LCR21911

• “In the circumstances I am satisfied that the dismissal was procedurally unfair. Having regard to the length of service involved and the worker’s contribution to the dismissal I recommend that the worker be paid €500 as a once off ex-gratia payment”.

It is common case that the Worker informed the Company prior to the commencement of his employment in October 2017 that he had made arrangements to travel to his home country with his family over the Christmas period i.e. from 27 December 2017 until 16 January 2018. His arrangements in this regard were provided for in the shift roster. The Worker attended for duty from 7.00 pm on 24 December 2018 until 7.00 am on Christmas Day. He was also rostered to work from 7.00 pm on 26 December until 7.00 am on 27 December 2018. However, he did not attend at his workplace for that shift and did not give advance notice to his supervisor that he wouldn’t be available for work. The Company’s Security Manager, Mr H., contacted the Worker by telephone to enquire as to why he was absent from work and discovered that the Worker was already at the airport and waiting for his flight. Mr H. advised the Worker that he was to contact him on his return on 16 January 2018 to arrange a performance review meeting. As it transpired, the Worker did not return to Ireland until 18 January 2018.

The Worker made telephone contact with Mr H. on 18 January 2018 and was invited by him to attend a meeting later that day at UHL to discuss his performance in the role of Security Operative at UHL. The Worker was offered the right to bring a representative to the meeting but declined to do so. During the meeting, Mr H. raised a number of issues with the Worker: his failure to attend for his rostered shift on 26 December 2017; his failure to make contact with Mr H. on 16 January to arrange a meeting to discuss his performance; and specific incidents that had occurred in the workplace during December 2017. The outcome of the meeting was a decision to the effect that the Worker had failed his probationary period and he was to be dismissed immediately with payment in lieu of notice. This was confirmed by letter dated 19 January 2018.

The Worker exercised his right of appeal to Mr Anthony Harman, Public Sector Director of the Company. An appeal meeting took place on 20 February 2018 at UHL the outcome of which was communicated to the Worker by letter dated 27 March 2018 in which Mr Harman confirmed the Company’s original decision to terminate the Worker’s employment due to the performance issues that had arisen during his probationary period, including his failure to attend for work as rostered on 26 December 2018 and his failure to make contact with his manager on his return to Ireland in January 2018.

The Union submits that the Company failed to comply with the Code of Practice on Disciplinary and Grievance Procedures (S.I. 146 of 2000) in effecting the Worker’s dismissal. The Union is seeking compensation as is just and equitable to reflect what it alleges amounts to a lack of fair procedures by the Company.

The Company submits that it had become very apparent over a three-month period that the Worker was unsuitable for the position of Security Operative and by the time of the meeting on 18 January 2018. The Company further submits that the Complainant’s non-attendance for his rostered shift on 26 December 2017 and his failure to make contact with his manager as agreed on 16 January 2018, in particular, justified its decision to discontinue his employment.

Recommendation

This Court has consistently emphasised that an Employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a Worker during the Worker’s probationary period or to dismiss the Worker during or at the conclusion of that period. The manner in which the Company in this case dealt with the Worker’s performance issues leaves much to be desired: he should have been informed in writing in advance of the issues that fell to be considered at the meeting of 18 January 2018 and he should have been expressly informed that his dismissal was a possible outcome of that meeting.

Undoubtedly, however, the Worker did himself no favours at all. He knew or ought to have known that he was rostered to work a night shift on 26 December 2017. If he was unable to complete that shift due to the timing of his flight on the 27^th, he should have spoken with his supervisor in advance so that the supervisor could have arranged for somebody else to work the shift in his place. Likewise, it appears to the Court that the Worker was less than candid with his employer about his scheduled return date from his home country.

In all the circumstances, the Court finds that the Worker contributed very significantly to his own dismissal. On that basis, the Court does not recommend that any compensation is payable to the Worker.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
LS______________________
07 March 2019Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.