Complainant

Respondent

Parties

Andrejs  Zaharevics

First Direct Logistics Limited

Complainant

Respondent

Anonymised Parties

Representatives

Elizaveta Donnery, Donnery & Co solicitors

 Management

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-00039854-001

16/09/2020

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

CA-00039854-002

16/09/2020

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

CA-00039855-001

16/09/2020

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

CA-00039855-002

16/09/2020

The Complainant was employed by the Respondent as a multi – drop driver.

Employment commenced on 11th March 2019 and ended on 10th April 2020.

The Complainant worked 50 hours per week for which he received a weekly gross wage of €600.

This complaint was received by the Workplace Relations Commission on 16th September 2020.

The Complainant became ill and obtained medical certification from doctors in Ireland and provided same to the employer.

The Complainant had annual leave due and from 16/03/2020 to 27/03/2020, this had been authorised well in advance.  During this period the Complainant was not fit for work and informed the Respondent that he would go ahead with the annual leave and travel back home to Latvia, his home country. He felt that the medical care available in Latvia would be quicker than what was available in Ireland.

The Complainant was due back to work on 30/03/2020 however his health was poorly, he was unfit for work and he was unable to contact his employer until 10th April when he stated to his employer that he was still in Latvia and had all medical documents for the employer

The Complainant received an email later that day (10th April 2020) informing him that he was dismissed from employment.

The Complainant contends that he was never offered the opportunity to state his case and given no opportunity to appeal the decision to dismiss him.

The Complainant states that he has sustained a level of stress and substantial loss due to dismissal which he believes to be unfair.

On 02/03/2020 the Complainant presented the company with Medical Certificate, stating that he was fit for work but would like to do light duties for 2 weeks.

The Complainant was employed as multidrop delivery driver and the company have only very selected work for his position, but even taking this, the Complainant was offered to do shorter days to help meet his request, the Complainant turned the company’s offer down and decided to take time off and go straight on holidays and return on 30/03/2020, as planned and authorized.

The Respondent’s Team leader was trying to get in touch with him on Friday 27th March 2020 and again on 30th March 2020 and several times that week.

No contact was returned, or no contact was made from the Complainant to inform the company of any absence. It was not until 10th April 2020 that the Complainant contacted his employer.

Even on 10th April 2020 when the Complainant did contact the company, he emailed to the accounts department, which makes very little logic.  He has operations teams and superiors' managers contact details. He didn't provide any medical documentation to support his absence.

Basedon the Complainant’s no showand no contact, the Respondent made decisiontocease the Complainant’s employment. The Respondent informed the Complainant by email on 10th April 2020 that his employment was being terminated. The Respondent can produce all documentation and emails received and sent.

CA – 00039854 – 001.

S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

General.

1. This Code of Practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures. While the code outlines the principles of fair procedures for employers and employees generally, it is of particular relevance to situations on individual representation.

2. While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

General Principles.

1. The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

2. Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises / organisations, must comply with the general principles of natural justice and fair procedures which include the following:

·       That employee grievances are fairly examined and processed;

·       That details of any allegation or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

In the instant case the employee was not given the opportunity of any process and not given the right to appeal the decision to dismiss him from employment.

In the case of Gearon v Dunnes Stores Limited UD367 / 1988 the EAT held:

‘The right to defend herself and have her arguments and submission listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or the Tribunal……. As this right is a fundamental one under natural and constitutional justice; it is not open to the Tribunal to forgive its breach’.

In relation to the Complainant he was wrong not to contact his employer for a period of 10 days. In failing to contact his employer he has significantly contributed to his own dismissal.

In reaching a conclusion in this complaint I find that the complaint is well founded however the Complainant has contributed 50% to his own dismissal.

The Complainant commenced new employment on 22nd July 2020, he was therefore unemployed for 101 days (14.428 weeks). At the time of his dismissal he was earning €600 per week. The total loss is €8,657.14 less the 50% contributed by the Complainant equals €4,328.57. I now order the Respondent to pay the complainant a gross amount of €4,328.57 for his unfair dismissal.

CA – 00039854 – 002.

Under the Minimum Notice and Terms of Employment Act, 1973 the Complainant is entitled to one weeks’ notice.

I now order the Respondent to pay the Complainant one weeks pay (€600) in lieu of this notice.

Complaints CA – 00039855 – 001 and CA – 00039855 – 002 are duplicates of the complaints listed above.

Monies payable to the Complainant should be made within 42 days from the date of this decision.

As outlined above.

Unfair Dismissal; Minimum Notice.