ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017348

Parties:

	Complainant	Respondent
Anonymised Parties	An employee	Warehouse and Transport Company

Representatives

Michael McNamara, B.L.

Kate Hughes, Solicitor

Complaints:

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-00022447-001	05/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00022447-002	05/10/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00022447-003	05/10/2018

Date of Adjudication Hearing: 12/09/2019

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 –2015 and Section 11 of the Minimum Notice and Terms of Employment Act 1973,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

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

Summary of Complainant’s Case:

CA-00022447-001 Unfair Dismissals Act 1977

The Complainant was employed from October 1998 to 28th August 2018 when he was summarily dismissed without due process or notice. In the circumstances where the Respondent failed to adhere to basic procedures including those contained in their Employee Handbook, the Complainant was unfairly dismissed.

CA-00022447-002 Redundancy Payments Act 1967

The Respondent failed to offer the Complainant a statutory redundancy payment.

CA-00022447-003 Minimum Notice and Terms of Employment Act 1973

The Complainant had almost 20 years service and was entitled to minimum notice of eight weeks or pay in lieu thereof.

Summary of Respondent’s Case:

CA-00022447-001 Unfair Dismissals Act 1977

A number of issues pertaining to the Complainant’s performance arose, particularly during the last 12 months of his employment. He performed more as a Team member/Operator rather than Team Leader and he was in fact demoted in July 2018. It is argued that, by accepting his demotion, that the Complainant acknowledged his shortcomings in work performance and that he knew the direction in which his employment was going. Following a grievance lodged by the Complainant against the Depot Manager, the Complainant’s work performance was discussed with him and his various objections to work targets and overtime requirements and cover for annual leave. The Complainant’s performance continued to deteriorate even after he was demoted. The Respondent therefore had no option but to terminate his employment.

CA-00022447-002 Redundancy Payments Act 1967

The Complainant was not entitled to a statutory redundancy payment, as his position was filled.

CA-00022447-003 Minimum Notice and Terms of Employment Act 1973

The Respondent submits that some payment in lieu of minimum notice was paid to the Complainant.

Findings and Conclusions:

CA-00022447-001 Unfair Dismissals Act 1977

I note the problems the Respondent had with the Complainant’s performance and that some of these were aired during grievance meetings with him. However, this did not constitute disciplinary proceedings. I find that the complete lack of procedures as in verbal and written warnings, right to be heard, and right of appeal goes against the rules of natural justice and the Respondent’s own procedures as contained in the Employee Handbook. I find that the Complainant was unfairly dismissed. I note that he took up employment elsewhere some three months after the termination of his employment by the Respondent. I require the Respondent to pay to the Complainant the sum of €7,000.

CA-00022447-002 Redundancy Payments Act 1967

The Complainant is not entitled to a statutory redundancy payment as his position was filled. I find the complaint to be not well founded.

CA-00022447-003 Minimum Notice and Terms of Employment Act 1973

The Complainant had almost 20 years service and was entitled to minimum notice of eight weeks or pay in lieu thereof. There was a conflict of evidence as to whether the reduced wages of the Complainant was accepted by him. I note he did not accept criticism of his performance, let alone demotion. I therefore conclude that he was demoted under protest. I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €4,736.

Decision:

CA-00022447-001 Unfair Dismissals Act 1977

I have decided that the Complainant was unfairly dismissed. I require the Respondent to pay to the Complainant the sum of €7,000.

CA-00022447-002 Redundancy Payments Act 1967

I have decided that the complaint is not well founded.

CA-00022447-003 Minimum Notice and Terms of Employment Act 1973

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €4,736.

Dated: 23rd October 2019

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Unfair dismissal, no fair procedures, minimum notice