Complainant

Respondent

Anonymised Parties

A Worker

A Plant Hire company

Act

Dispute Reference No.

Date of Receipt

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

CA-00032636-001

02/12/2019

The complainant commenced work with the respondent on November 11th, 2018. It was terminated on October 16th, 2019. He brings this complaint under the Industrial Relations Act, 1969 as he does not have the necessary one year’s service to bring it within the jurisdiction of the Unfair Dismissals Act, 1977.

The complainant had a serious accident at work on September 25th, 2019 which he attributes to the negligence of the respondent.

He received a letter from the respondent on October 3rd which read as follows,

Dear [complainant]

As per the company’s disciplinary rules and procedures we retain the right to take into account your length of service with the company and to vary the procedures accordingly in respect of formal warnings up to and including termination.

As a consequence therefore, and taking into account your length of service I have decided that your employment should be terminated.

This will take effect immediately and you will be paid One week pay in lieu of notice [plus any annual leave to which you are entitled. Any monies due will be forwarded to you.

You have the right to appeal and should you do so you should write to [name] transport manager within 5 (five) working days giving the full reasons as to why you believe the action taken against you is too severe or inappropriate.

Yours Sincerely

[Director]

The complainant appealed on October 7th, citing his hard work with the company, punctuality and the failure of the respondent to give him any warnings.

The respondent replied on October 16th and stated that ‘having reviewed the situation, the company has decided to uphold the original decision and advising him that, as he had exhausted the appeal process, the decision was final.

The complainant was also told that the company was ‘downsizing’ and would be selling two trucks and therefore would have no work for him. However, these trucks were replaced with new trucks.

The respondent did not attend the hearing.

Correspondence was received from the respondent’s advisors on January 12th, 2020 stating that they would not be ‘engaging’ with the case.

As noted the respondent did not attend the hearing and communicated with the WRC through its advisors to say that it would not be attending.

This meant that there was no opportunity to have the respondent explain the meaning of the letter which is quoted above in the summary of the complainant’s submission.

It seems to state that under the company’s disciplinary rules and procedures it has the right to change or vary those rules and procedures if the length of service of the worker is taken into account.

Unfortunately, the rules and procedures which are alleged to provide this flexibility were not available at the hearing.

However, this is not the end of it; they go further. They appear to permit the respondent, having taken the complainant’s length of service into account to terminate it without further ado, and without warnings of any kind.

The author of the letter, a director of the company then invited the complainant to appeal to a named member of the management, other than himself. The complainant did so, but the appeal decision was signed by the same director and author of the first letter giving rise to a strong suspicion that the Director in question heard the appeal against his own decision.

Further, in referring to the complainant’s grounds of appeal it overlooked two of the grounds completely (his record of hard work and timekeeping) and gave no reasons for the conclusions in respect of his clean disciplinary record. It is entirely inadequate to simply say ‘having reviewed the situation’ when no evidence is provided of any review having taken place, or the factors which led such a review to a conclusion adverse to the appellant.

Perhaps this too, falls within the variations permitted in the respondent’s rules and procedures but it will come as a surprise to any person familiar with workplace disciplinary procedures or who has an elementary understanding of the requirements of fair procedure.

For the purposes of clarity, the basic rules of fair procedure do not significantly vary with an employee’s length of service as suggested by the respondent, nor may a person’s rights be arbitrarily varied at the whim of an employer.

Of course, a person on probation, for example will be subject to performance monitoring and this may affect their longer term employment, although there was no evidence that the complainant fell into that category.

Likewise, a worker with less than a year’s service will not (subject to important exceptions) have access to the jurisdiction of the Unfair Dismissals Act, but these are the main circumstances in which a person’s service may have a bearing on things.

There is no entitlement to engage in the sort of arbitrary and thoroughly unfair conduct demonstrated in this case in which the complainant was denied even elementary fairness.

According to the complainant the respondent has over thirty employees. He would be well advised to familiarise himself with what is actually required by the law in the management of discipline and termination processes and revise his procedures accordingly.

The dismissal was unfair and a very serious one, in which the complainant’s rights were completely ignored.

I uphold complaint CA-00032636-001 which is well founded and award the complainant €5,000.00. This is compensation for the breach of his rights and is not subject to statutory deductions.

I also recommend that the respondent familiarise himself with the requirements of Irish employment law in relation to the conduct of a fair disciplinary process, especially one which may lead to a termination of employment.

Unfair Dismissal