Complainant

Respondent

Anonymised Parties

A Lorry Driver

A Waste Disposal Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022660-001

11/10/2018

The Complainant worked as a refuse truck driver for the Respondent.  His employment ended on 18th January 2018. He was paid an hourly rate of €9.25.  A complaint was lodged with the WRC on 11th October 2018.  

The Complainant stated that he had started working with the Respondent as an agency worker in July 2017.  There were issues regarding pay and hours of work at the outset with the agency.

On 21st November 2018, the Complainant was offered and accepted a permanent post with the Respondent.  Thereafter there were no issues relating to pay of hours of work.

While he was working for the Respondent the Complainant raised safety concerns to do with the manning of the truck, which sometimes only had one man at the back.

In January 2018, issues arose in relation to the trucks manoeuvrability in the treacherous road conditions brought about by the bad weather being experienced in that period.  On number of occasions the Complainant stated that the truck had difficulty getting up inclines in housing estates due to snow and ice.  The Complainant felt it unsafe to go up these slopes and on safety grounds did not do so.  He let his managers know whenever this happened. 

One such incident took place on 17th January 2018.  The following day the Complainant states that he was called into a meeting at the end of his round. There were two managers present and he was told by one, that his work was not up to scratch and that he was being let go. The manager told him that he had let her down regarding an incident in December and this had inconvenienced her.  The manager told him that the company had done a review of his work and he was being let go.  When the Complainant asked when he was being let go he was told that his dismissal was immediate.  The Complainant estimated that the meeting lasted about five minutes.

The Complainant stated that he was let go on a Thursday and got a job with similar or better conditions the following Monday.

The day before the hearing the solicitor representing the Respondent wrote to the WRC stating, inter alia:

"Having reviewed the relevant provisions of the Industrial Relations Acts and considered the judgements of the High Court and Court of Appeal in Mullally & Ors. –v- The Labour Court & Another [2016] 3 I.R. 245, please note that the respondent will not be participating in tomorrow's hearing.  We are writing this letter to you as a matter of courtesy and our legal team will be in attendance tomorrow to formally communicate this position to the assigned Adjudication Officer.

"we are satisfied that there is no valid trade dispute in existence or apprehension between the parties and are further satisfied that the complainant's dismissal during his probation period was fair in all the circumstances."

On the day of the hearing the Respondent's legal team attended the hearing but stated that they had instructions not to engage and were only attending out of respect.  Having outlined their position the Respondent's legal team left the hearing.

Having reviewed the Case File I found that the Respondent had been written to by the WRC on the 19th October 2018, asking them if they objected to the case being heard by an Adjudication Officer.  The Respondent had not objected to the case being heard by an Adjudication Officer within 21 days.

I am satisfied I have jurisdiction in the case.

The claim of Unfair Dismissal here is under the Industrial Relations Act, 1969 as it cannot come under the Unfair Dismissal Act, 1977 due to the short service of the Complainant.

However, this does not mean that the guiding legal principles of Natural Justice do not apply.

A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

 Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules of Natural Justice.

In this case, the rules of Natural justice were not applied in any manner or means. There was no investigation into the matter. The Complainant was dismissed without warning, he was not given an opportunity to defend his position and was not afforded the right of representation. There was no right of appeal.   The sanction of dismissal was totally disproportionate, and it does not seem any other sanction was considered.

On a legal basis and put simply, not having twelve months’ service and being on probation, does not mean that all employment rights based in Natural Justice go “out the window” so to speak.

Having reviewed and considered all the evidence both written and oral I have come to the view that this was an Unfair Dismissal.

 In deciding the sanction, I take into account that the Complainant was only out of work for one day and therefore his loss was minimal.

I find the complaint is well founded and I recommend the Respondent should compensate the Complainant by the payment of €1,000.

Procedures, unfair dismissal, Natural Justice