Complainant

Respondent

Anonymised Parties

A Complainant

A respondent

Representatives

Robert Coonan, Robert Coonan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00031497-001

10/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031497-002

10/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031497-003

10/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031497-004

10/10/2019

The respondent is a small enterprise in the automotive industry. The complainant was employed by the respondent from October 2016 until he ceased employment on 16 August 2019. At the hearing, the respondent conceded that it did not pay the complainant the appropriate notice in that it paid him one weeks’ notice when he was entitled to two weeks’ notice.   A witness attended to give evidence regarding the specifics of the incidents outlined.

The complainant submitted that he was let go with no notice and without any good reason being given. He submitted that the respondent did not want to provide him with flexibility surrounding his domestic circumstances. He also submitted in response to concerns on the part of the respondent about the health and safety, that it there were no health and safety statements in the workplace.

The respondent submitted that there were three occasions where the complainant had badly replaced a wheel and that each of these gave rise to a substantial risk to life or limb and that they had caused a risk to the public and had reflected badly on the reputation of the business. The three incidents outlined occurred in May 2017, June 2018, and August 2019.

The respondent submitted that he had given the complainant a first and final written warning and that he reflected on the final incident for a number of days before terminating the complainant’s employment.

CA-00031497-001

No evidence was presented by the complainant in pursuit of a complaint regarding public holiday entitlements, while the respondent indicated that it had paid the complainant his holiday entitlement. I conclude that no further action is necessary in this regard.

CA-00031497-002

The complainant submitted that he was unfairly dismissed, the respondent refuted this saying that the mistakes made by the complainant simply could not be tolerated as they constituted a risk to life and limb. For the purposes of this element of the complaint, Section 6 of the Unfair Dismissals Act, 1977 is pertinent.   Section 6(1) and (4) state that:

(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The respondent outlined how following all three incidents he had spoken with his staff to outline how serious an error this amounted to. The respondent submitted that he had spoken to the complainant following the first incident and outlined the seriousness of the incident. The complainant, in turn, stated that he could not recall anything related to that incident. I found the complainants demeanour to be somewhat evasive in relation to his evidence of this incident and on balance prefer the respondents account of this incident. In relation to the second incident, the respondent stated that he outlined the seriousness of the incident to the complainant and gave him a first and final written warning following this incident. The complainant acknowledged this incident took place but denied that he had been given a written warning. When asked about the manner of the written warning (which was unsigned by the complainant and had an illegible date on it), the respondent did not give consistent answers as to how he came to give the complainant the warning. On balance, I prefer the complainants account of this incident and consider that he was not given a written warning at that time. In relation to the third incident, I found the complainant to be somewhat evasive in giving his evidence on the subject. The respondent on the other had was quite clear as to the circumstances of this event and his version of events was supported by the witness present.

Having considered the evidence to hand and the seriousness of the incident, I am satisfied that Section 6(4)(a) is pertinent here in that the final incident called into question the capability and competence of the complainant to perform the kind of work he was employed to do. Accordingly, I find that there were substantial grounds justifying the dismissal and I find that no unfair dismissal occurred.

CA-00031497-003

The respondent conceded that it did not pay the complainant the appropriate amount of notice.   I find that the complainant succeeds in relation to this aspect of his complaint.

CA-00031497-004

The complainant has indicated that he wishes to take a complaint under Section 6 of the Minimum Notice & Terms off Employment Act, 1973. Section 6 states is worded as follows:

An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

As this provision relates to an employer’s right to notice, I find that this element of the complaint by the complainant as an employee is misconceived.

CA-00031497-001

My recommendation is that no further action needs to be taken regarding the issue of Holiday pay.

CA-00031497-002

My decision is that no unfair dismissal occurred, and this element of the complaint fails.

CA-00031497-003

Arising from my findings and conclusions, my decision is that the complainant is entitled to compensation amounting to one weeks’ pay, i.e. €196 for this breach of the Act

CA-00031497-004

Arising from my findings and conclusions, my decision is that this element of the complaint fails as the complainant as an employee has no right to make a complaint in relation to an employer’s entitlement.

Unfair dismissal, defence, misconceived, minimum notice.