Complainant

Respondent

Anonymised Parties

A Worker

A Garage

Representatives

James Evans - Solicitor

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031571-001

15/10/2019

The Respondent has consented to an adjudication into this dispute under the Industrial Relations Acts.

The Complainant was employed in the role of “Apprentice Mechanic/Cleaner” commencing 17th June 2019. Following concerns with performance and absence, the Respondent dismissed the Complainant by letter dated 26th July 2019 without notice.

The Complainant was employed by the Respondent company in the role of Trainee Mechanic. The employment commenced on the 17th July 2019. The Complainant did not receive a contract of employment or any written terms and conditions upon or after commencement nor did he receive manual handling training or PPE/safety clothing. The Complainant requested a copy of his contract of employment on a number of occasions from his employer but at no time where they provided.

During an incident on the 11th June 2019, an interaction occurred between the Claimant and a colleague. The Claimant was taking notes for the colleague and asked him for the spelling on a particular word as he was dyslexic and needed assistance. He was verbally abused and called names due to his condition.

As a result of this interaction, the Complainant went on sick leave due to stress and upset. A doctor’s note was submitted to the Respondent. During the sick leave period, on the 26th July 2019, a letter was sent to the Complainant from the Managing Director stating, “we have no choice but to terminate your employment with immediate effect” [due to your absence and the inability to] “hold your job open indefinitely”. The termination applied with immediate effect.

The Respondent confirmed the Complainant was employed as a Trainee Mechanic. His duties included assisting the qualified mechanics with their duties, washing vehicles, sweeping the garage floor etc and other standard duties related to the role of a trainee mechanic.

After the third week of working, the Manager decided the Complainant was not working out in his role. It was felt he was a danger to himself and other staff members around machinery as he did not take instruction well and had to be constantly asked to discontinue with unauthorised actions. The Complainant received numerous verbal warnings during this time with the Company yet did not subsequently amend his behaviour. In addition, the Complainant was found asleep on the floor of the garage on one occasion and was also verbally abusive to colleagues.

On the 19th July 2019, the Managing Director was going on holiday and decided at that point to let the Complaint know it was not working out. However, the Complainant did not attend work that day and called in sick noting “food poisoning” as the reason for his absence. He did not inform anyone within the management team that he felt stressed or upset as set out in his complaint nor did he make them aware of issues regarding bullying or harassment at any time.

On the 25th July 2019 the Respondent received a letter from the Complainant’s mother with a sick certificate attached stating he was unable to attend work due to a “medical illness” and this was for an “indefinite” period commencing from 1st July 2019.

The Managing Director endeavoured to contact the Complainant without success, so a letter of termination of contract was sent (dated 26th July 2019) to the Complainant without any further contact.

Having carefully considered the position of both parties and based on the matters outlined and detailed above, I find there was a complete lack of any due process by the Respondent leading to the immediate dismissal of the Complainant due to his absence and noted performance issues.

The manner of this dismissal clearly lacks even a base standard of fairness or due process required of an employer to manage, address and deal with concerns regarding performance in a reasonable and just manner, even during a notional probationary period. This matter was particularly compounded by the fact the Respondent did not provide a contract of employment to the Complainant upon or after commencement and therefore any reference to probationary conditions as a defence for dismissal during this time were not clearly set out in writing for the Complainant to accept and understand.

A probationary period is a key part of an initial contractual relationship between and employee and their employer to ensure both parties are satisfied as to “fit” of an individual into a defined role over a specified period of time. However, in this case, the Complainant did not receive a written copy of his contractual terms in writing as required under Terms of Employment (Information) Act, 1994 so was not clear as to the terms pertaining to his probationary period nor did he receive fair indication as to the consequences of not performing to expectation, even via an abridged process due to the short length of service. His service was simply terminated without notice via letter during a period of sick leave.

Consequently, I find the manner of the dismissal in this case was patiently unreasonable and unfair.

I recommend the Complainant is paid the amount of €1,200.00 as appropriate compensation in the specific circumstances of this case. This sum does not represent any wages or salary.

Probation – Immediate Termination – Contract of Employment