the respondent and threatened to go to the papers unless the respondent paid him €3,000 by way of compensation.

Preliminary Issue

It was detailed in correspondence received from the respondent, in advance of the hearing that the complainant did not have the pre-requisite length of service. However, in the respondent’s submission they outline that complainant commenced employment on 6th June 2016 and that his employment ceased on September 12th, 2017. I find, therefore, that the complainant has the pre-requisite service.

With regard to the substantive issue, I note that the respondent did not attend but again in his submission, sent in in advance, he details that the complainant resigned his position. The complainant disputed this at the hearing and states that he was dismissed.

I note that some details do notappear to be disputed between the parties including that the complainant was advised that he was no longer required to work at Company X, that the complainant queried this directly with Company X and that a follow up phone call took place between the respondent and the complainant.

What is in dispute, includes whether the complainant resigned or whether he was told to leave.

Section 1 of the Unfair Dismissals Act 1997 provides that:  

"dismissal", in relation to an employee, means—

(a) the termination by his   employer of the employee's contract of employment with the employer, whether   prior notice of the termination was or was not given to the employee.

(b) the termination by the   employee of his contract of employment with his employer, whether prior   notice of the termination was or was not given to the employer, in   circumstances in which, because of the conduct of the employer, the employee   was or would have been entitled, or it was or would have been reasonable for   the employee, to terminate the contract of employment without giving prior   notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the   same contract or, in the case of a contract for a specified purpose (being a   purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of   the purpose;

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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”.

Section 4 details “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. “

Furthermore, (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

I have taken all the evidence into consideration including the circumstances of the conversations between the parties, which it would be expected in the circumstances was a heated conversation. I furthermore, note that as the complainant followed up directly with Company X after the first conversation with the respondent, it would suggest that he was upset with the conversation with the respondent and was not just sitting back awaiting word from the respondent which the respondent seemed to suggest in their submission. I, therefore, find the complainant’s version of events relating to the termination of his employment to be more credible and I find that the complainant was dismissed.

The next issue to be considered is whether the dismissal was fair or unfair. Having found that a dismissal occurred there is a requirement for fair procedures and a fair hearing has been reinforced in Gallagher v Revenue Commissioners [1995] E.L.R. 108 (No.2) [1995].

Ultimately, where “the principles of natural justice were not complied with” the decision to dismiss has been deemed unfair as determined in Vitalie Vet V Kilsaran Concrete, Kilsaran International Ltd [2016] 27 E.L.R. 237.

Based on all the circumstances, I find that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded.

In assessing redress, the complainant had requested compensation and in respect of mitigation, the complainant outlined that he is currently self-employed and is looking to upskill.

With regards to efforts to mitigate his loss, the complainant provided details of approximately 6 attempts to mitigate his loss which he sent in after the hearing and I note that there are no dates detailing when these applications for employment were made.   They do not meet the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

The complainant details his weekly gross pay as approximately €540. I award the complainant 20 week’s compensation which takes into consideration limited proof of efforts by him to mitigate his loss and reduce this by a further €4,000 reflecting the income that he received when self-employed. I, therefore, direct the Respondent to pay the Complainant the sum of €6,800.

The complainant detailed that he never received his terms and conditions of employment and detailed that despite an extensive search of his email box, he had never been emailed his terms and conditions.

The respondent did not attend on the day

The Respondent submitted a submission in relation to the claim. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

In their submission the respondent outlined that a contract of employment was emailed to the complainant on 23rd June 2016 and provided a copy of same and outlined that the claim was out of time.

The complainant disputed his receipt of any terms and conditions and the respondent did not attend the hearing to have their evidence examined.

In the absence of any direct evidence from the respondent, I prefer the evidence of the complainant and declare that the complaint is well founded and succeeds.

CA-00017216-001

This claim was withdrawn.

CA-00017216-002

I find that the decision to dismiss was unfair and I award the complainant 20 week’s compensation which takes into consideration limited proof of efforts by him to mitigate his loss and reduce this by a further €4,000 reflecting the income that he received when self-employed. I, therefore, direct the Respondent to pay the Complainant the sum of €6,800.

CA-00017216-003

I find that the complaint is well-founded and I order the respondent to pay the complainant compensation of €1,200.

Unfair dismissal, terms and conditions, respondent did not attend