Complainant

Respondent

Anonymised Parties

General Operative

Waste Management

Representatives

none 

 Office Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00033684-001

09/01/2020

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

CA-00033684-002

09/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033684-003

09/01/2020

There are three claims relevant to this case.

CA-00033684-001:           Complaint seeking adjudication pursuant to Section 39 of the Redundancy Payment Acts 1967 – 2014

The Complainant stated he did not receive any redundancy payment.

CA-00033684-002:            Complaintfor adjudication pursuant Section 8 of the Unfair Dismissals Act, 1977 - 2015

The Complainant stated he was unfairly dismissed.

CA-00033684-003:            Complaintfor adjudication pursuant Section 6 of the Payment of Wages Act, 1991

The Complainant stated he did not receive the appropriate payment in lieu of notice of termination of his employment. 

The Respondent say no dismissal or redundancy occurred; he left his employment and no notice is due.

The Complainant stated he was going to play darts on the evening of 18 October 2019 which had been authorised when a callout came in to the office and he told his colleague he couldn’t do the job. The Complainant’s boss the Owner told him to give back his keys to the van and stay at home on Monday.  This occurred on Friday 18 October 2019 and he understood he was dismissed then.  The Office Manager took the Complainant’s company phone on 18 October. The Manager called the Complainant on Monday 21 October but he missed his call.  The Complainant collected his personal items a week later and did not hear from the company again.  

The Complainant stated he did not receive any redundancy payment but understood he was let go from his so job so he was redundant or he was unfairly dismissed.

The Complainant stated he did not receive the appropriate payment in lieu of notice of termination of his employment either.

The Respondent stated the Complainant started employment as a General Operative on 20 March 2017 before progressing to another role a few months later. In March 2019 the Complainant was given the opportunity to advance to another position but after a month training, he felt he was not suited to the work as it was more pressurised and was told he could return to his previous position.

The Respondent stated that a few months prior to the Complainant leaving their employment he seemed to have lost interest in the job, he was late regularly which seemed to be getting worse and resulted in the Complainant being issued with a verbal warning on 7 October 2019.

The Respondent stated that the Complainant was due to work at 8am for a scheduled job but he failed to show up. As he had been late on numerous days especially Mondays and the Respondent had spoken to him the previous Friday and said it was very important that he be in on time and that he was getting very frustrated with his unreliability as the Complainant was allowed the use of the company vehicle at weekends and evenings and if he was late this would cause logistical problems.  Numerous calls were made to the Complainant’s mobile and each time he responded he was on his way. The customer was calling very annoyed that a job was being help up. The Respondent had no choice but to drive to the Complainant’s house to collect the van and equipment.  By this stage it was 10am.

The Respondent stated that the Complainant started his van at 10.08am and left his house. As the Respondent left the yard to collect the van at the same time, they both passed each other on the road.  The Respondent stated this showed a total lack of respect for his job and his employer.

The Respondent stated that they made it clear to the Complainant that the nature of the business was such that it was important not to let customers down especially as unreliability could lose the Company tenders.

The Respondent told the Complainant in no uncertain terms that this could not continue and he would have no choice but to take him off his current role and put him back as a helper if there was no improvement.

The Respondent stated that on the day in question another employee spoke to him earlier in the day and informed him he had to pick up his car that evening and would need to leave work early as he was working the weekend.

The Respondent stated that the Complainant was an hour late starting work that morning and he returned to the yard at 10.49am.

The Respondent stated that at 4.30pm an emergency call came in and that the job would probably have taken an hour.  An employee took the call and the Complainant who had been sitting in the office when the call came in immediately refused to do the job as he said he was playing darts at 9 o’clock.

The Respondent stated that the employee who took the call was aware that another colleague was unable to do the job but said she would try and ask another colleague if it was possible for him to it, although the vehicle was a lot larger than they would use for this job and would not be cost effective but asked anyway as they felt under pressure as the Complainant was adamant, he would not do the job. This colleague who she asked was unable to do the job as he had prior commitments. The employee then had to call the Respondent and say she had no one to the job.

The Respondent came to the office at 5.30 pm and the Complainant was still sitting there and he asked him do the job as it was a very important as it was a Council job but he refused point blank without any explanation. The Respondent stated the nonchalant manner in which the Complainant spoke to him felt to him very disrespectful and he also felt that the Complainant was being very unreasonable and it seemed to him that the Complainant had lost interest in the job. The Respondent stated he felt let down by the Complainant as he felt he had been very reasonable with him over the previous months.  The Respondent stated that when it became clear that the Complainant was not under any circumstances going to do the job, he told him he was to leave the office and not to take the van or work phone with him and not to come in on Monday.

The Respondent stated that to him it felt that the Complainant had let the Company down and that he was not interested in improving his reliability as they had discussed previously. He stated it was out of sheer frustration and the need to get the job done that the Respondent told the Complainant to leave the office and not to take the van or the work phone with him not to come in on Monday as he had no confidence in him as a jetter driver and that he would be on time for work on Monday as the Respondent needed both van and equipment and the work phone at his disposal.

The Respondent stated that having thought about it over the weekend he had decided that before making the final decision for the Complainant to demote him as a helper that he would ask him to call to the yard that day so they could discuss what happened on Friday and see if there was an underlying issue for the change in the Complainants attitude to the job.

The Respondent stated that unfortunately the Complainant did not answer the phone call nor did he return the call to the Respondent at any point.

The Respondent stated that he did not sack the Complainant on that Friday and had no intention of sacking him, and that he had a responsibility of 25 staff and a business to run and would not terminate a person’s employment without exhausting alternatives.

The Respondent stated that he had asked a member of the office staff to hold off on issuing any grievance procedures as he had hoped not to escalate things further and hoped that things would be resolved informally with the Complainant without having warning letters on his file.

The Respondent stated that by the end of the week the Complainant had still not returned to work or returned the phone call and he had told a work colleagues that he had secured a new job and was not returning.

The Respondent stated he was disappointed that the Complainant had not contacted him directly to say that he was not coming back and when the Complainant asked a staff member to pay him whatever he was owed then he thought it was best to let the Complainant’s decision stand.

The Respondent stated that any monies owed to the Complainant were paid and he was asked on numerous occasions to forward the PIN for the work phone he was issued with as customers contact that particular phone by calls and text but he failed to do so.

The Respondent stated that on 25 November 2019 a registered lettered was received to the office from the Complainant demanding payment of €4,896 to be paid by the 20 December 2019.

The Respondent stated that despite the fact that the Complainant was not made redundant and was not sacked the letter stated that he was advised by the WRC that was what he was entitled to without any defence from the Company and hearing of the Company’s side.

The Respondent stated that the letter was to point a coercive in its demands for payment and the Company was not going to concede to the Complainants unfair demands.

The Respondent stated that a further letter was received on 12 December 2019.

The Respondent stated that the Complainant was not made redundant and also the Company would contest claiming for both Redundancy and Unfair Dismissal and contended that the Complainant left his employment.  The Respondent stated therefore there is no entitlements to payment in lieu of notice as the Complainant left without giving notice.

CA-00033684-001

The Complainant stated he was going to play darts on the evening of 18 October 2019 which had been authorised when a callout came in to the office and he told his colleague he couldn’t do the job. The Complainant’s boss the Owner told him to give back his keys to the van and stay at home on Monday.  This occurred on Friday 18 October 2019 and was told he was dismissed then. He alleged as a result the Office Manager took the Complainant’s company phone on 18 October also the Manager called the Complainant on Monday 21 October but he missed his call.  The Complainant collected his personal items a week later and did not hear from the company again.  

The Respondent stated they agreed with the Complainant’s account of events on the 18 October. However, the Respondent stated that the witness (the office manager) said the Owner called the Complainant to see if was coming back but he didn’t take his call.  The Respondent did not contact him further.  The Respondent stated that it was just a heated exchange on the 18 October 2019 and the Owner called him to come back but the Complainant did not answer his call.

The Respondent understood the Complainant had another job.  The Respondent did not contact the Complainant again.

The role the employee did still remains in the company as a role.

In relation to a redundancy dismissal section 7(2) of the Act states:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.

In the circumstances of this case and based on the evidence before me it is clear no redundancy occurred as the role and position the Complainant held remained in the organisation.

CA-00033684-002

In relation to the unfair dismissal legislation; Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(a) of the 1977 Act provides that;

“…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 …the capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by me in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as follows:

“Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also.

In this case I find that the Complainant confirmed he secured a new job 1 ½ weeks after his dismissal as he had not heard from the Respondent. The Complainant was paid €550 in his new role versus €819 gross in his previous role and has an ongoing loss as a result of same.

CA-00033684-003

The employee received no notice as the employer stated they did not see that a dismissal occurred. Statutory notice entitlements are based on service and accordingly his notice of termination would be 2 weeks’ notice.

CA-00033684-001

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The claim was not well founded based on the evidence provided as this role was not made redundant and continued to exist in the company, therefore this claim fails.

CA-00033684-002

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.

The claim is well founded based on the evidence provided.

The Complainant was summarily dismissed after his employment with no regard to the rules of natural justice, the statutory instrument SI146; no process in relation to an investigation, an outcome or an appeal occurred therefore I find this dismissal to be unfair both procedurally and substantively.

In considering the award I note that the Complainant secured employment shortly after his dismissal, however he was paid €550 in his new job versus €850 in his job that he was dismissed from.

Based on the failings in the Respondent’s process, and the Complainants loss I award the Respondent compensation of 12 month’s pay based on the €300 per week difference of his loss for his unfair dismissal which is equivalent to €300 per week x 12 months totalling €14,400.

CA-00033684-003

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.  I find based on the fact this was a dismissal the Complainant should have received notice of 2 weeks’ pay and award same, accordingly totalling €850 x 2 = €1,600 subject to any relevant deductions.