Complainant

Respondent

Anonymised Parties

Digital Manager

A Factory

Act

Dispute Reference No.

Date of Receipt

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

CA-00027417-001

01/04/2019

On April 1,2019, the Claimant submitted a complaint of Unfair Dismissal to the WRC. He acknowledged that he did not have 12 months service and sought compensation because he had been treated during his 11 days of employment in March 2019.

The Employer represented by his Solicitor indicated a preparedness to participate in a hearing under the Industrial Relations Act. On 31 July 2019, the Solicitor came off record for the Respondent and both parties presented at hearing as Lay Litigants.

Neither party made a written submission outside of the complaint form. Both parties addressed the hearing outlining their respective positions.

The parties reached Agreement at the end of the hearing and this Agreement was projected as being settled in full on or before September 25, 2019. On September 27, the Claimant wrote to the WRC and confirmed that nothing had been implemented and requested that his case be followed up.

As the Agreement had not followed as promised by the Employer, I have moved to make a recommendation for the attention of both parties.

The Claimant outlined that he had commenced work as a Digital Manager on March 4, 2019. Prior to this he had interviewed for the position and spent time negotiating his terms and conditions. He was to earn a salary of €42,000 annually which incorporated a travel component to access the rural remote location of the business.

The Claimant said that he had paid great attention to the detail of the job and looked forward to a rewarding work experience. He engaged in establishing a marketing strategy and business plan alongside the Marketing Consultant.

On March 5, 2019, another employee, Ms A commenced work as the Employers Personal Assistant. The Employer seemed to favour her over the claimant.

On Friday March 15, The Employer informed the claimant that he had sent all employees off for the day. He then told the claimant that “things weren’t working out “and he was to leave immediately. He assured him that he would receive one month’s pay in lieu of notice. He assured the claimant that there was nothing wrong with his work but that he, himself was disorganised and did not require him any longer. He explained that he had wrongly pre-empted his business needs for the time.

The Claimant asked whether Ms A was affected by this decision? and was informed that matter was not up for discussion. the Claimant formed the view that she was not facing the same job risk as he had observed her on the premises as he was leaving.

The Claimant told the hearing that he has been devastated by the treatment he received at the Employers premises. He had left a promising career to join this employment and was left with nothing, no pay, no reference, no record of service, just empty promises. Any attempts he had made to contact the company had been thwarted by the Employer and while he had made efforts to find work in a niche market, he had been unsuccessful.

He submitted that his health and family relationships had suffered. The complainant stated that he had been unable to secure a letter from the Employer for Social Welfare (Job Seekers Benefit).

The Employer did not dispute the sequence of events outlined by the claimant. His sole addition was he acted as he did in the knowledge that he just knew that the employment was not going to work out. He immediately focussed on a Lap Top, business property, which the claimant had retained and used without permission. He wanted this piece of equipment returned and had recently contacted the claimant to that end, without response.

The Employer confirmed that he was prepared to pay the claimant what he was owed in an agreed time frame of September 25, 2019.

I have listened carefully to both parties as I investigated the Dispute raised by the Claimant. I appreciate that the claimant took a large leap of faith in going to work for the employer in the case. I have found that he took a measured approach to this position in trying to tie down his terms and conditions in advance.

It is regrettable that a contract had not come into being by March 4,2019 and this must remain a salutary lesson for the parties. I advised the Employer of recent legislative changes in issuing terms of employment commensurate to that period.

However, this case centres on the claimant’s submissions that he was unfairly dismissed. Both parties accepted that the claimant did not have enough service to ground a bona fide complaint of statutory unfair dismissal. I explained to the claimant that his references to Section 6 of the Unfair Dismissal Act were not relevant in this case.

Instead, I must investigate the facts raised by the claimant in accordance with the terms of the Industrial Relations Act 1969. If I find merit in the Dispute, I am to issue a recommendation to the parties. I have heard from both parties.

I have reflected on what I heard at hearing and what I have picked up on in my preparations for hearing. The Respondent, through his Solicitor agreed to participate at a hearing in this case. I appreciate that this gave the claimant a sense that the matter would be dealt with through procedure.

On the day of hearing, the Employer was preoccupied by the missing lap top until he eventually agreed to rectify the claimants unresolved issues. He gave a personal guarantee that he would honour the agreements within 4 weeks of the hearing date. He now appears to have resoled from this Agreement and it must be recognised as void.

I have considered the facts as presented and I have found merit in the Dispute.

The Labour Court has repeatedly held that summary dismissal must be governed by fair procedures and natural justice in a probationary setting. The most recent case of Beachside Company Ltd T/A Park Hotel, Kenmare and a Worker  supports this viewpoint. By hiring the claimant, the employer created an expectation that he would honour his commitment to at least pay the claimant, provide pay slips and a statutory record of pay (P45) and overall to treat him fairly.

I must conclude that the Employer behaved in an avoidant and wholly unacceptable manner in his treatment of the claimant. He was perfectly entitled to form a view that things had not worked out between them at his business, but he was charged with adopting a respectful communication style and most important, to follow through on what he said he would do by way of a termination payment.

While, I have reservations that reference to the company lap top remaining in the claimant’s possession may well be a ruse in the case. On the other hand, if there is a lap top out there with company data on it, it is reasonable for the Employer to recall and reclaim it and it would be unreasonable for the claimant to with hold it in the circumstances, irrespective of the understandable depth of his disappointment .

I am mindful of the time already passed in this case without a resolution. I now make one final recommendation for the way forward for the parties in good faith. I urge the parties to at least consider its content and act on it within a 6-week period of the day of reading.

The Employment has ended on a sour note, nothing will change this now outside my awarding an element of compensation for the wrong done to the claimant to afford closure on the case and to allow both parties to move on with their lives and business interests .I hope the claimant is successful in finding new work very soon   .

I have found merit in this Dispute.

Dated:     3/10/19

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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