Complainant

Respondent

Anonymised Parties

Driver

Concrete manufacturer.

Representatives

Self-represented

Respondent director

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-00028642-001

24/05/2019

The complainant commenced employment on the 10 June 2013 as a driver with the respondent.

He worked 40 hours a week and had a weekly gross salary of €670.

On the 18th of May 2019 the complainant was summarily dismissed from his job without any written or verbal warning.

The dismissal is not contested.

He submitted his complaint to the WRC on 24/5/2019.

The complainant has worked as a driver with the respondent since 10 June 2013.

He states that he was mentally and verbally abused by the respondent director on the 18th of May. Having finished deliveries, the complainant returned to the workplace and gave the respondent the keys of the lorry. The respondent director called the complainant names and stated he was working for him but doing other work in company time. This is incorrect. During his routine deliveries the complainant received a call from one of the respondent’s clients to whom he had delivered two days previously. The client asked the complainant to move the concrete slabs on to another location from the original delivery point. This is commonplace, and the respondent never had a previous problem with this. But he did this time.

On arriving to work on Saturday morning, 19 May, the respondent stated that there was no job for the complainant. The respondent displayed ill humour towards him previously. In April, the complainant rang in sick. The respondent retorted that he was giving him two weeks’ notice to find a new job. But when the notice was up, he was told to forget about it to come into work the following Monday.

The respondent changed his pay date from Thursday to Friday without any advance notice.

The complainant never received a contract of employment.

The complainant took up an alternative position, earning the same salary, one week after having been summarily dismissed.

He is seeking payment of the statutory four weeks’ notice.

The respondent accepts that he dismissed the complainant on the 18 May. He had come to the end of his tether as the complainant had been unreliable on many occasions.

On 18 May 2019 he assigned the complainant to two deliveries, one in Malahide, the other in Donnycarney. Later in the afternoon he checked the tracker which the complainant had and found he was in Donaghmede which is not on the route from Malahide to Donnycarney. He discovered that he had done two ten-minute calls to separate locations which were not part of his assignment on the 18 May. The respondent telephoned him to enquire as to these calls and the complainant replied that he was doing a favour for a friend. The respondent told him to proceed immediately with the assignment given to him earlier, that he was unhappy with this deviation from his assignment and that he would speak to him later.

When the complainant returned to the base, the respondent told him that he had no business doing favours for friends on company time and in a company truck. The crates delivered were not the respondent’s crates. The complainant replied “what’s your problem. So, I kept you waiting 10 minutes, so what”. The complainant started to abusive him verbally, was extremely angry and the respondent had to back away from him. He told the complainant he was fired. The complainant returned to work the following morning the 19 May. The respondent advised him that he was no longer required. Again, he became very abusive and angry towards the respondent.

The respondent disputes the complainant’s statement that he was moving crates for clients from one location to another as the respondent does not provide that service.

The respondent states that he has numerous work-related issues with the complainant. He has proved unreliable in his time keeping, was prone to no-shows, and was frequently unable to attend because of family issues. On two occasions the respondent had to engage alternative drivers at a cos to himself. He is a good driver and crane operator, but this time he went too far.

He states that the dismissal is not unfair.

Regarding notice, the respondent did not object to consideration of this complaint but stated that no entitlement to notice arises in respect of gross misconduct and summary dismissal which was the situation with this complainant.

I am required to establish if the complainant was unfairly dismissed.

The Unfair Dismissals Acts, 1977 – 2015.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

Though the respondent referred to previous instances of the complainant’s unreliability, he accepted that he had never formally warned him or put him through any disciplinary procedure.

I find that the complainant’s behaviour, though unacceptable and problematic for the respondent and meriting a sanction falls shy of what would be considered the “substantial grounds” necessary to justify a dismissal.

Section 5 of the Unfair Dismissals (Amendment) Act 1993 allows for regard to be had to the conduct of the employer in determining if a dismissal is unfair.

There was no formal disciplinary policy in place. That being the case S.1. 146 of 2000 sets out the obligations which lie with employers in a disciplinary or dismissal process.

“the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures”

The complainant’s description of how his dismissal occurred is not in dispute. Contrary to the obligations set out in S.1. 146 of 2000, the complainant was not advised in writing of the charges facing him. There was no advance notice, no examination of the alleged complaints, no opportunity to be accompanied at the meeting which resulted in his dismissal, or right of appeal was afforded to the complainant. The decision to dismiss was predetermined. No opportunity was given to the complainant to defend himself.

The complainant was deprived of any process conforming to the requirements of natural justice.

I find no substantial grounds as set out in section 6 (4) of the Act existed to warrant the dismissal. I find the dismissal to be also procedurally fair.

Given that I find his summary dismissal to be unfair, I find that he is entitled to four weeks’ notice.

Loss.

The complainant secured employment one week after his dismissal on the same salary.

I award the complainant €555 which equals one week’s salary.

In addition, I award the complainant €2680 in respect of his notice entitlements. The latter sum is subject to all lawful deductions.

I find the complaint to be well founded. I award the complainant €555 in respect of his complaint under the Unfair Dismissals Act, 1977. In addition, I award the complainant the sum of €2680 which equals four weeks’ notice and which sum is subject to all lawful deductions

The total sum to be awarded is €3,235.