Employee

Employer

Anonymised Parties

General Operative (Spotter)

A Recruitment Company

Representatives

Act

Dispute Reference No.

Date of Receipt

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

CA-00043250-002

25/03/2021

The employee commenced employment with the respondent on 19/01/2021 as a “spotter”.  This role involved assisting hoist drivers by ensuring that the drivers operate and lifting in a safe manner.  He was informed on the evening of 19/02/2021 that the role was no longer available.  He submits that the never received any details of his terms and conditions.  He submitted his complaint and dispute to the WRC on 25/03/2021.  His rate of pay was €17.97 per hour with an additional 2.5 hours travel time each day.  The employer denies that he was unfairly dismissed as he was dismissed in line with the probation and other conditions outlined in his contract of employment.

In November 2020 the employee noted a job advertised by a recruitment company for a spotter on one of their client sites.  This was advertised as “a long-term position with excellent conditions on site.”  In January 2021 the employee was offered the job with a start date of 19/01/2021.  He accepted and handed in his notice to his then employer.  This role suited him as he could access the site easily with public transport.  On 19/02/2021 he was told at the end of his shift that there was no more work available.  He was offered another job in the city centre, but he turned it down as he deemed the role “demeaning” and there would be a considerable cost in terms of travel, parking and longer working day.  The employee also submits that his employer refused to give him a letter saying that he was let go.  He obtained alternative employment about two months after his dismissal. 

The employer is a recruitment company with particular specialisation in the construction sector.  The employee was employed by the respondent on 19/01/2021.  He was employed as a “Category B” worker and this was analogous with the role of general operative/labourer.  The employee was assigned to one of their client sites.  On 19/02/2021 the employer told by the client that there was no further work for them on that site and so they had to make decisions.  There were approximately five to ten employees affected by this decision.  The employee was offered a role with similar pay and conditions and based in a city centre location.  He turned this down and, in that context, he was dismissed.  It was submitted on behalf of the employer that the contract of employment made a number of provisions which are relevant to this dispute:

“As we are a recruitment agency, the location can vary depending on client demands.

However, the Organisation reserves the right to assign you to carry out your work, either on a temporary or permanent basis, at such other locations in Ireland (or outside Ireland), as the Organisation may reasonably require, from time to time.”

“Probationary Period”

“For the first six months of your employment, you will be employed on a probationary basis. Your performance will be reviewed during and at the end of six months and if satisfactory, your appointment will be made permanent. The Organisation retains the right to extend your probationary period, subject to a maximum probationary period, inclusive of notice, of 12 months should this be deemed necessary, and this will be done following discussions with you. It is hereby mutually agreed that employment can be terminated by either party giving one week’s written notice during the probationary period or, in the case of the Organisation, one week’s salary in lieu of such notice. The organisation reserves the right to apply a modified disciplinary procedure during the probationary period”.

It was submitted on behalf of the employer that the employee was on probation and therefore could not be unfairly dismissed.  It was also submitted by the respondent that the provisions of the Unfair Dismissals Act did not apply as the complainant had less than 12 months service. 

It is the employers position that any work they provide is dependent on the needs of the clients who use their services. It is for that reason that the mobility and flexibility provisions are included in the contract of employment.

In this case the client contract was ended on 19/02/2021 and the employee was offered a similar role on another site, but he did not accept.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employee is seeking adjudication in relation to his dismissal under the provisions of the Industrial Relations Acts as he does not have the requisite service to bring a claim under the Unfair Dismissal Acts. The employer did not submit any objection to an investigation by an Adjudication Officer under Section 13 of the Industrial Relations Ac 1969 within the required timeframe.  The employer relies on the fact that the employee was on probation at the time of his dismissal.  Having reviewed the contract submitted by the employer it is clear that the termination of employment during the period of probation was conditional on the employees performance.  At the hearing it was confirmed that there were no issues with the employee’s performance or conduct.  It is clear from this contract that this was intended to be permanent in nature.  The absence of any reference in the document to a temporary contract or fixed term or a date on which the contract expires also confirms this.

The fact that the employee was on probation does not negate his entitlement to fair procedures.  Given the impact that a dismissal has on an employee in terms of loss of income and potentially reputation, an employer should ensure that a decision to dismiss is not taken lightly even if the employee is on probation.  The fact is that the employer lost a significant contract.  The employer did not provide the hearing with any evidence in relation to the ending of the client contract.  

As the employer is a specialist recruitment agency for the construction sector then more time should have been afforded to the employee to look at other suitable alternative roles.  The contract of employment on with the employer relies is clear that “It is hereby mutually agreed that employment can be terminated by either party giving one week’s written notice during the probationary period or, in the case of the Organisation, one week’s salary in lieu of such notice”.  The employee was not paid in lieu of notice.

I am satisfied that the employers handling of this matter clearly breached the employee’s right to fair procedures and natural justice.  There was inadequate consultation and engagement with the employee in relation to the issues which arose in this case.  I recommend that the employer pay the employee the sum of €3,800.

Unfair dismissal.  Industrial Relations Act