Complainant

Respondent

Anonymised Parties

An Employee

Warehouse and Transport Company

Representatives

Michael McNamara B.L.

Kate Hughes, Solicitor

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-00022437-001

05/10/2018

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

CA-00022437-002

05/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00022437-003

05/10/2018

The Complainant submitted 3 complaints, namely that he was unfairly dismissed, he did not receive his entitlement to statutory minimum notice and that he did not receive a statutory redundancy payment.

CA-00022437-001   Unfair Dismissals Act 1977

The Complainant was employed as a Forklift Operator from in or around 2008 (this was later amended in writing by the Complainant’s representative to 9th July 2007).   On 28th August 2018 he was called in to the Depot Manager’s office and told there was no future for him and he was being “let go”. He was then escorted off the premises. It is argued that in the circumstances where there were no disciplinary proceedings invoked against him and no written warnings, that the employer acted in complete contravention of their own procedures as outlined in their 2014 and 2016 Employee Handbook and that the Complainant’s dismissal was unfair.

CA-00022437-002   Minimum Notice & Terms of Employment Act 1973

The Complainant had a total of over 11 years’ service. He was employed from 9th July 2007 with the previous employer, and there was a transfer of undertakings to the current employer in or around 2015.   The Complainant seeks statutory minimum notice payment in lieu of 6 weeks’ pay.

CA-00022437-003   Redundancy Payments Act 1967

The Complainant seeks statutory Redundancy payment based on 11 years’ service.

CA-00022437-001   Unfair Dismissals Act 1977

The Company engaged in a review of its cost structure in July/August 2018. 6 staff were let go from the employment, the Complainant being one. Interview records and performance appraisal forms in relation to the Complainant were submitted in evidence. These show a consistent pattern of underperformance in relation to his daily duties, damage to company property and complete lack of essential skills in paperwork and I.T.   Attempts were made by Management to help the Complainant to no avail. The Company had no option but to let him go.

CA-00022437-002   Minimum Notice & Terms of Employment Act 1973

It is submitted that the Complainant was employed with the previous employer from in or around September 2009 and there was a transfer of undertakings to the current employer in or around 2015.

CA-00022437-003   Redundancy Payments Act 1967

The Complainant was replaced so statutory redundancy does not apply.

CA-00022437-001   Unfair Dismissals Act 1977

I note the Respondent’s evidence that the Complainant was counselled for underperforming and various problems relating to the carrying out of his duties.  I note the records of performance appraisal and corrective action interviews. These records were submitted in evidence by the Respondent only for the years 2013, 2014 and 2015, and no further records. I note the Respondent transferred the Complainant in order to try and find a more suitable job for him. This indicates a reasonable effort on the part of the Management and I find that the Complainant did contribute somewhat to the situation he found himself in. However,   the manner in which the Complainant was dismissed demonstrates the most unreasonable behaviour of the employer in this case.                I note the complete lack of procedures or fair process which goes against the law of natural justice and the Respondent’s own procedures as enshrined in their Employee Handbook. The Complainant was not given a fair hearing, the right to be represented, or the right of appeal.   The fact that the Complainant was escorted off the premises is a further egregious example of the lack of respect and respect for the dignity of the employee in this case.   In all the circumstances I find the Complainant was unfairly dismissed and I award him the sum of €30,000 compensation.

CA-00022437-002   Minimum Notice & Terms of Employment Act 1973

The Respondent in this case did not know if the Complainant was given pay in lieu of notice.   They thought he may have received one or two weeks. The Respondent was afforded a number of weeks to update the situation but no information was received. I note that, having over 11 years’ service, the Complainant would be entitled to 6 weeks minimum notice. I find his complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €2,270.

CA-00022437-003   Redundancy Payments Act 1967

As the Complainant was dismissed, and his job was filled, he is not entitled to statutory redundancy payment. I find his complaint to be not well founded.

Unfair dismissal, lack of procedures, minimum notice