ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: ADJ-00035628
Parties:
| Complainant | Respondent |
Anonymised Parties | Digger Operator | Construction Company |
Complaint:
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Date of Hearing: 27/09/2021
Location of Hearing: Remote Hearing
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The Complainant commenced working very the Respondent on the 7 September 2020. His employment ceased on 20 November 2020. He worked as a digger operator for the Respondent. |
Summary of Employee’s Case:
The employee's case was that on 20 November 2020 he received a phone call from his manager to state that there was no further work for him. He explained that he had helped the Employer to hire a further digger driver only the previous week before. He thought it was very unfair to receive termination of employment just before Christmas. He did not receive any notice or payment in lieu of notice. He was most surprised with the sudden ending of his employment as he had only spoken to a foreman on site the previous week and had been told there was a lot of work and there would be work in a new site after Christmas. The Complainant felt he was very unfairly treated, he disputed that there was shortage of work. |
Summary of Employer’s Case:
The Employer's case was that from when the Employee started working, he was always looking for extra pay. The Employee had given notice that he was going to finish employment at the start of November but ended up staying on. Unfortunately, the work that the Employer had for the Employee finished up. The witness confirmed that the Complainant did good work for the Employer, but he had no work for him. The work was very weather dependent. He explained that the employee that was hired after the Complainant worked in a supervisory role in a different section of the building site. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. Section 2(1)(a) of the Unfair Dismissals Act states the Act shall not apply to: “an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him …………………………..” Notwithstanding that the employment relationship has been terminated, there are numerous examples of both the WRC and Labour Court seeing fit to recommend awards of compensation in respect of unfair dismissals with less than twelve months’ service where there has been a breach of fair procedures by an employer. In this case, the procedure followed by the Employer in arriving at its decision to dismiss the Employee was devoid of any fair procedure or natural justice. The Employee had no part to play in the decision-making process. There was no opportunity to appeal the decision. The Employer took no account of alternatives to termination. While the Employee may have been unhappy with the rate of pay he was in receipt of, it was acknowledged by the Employer’s own witness that the Employee did good work for the Employer. When the Employee was considering ending the employment relationship, he gave notice to the Employer, this unfortunately was not reciprocated by the Employer to the Employee. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
In all the circumstances, I find in favour of the Employee and that the decision to dismiss him was unfair. I recommend that the Employer compensate the Employee by payment of €5,200.00 (four weeks renumeration) in full and final settlement of this claim.
Dated: 09-11-21
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Unfair dismissal. Less than 12 months notice. |