Complainant

Respondent

Anonymised Parties

An Electrician

A Construction Company

Representatives

The Worker attended the hearing in person and was not represented 

Ms. Lorraine Smyth, Solicitor from Byrne Wallace LLP

Act

Dispute Reference No.

Date of Receipt

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

CA-00039111-001

10/08/2020

The Worker was employed by the Employer as an Electrician from 2 March 2020 until 17 July 2020 when his employment was terminated. The Worker claims that he was wrongfully dismissed from his employment and that the manner in which the dismissal was affected was totally lacking in fair procedures. The Worker has sought to have these matters investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Employer disputes the claim of wrongful dismissal and contends that the Worker was dismissed from his employment because his level of performance did not reach the required standards during his period of employment.

The Worker submits that he has over 20 years’ experience in the construction industry. He commenced working for the Employer on 2 March 2020 and built up a good rapport with the Construction Manager (Mr. A) during the initial stages of his employment. The Worker submits that the site where he was located was temporarily closed on 17 March 2020 due to the Covid -19 restrictions and did not re-open again until 11 May 2020. The Worker was unable to resume work on this date due to a back injury which was a medically certified absence and he reported back for work on 18 May 2020. The Worker submits that he received positive feedback in relation to his performance from the Site Supervisor (Mr. B) during the period thereafter and was not made aware of any deficiencies in relation to the standard or quality of his work.

The Worker submits that he was informed by the Site Supervisor (Mr. B) towards the end of his shift on 13 July 2020 that he was finished working on that site and that he should contact the Labour Coordinator (Mr. C) about work on a different project. The Worker was told by Mr. B to leave the site and to take his tools home with him. The Worker submits that he made contact with Mr. C on 14 July 2020 to try and establish the situation in relation to his employment and was informed by Mr. C that he would make enquiries on his behalf in relation to the matter. The Worker submits that Mr. C subsequently contacted him on 16 July 2020 and indicated that he had been informed by Mr. A (Construction Manager) that his employment was being terminated because he was “unable to perform basic electrical works”.

The Worker submits that he was totally shocked by the manner in which he was dismissed. The Worker contends that the only reason that he can attribute for his dismissal relates to the fact that he had confronted the Site Supervisor (Mr. B) on a previous occasion in relation to an incident where he had been bullying a colleague in the workplace. The Worker submits that his relationship with Mr. B deteriorated after this incident and that he was assigned to the more difficult tasks in the aftermath.

The Worker submits that he attempted to obtain a meeting with management to try and discuss his dismissal but was denied this opportunity by the Employer. The Worker contends that he did not have access to any member of management in relation to this matter and all contact with the Employer was through the Labour Coordinator (Mr. C.). The Worker denies that the Employer had raised any concerns in relation to the level of his performance prior to his dismissal. The Worker submits that the Employer failed to invoke the internal disciplinary procedures in relation to his dismissal and that he was not afforded any prior warning (either verbally or in writing) that his position was in jeopardy. The Worker submits that he was summarily dismissed from his employment on 13 July 2020 and was not afforded any opportunity to invoke the internal grievance procedures in relation to his dismissal.

The Worker submits that his dismissal was totally lacking in fair procedures and that the Employer failed to adhere to its own internal grievance and disciplinary procedures in relation to this matter.

The Employer submits that the Worker was employed as an Electrician on 2 March 2020 and that his main duties involved electrical containment. The Worker was placed on temporary lay-off on 17 March 2020 when the site where he was working was forced to close due to Covid-19 restrictions and he returned to work on 18 May 2020 when the site reopened. The Employer submits that the Worker reported directly to the Site Supervisor (Mr. B) who in turn reported to the Construction Manager (Mr. A).

The Employer submits that on 13 July 2020, the Labour Coordinator (Mr. C) received a call from Mr. A raising concern about the Worker’s productivity and quality on the project site and that he had not been performing to an acceptable level. The Worker was released from the site on this date by Mr. and was informed to contact the Labour Coordinator (Mr. C) the following day. The Employer submits that Mr. C spoke to the Worker on 14 July 2020 and informed him that he had received negative feedback from Mr. A concerning the standard of his work and productivity on site. The Employer submits that the Worker made it clear during this call that he disagreed with this feedback so Mr. C indicated that he would make further enquiries in relation to the matter. The Worker remained on full pay during the period Mr. C was making these enquiries.

The Employer submits that Mr. C spoke to the Construction Manager (Mr. A) to convey the Worker’s response to the feedback, however, Mr. C maintained his position that the Worker’s performance was not satisfactory. The Employer submits that Mr. C spoke to the Worker on 16 July 2020 to confirm that Mr. C stood over the assessment made in relation to his performance and as a result his employment was terminated.

The Employer disputes the Worker’s contention that he had not been informed about his failings in relation to the performance of his duties. The Employer submits that the Worker was informed by the Site Supervisor (Mr. B) on a number of occasions during his employment that his performance was not satisfactory or to the required standard. The Employer submits that the Worker was provided with a full explanation in relation to the reasons for his dismissal and that further feedback was provided after he had questioned the reasons for his dismissal.

The Employer submits that the Worker’s dismissal was both substantively and procedurally fair and that it was not feasible to continue with his employment in circumstances where his performance was not satisfactory or meeting the required standard. The Employer disputes the Worker’s contention that the dismissal was procedurally unfair and contends that the formal internal disciplinary procedure is generally not applied where the worker has less than twelve month’s service.

In summary, the Employer submits that the dismissal of the Worker was fair in the circumstances.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 and concerns a claim by the Worker that he was wrongfully dismissed from his employment by the Employer and that the manner in which the dismissal was affected was totally lacking in fair procedures. The Worker was employed by the Employer as an Electrician from 2 March 2020 until 17 July 2020 when his employment was terminated.

The Employer disputes the claim of wrongful dismissal and contends that the Worker’s employment was terminated because his level of performance did not reach the required standards during his period of employment. The Employer contends that the Worker was informed about the deficiencies in his performance on a number of occasions prior to his dismissal and having regard to the fact that he was not working to the required standard so early in his employment the decision was taken to dismiss him.

The fact of dismissal was not in dispute between the parties in this case. However, there was a clear dispute between the parties relating to the issue of whether the Employer had raised any concerns with the Worker in relation to the level of his performance prior to the date of his dismissal.

In considering this matter, I note that the Worker’s contract of employment provided that the first month of his employment would be a probationary period. It was not in dispute that the Worker’s probationary period was interrupted by a period of lay-off due to the closure of the site during the Covid-19 restrictions in March 2020. However, notwithstanding this period of lay-off, it was common case that the Worker successfully completed his probationary period upon the resumption of employment on 18 May 2020 with the result that his employment status became that of a permanent employee. It is clear that the Employer did not raise any concerns at that juncture in relation to the level or manner of the Worker’s performance which would have merited the extension or his probationary period or the termination of his employment in accordance with his contract of employment.

I note that the Employer’s internal disciplinary procedures provide for a graduated response which includes a verbal and written warning in circumstances where an employee’s performance falls short of the required standards. It is clear from these procedures that the Employer is obliged to implement these graduated steps in response to allegations of poor performance before applying the ultimate sanction of dismissal. The Employer accepts that the internal disciplinary procedures were not applied in the circumstances of the within case in relation to the management of the Worker’s alleged under performance. The Employer contends that the formal disciplinary procedures are not generally applied in cases where the employee has less than one year’s service.

Having carefully considered the submissions of both parties, I find that the manner in which the Worker was dismissed from his employment fell far short of the standard of fairness that could be expected from a reasonable employer. I find that the Worker was not provided with any fair or reasonable opportunity to address the alleged concerns which the Employer had in relation to his performance. In particular, I am satisfied that the Respondent failed to advise the Complainant that his employment was in jeopardy prior to a decision being taken to dismiss him.

In the circumstances, I find that there was a manifest failure by the Employer to adhere to the basic requirements of procedural fairness in reaching the decision to terminate the Worker’s employment. I find that the Worker’s employment was terminated in a manner which was procedurally flawed and in breach of the Code of Practice on Grievance and Disciplinary Procedures (SI. No. 146 of 2000). This Code of Practice is promulgated pursuant to Section 42 of the Industrial Relations Act 1990 and an Adjudication Officer is obliged to have regard in deciding on any case to which it relates.

Having regard to the foregoing, I find that the Worker was wrongfully dismissed from his employment in a manner which was totally lacking in fair procedures. In the circumstances, I find that the Complainant is entitled to compensation in relation to the dismissal and I recommend that he be paid the sum of €4,500.

I find that the Worker was wrongfully dismissed from his employment in a manner which was totally lacking in fair procedures. I recommend that the Employer should pay the Worker the sum of €4,500 (being four thousand five hundred euro) in compensation for the wrongful dismissal.

Industrial Relations Act 1969 – Section 13 - Wrongful Dismissal – Dismissal Procedurally Unfair – Compensation Awarded