ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00032906

Parties:

Dispute:

Date of Adjudication Hearing:  22/07/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 16th April 2021.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a remote hearing on 22nd July 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, which designates the WRC as a body empowered to hold remote hearings.  There was no objection to an investigation of this dispute by an Adjudication Officer of the WRC within the requisite time-limit under Section 36(1) of the Industrial Relations Act 1990.  The Worker attended the hearing whilst the Employer was not in attendance.  I was satisfied that the Employer had been properly notified of the hearing details and accordingly, proceeded to hear the Worker’s evidence.  All evidence, submissions and documentation received have been taken into consideration. 

Background:

The Worker was employed by a Drinks Company as a Business Development Manager on 1st January 2021.  He earned €3000 gross per month.  He contends that he was dismissed with a month’s notice on 18th February 2021, and not having the requisite one year’s continuous service for a complaint under the Unfair Dismissals Act 1977, seeks alternative recourse under Section 13 of the Industrial Relations Act 1969. 

Summary of Worker’s Case:

The Worker outlined an extensive background in business development and prior to commencing employment with the Drinks Company and Employer subject to this dispute, he had already been undertaking the role of Business Development Manager for the Employer on a contract basis via an Agency.  Upon being invited to work directly with the Employer, he entered into an employment contract on 1st January 2021.  He received a written contract which stipulated that he was subject to a six month probation clause extendable up to nine months.  The contract referred to the usual policies and specifically provided: “Termination of this agreement within the probationary period shall be at the discretion of the organisation and in the event of such a termination you will receive 4 weeks’ notice and not the notice period provided for in the clause entitled ‘Termination’ below.”  However, the Worker confirmed that prior to taking up direct employment he had already built-up an excellent track record through the work he had already undertaken for the Employer on a contract basis.  He also had a good working relationship with his new Line Manager, Mr A having worked with him previously.  The contract provided for a flexible working day so long as 40 hours per week were worked comprising of 8 hours per day between Monday and Friday.  He had taken a drop in salary from €45,000 to €36,000 per annum or €3000 gross per month.  As the Worker was unwell he did not commence work until mid-January 2021.  Mr A had provided him with a tablet including an app for logging work but he was not provided with any formal training on how to use the app.

The Worker had been working all of his contracted hours and exceeding his new business targets and there had been no issues with his employment until he received a call from Mr A on the afternoon of 18th February 2021 asking to meet as Mr A lived some distance away but was due to be in the City where he was based.  Mr A arranged to meet the Worker in a carpark where he asked him to sit into his car.  The meeting started off as a general chat but turned to Mr A questioning the Worker’s work hours and his start and finish times during the previous two weeks.  He said he was not happy with some of the times that were logged on his work tablet.  The Worker explained that he had covered all of his assigned calls and working hours.  He also informed Mr A that he was unhappy with his accusations and the fact that what had been intended as a chat had turned into a more serious meeting.  Mr A responded by stating that his job with the Employer was over and he was giving him four weeks’ notice of termination of his employment.  The Worker exited the car and informed Mr A that the next time he wanted to speak with him he was to have a HR representative present.  He took issue with the unprofessional manner in which this meeting had been conducted with no notice, no minutes being recorded, independent witness or HR representative present.  He was also of the view that this meeting could have been held remotely and recorded or minutes taken.

Later that day, the Worker received an e-mail and final communication from Mr A stating: ''Following our meeting today, I have informed (the HR Manager) of our conversation and she is expecting your call.  Until I hear any different, our conversation stands with you finishing with (the Employer) on the 18th of March 2021.  Either (the HR Manager) or myself will be in contact with regards to the next steps but as of now you are not requested to carry out any further duties on behalf of (the Employer).  I am sorry it has come to this but in line with the company’s vision I feel this is the best outcome for all involved.  Kind regards, etc.”  The Worker was cut off all of the Employer’s internal software and email systems with immediate effect.

The Worker contacted the HR Manager for the Employer the following morning of 19th February 2021 and informed her of his meeting with Mr A and being told that his employment was being terminated.  He expressed the view that the conduct of the meeting in a car in a busy car park was totally unacceptable and unprofessional considering the current Covid-19 restrictions and procedures that were in place.  In the course of this conversation, he asked for a copy of what he was accused of so that he could respond.  The HR Manager replied that she did not have the full details yet from Mr A and would be back in contact with him regarding same once she had followed up with Mr A.  Having received no response, the Worker contacted the HR Manager again on 23rd February 2021.  She replied that she no longer worked for the Employer and told him to follow up with another contact.  The Worker never received any follow-up from HR or anyone else on behalf of the Employer.  He referred this dispute to the WRC on 16th April 2021. 

The Worker contended that he was unfairly dismissed by his Employer without any basis for same.  In particular, there was no adherence to any fair procedures or process whatsoever and he had not been afforded an opportunity to defend himself in relation to any assertions being made by Mr A.  He surmised that difficulties operating the app may have caused Mr A to take an adverse view of his time-keeping and he may have wanted him to start work earlier in the day.  However, his contract provided that his working hours were flexible, he was working his contracted hours and he organised his timetable to suit the clients.  He further speculated that Mr A may have been of the belief that he was going to take up work elsewhere and wanted to terminate his employment first.  He was also of the view that he had been used for his contacts and having exhausted them to open up new accounts for the Employer which could be maintained by other employees he was dispensed with.  The Worker was paid in lieu of four weeks’ notice and out of work until 31st May 2021 during which time he was in receipt of social welfare.  Fortunately, he found suitable alternative employment with a higher salary.  He suffered indignity and financial loss as a result of his dismissal and seeks compensation along with vindication of his employment record and good name. 

Summary of Employer’s Case:

The Employer did not attend the hearing and did not proffer any evidence in defence of this dispute. 

Findings and Conclusions:

This is an unfair dismissal complaint where the Worker has less than one year’s service required for a complaint under the Unfair Dismissals Acts, and hence has referred the matter as a dispute to the WRC under Section 13 of the Industrial Relations Act 1969.  In this respect, I am guided by S. I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures), which requires that the procedures for dealing with workplace disciplinary matters (reflecting the varying circumstances of enterprises / organisations) must comply with the general principles of natural justice and fair procedures as confirmed in jurisprudence.  Notwithstanding that the employment relationship has usually ceased in such disputes, there are numerous examples of the various employment fora recommending awards of compensation in respect of such dismissals (with less than one year’s service required for a complaint under the Unfair Dismissals Acts) where there has been a breach of fair procedures.  In particular, the Labour Court has consistently found that employers are required to afford due process to employees before a decision to terminate employment is taken where there is less than one year’s service.  

In the instant dispute, I found the Worker to be an impressive witness and his account of the circumstances giving rise to his dismissal to be wholly credible.  I am satisfied that for whatever reason the Employer saw fit to terminate his employment on 18th February 2021 without adherence to any procedures whatsoever.  Whilst there remains some legal uncertainty as to the level of fair procedures to be afforded to an employee still within their probation period, the Worker in this instance had already established a proven record with the Employer whilst on contract and in my view was entitled to due process despite the short tenure of his employment.  On the balance of probabilities, I am therefore satisfied that there has been a complete absence of fair procedures and natural justice as required byS. I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) and jurisprudence.  In the instant case, I fully accept that this Worker experienced indignity and some financial loss as a consequence of the Employer’s unilateral decision to terminate his employment without explanation or due process.  The unprofessional manner in which the Worker was informed of the termination of his employment by his Line Manager in a car during a pandemic without adherence to any fair procedures including prior notice, opportunity to have someone attend with him, provision of reasons for his dismissal and opportunity to appeal are particularly egregious.  Fortunately, the Worker is very able and resourceful and found alternative and better paid employment within three months thereby minimising his financial losses.

Unfortunately, there remains a common misconception amongst a minority of employers that fair procedures are not required when an employee has less than one year’s service and they can simply be dismissed without due process, perhaps based upon a misapprehension that there is no legal exposure.  Regardless of length of service, termination of employment without due process or explanation thereby allowing an employee to leave a position under a cloud can have a detrimental effect upon their reputation, prospects of finding further employment and career development.  As a matter of basic fairness, human dignity and respect it is therefore incumbent upon employers to afford due process to all employees in relation to the termination of the employment regardless of the underlying circumstances. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  In light of the above, I recommend that within 42 days hereof, the Employer makes an ex gratia payment of €6,000 to the Worker in compensation for the manner in which he was dismissed.  I also strongly recommend that the Employer’s management undergo human resources training in relation to its statutory obligations towards its employees and update its practice and procedures accordingly.

Dated:  29th September 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words: Section 13 of the Industrial Relations Act 1969 – termination of employment with less than one year’s service without stated reason and due process – S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) – breach of fair procedures and natural justice