Complainant

Respondent

Anonymised Parties

A credit controller

A publishing company

Representatives

None 

None

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030431-001

22/08/2019

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

CA-00030431-002

22/08/2019

The complainant’s employment started in May 2019 and was terminated on the 21st August 2019. He was paid €25,500 per annum in a credit control function, working in French. The complainant asserts that there were contraventions of the Unfair Dismissals Act and the Terms of Employment (Information) Act. The respondent denies the claims.

The complainant outlined that he started employment with the respondent on the 6th May 2019 and was dismissed on the 21st August 2019. He said that he had started well in the role, but as it was new, he may have had to ask things. He had one conversation with the colleague (present at the hearing) regarding his grammar in an email, but he was not issued with a warning.

The complainant outlined that he was called to a meeting on the 21st August 2019 where his parking in the CEO’s space was brought up with him. He said that while he had left his dogs in his car, there was no conflict between him and security. The complainant said that a verbal warning would have been sufficient for this.

The complainant outlined that he was unfairly dismissed, and this was only on the parking grounds. He said that he only received an administration card with contact details and was not given a statement of term and conditions. He did not sign a contract. He provided the respondent with his name and PPSN.

The complainant outlined that he did not make a disclosure. He had passed his probation and should not have been dismissed in this way. He said that he had been hired for six months.

The complainant outlined that after the dismissal, he was depressed and was homeless as he could not pay rent. He started a gardening course in 2020.

In reply to the respondent, the complainant outlined that a manager raised the dog issue with him at a meeting and the complainant apologised. The complainant outlined that the respondent did not tell him that he was doing a bad job. He had hoped to build relationships and it was a challenging role. The complainant said that he was only informed of the car park incident and the performance issues should have been raised with him.

The complainant outlined that he never received a statement of terms or a contract in respect of this employment. On the 22nd August, he had emailed a named staff member and a manager regarding his contract, but never received a reply. He had provided the respondent initially with his then residential address, but later an office address as he had become homeless. He confirmed that he was paid one week of notice pay.

The respondent outlined that the complainant was a decent person but had not given details of any term that changed. The respondent outlined that the Terms of Employment claim may relate to the ending of the employment being a ‘change’ in the termination date. Section 5 of the Terms of Employment (Information) Act requires the employer to notify an employee of the change and the ending of a contract is not such a change as the employment no longer exists.

The complainant was provided with a contract on the 7th May 2019 and it was sent to the postal address provided by the complainant. There was no claim for a breach of section 3 and the respondent complied with the Act. The Act does not require that the employee sign the statement. The contract would have been posted to him.

The respondent submitted that the Unfair Dismissals Act did not apply as the complainant did not have the required period of service. There was no protected disclosure so the complainant could not rely on this provision. The complainant was dismissed during his probation and the respondent relied on section 3 of the Unfair Dismissals Act (dismissal during probation).

The colleague outlined that she drew up the contract and it was for the line manager to provide it to the employee. It said that it was fixed term and there was probation for the entire time.

The respondent outlined that the reason for the dismissal was not what had occurred with the dog. The respondent outlined that there had been issues with the grammar used in emails and colleagues had to hold the complainant’s hand. It outlined that it tried to bring the complainant up to speed and acknowledged that it was a new role for him. The respondent outlined that it dismissed the complainant because of performance issues.

In respect of the 22nd August, the respondent said that the complainant had emailed the manager in respect of this complaint to the WRC. There was no email looking for a statement. The named colleague outlined that she had not received an email from the complainant.

CA-00030341-001

This is a complaint pursuant to the Terms of Employment (Information) Act. As set out in the complaint form, the complainant outlined that the duration of his employment was altered without him being notified of this change in writing (as required by section 5). During the hearing, as part of my duty to inquire into the complaint, I inquired whether the respondent had provided the complainant with a statement of the terms of his employment (as required by section 3). The complainant asserted that he was not provided with a statement of terms, while the respondent asserted that one had been posted to him. The parties submitted a significant amount of documentation after the hearing, although I did not receive a copy of the statement of terms or any correspondence related to it being sent, for example a cover letter.

I agree with the respondent submission that a dismissal is not a change in an employee’s terms of employment, even where there is a fixed end date to that employment. Whether or not the dismissal is lawful or justified is a matter for an Unfair Dismissals complaint. Dismissal is not a ‘change’ to someone’s employment within the ambit of section 5, but the ending of that employment.

It is appropriate for this adjudication to inquire into whether section 3 was complied with. First, because there was a Terms of Employment (Information) claim before it, albeit in respect of section 5. Second, section 3 relates to a core component of employment law and is a Directive right. Employees must be provided with written information about their employment. Third, the parties were able to submit documentation after the hearing in respect of this issue and both parties availed of this. As noted above, I was not provided with the statement issued to the complainant, nor any cover letter etc that one would expect to see. From this, I infer that the statement of terms was not provided to the complainant.

I find that the complaint pursuant to the Terms of Employment (Information) Act is, therefore, well-founded in respect of section 3. Taking account of the circumstances, including that the employment lasted some three months, I award compensation of €800.

CA-00030341-002

This is a complaint pursuant to the Unfair Dismissals Act, whereby the complainant has less than 12 months of service and indicated in the complaint form that he had been exercising a right under the Protected Disclosure Act.

The respondent outlined that it dismissed the complainant on performance grounds, and submitted documentation supporting this. They were internal emails and credit control reports. I find that this was the reason for the dismissal. Further, I find that there was no protected disclosure within the ambit of section 5 of the Protected Disclosures Act. The complainant suggested that the reason for the dismissal was the dog issue, i.e. keeping a dog in his car parked at work. Even if this was the reason, it is not a protected disclosure as it does not disclose any alleged wrongdoing by the employer.

As I have found that there was no protected disclosure, the complainant requires 12 months’ service in order to advance a claim of unfair dismissal. The complainant did not have the required service. I am further satisfied that the dismissal was on the performance issues identified in probation, per the emails and credit control reports. I, therefore, dismiss the complaint in accordance with section 8(1)(c)(iii).

CA-00030431-001

I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant compensation of €800.

CA-00030431-002

For the reasons set out above, I dismiss the complaint pursuant to the Unfair Dismissals Act in accordance with section 8(1)(c)(iii).

Dismissal / Terms of Employment (Information) Act / Unfair Dismissals Act