ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039831
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | An Employer |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969 | CA-00051403-001 | 29/06/2022 |
Date of Adjudication Hearing: 14/02/2023
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The employee was employed by the employer from on or about 24th September 2021 until his dismissal on 30th May 2022. The dispute relates to an alleged unfair dismissal referred under the Industrial Relations Act, 1969 in circumstances where the employee did not have the requisite service to bring a complaint in accordance with the provisions of the Unfair Dismissals Act, 1977. |
Summary of Employee’s Case:
The employee contends that he was being asked to carry out the duties of a Rigger on 30th May 2022 and refused to do so on the basis that he was not qualified to carry out those duties as he was a General Operative. (G.O.). The employee stated that he was then sent to the office where he was informed that the refusal to carry out duties in another area of the business amounted to gross misconduct and his employment was being terminated. The employee contends that the dismissal is unfair. |
Summary of Employer’s Case:
The employer stated that the employee commenced employment as a G.O. on or about 24th September 2021. The employer stated that the employee was initially on probation for six months which was extended as a result of performance related issues and concerns relating to the employee’s absence. In respect of the issue leading to the employee’s dismissal, the employer contends that the employee refused to carry out a management instruction on 30th May 2022 when he was asked to carry out tasks appropriate to his grade in another area of the business. The employer contends that the employee was well aware that he could be asked to work in other area of the business if required and had done so on many occasions. The employer contends that the employee’s actions on the day in question amounted to gross misconduct and his employment was terminated as a result. |
Findings and Conclusions:
The within dispute concerns an alleged unfair dismissal. It is not disputed that the employee was on probation at the time of his dismissal. The issue which led to the dismissal relates to the employee’s refusal on 30th May 2022 to carry out duties in another area of the business. The employee stated that he was a G.O. yet he was being requested to carry out the work of a Rigger, whereas the employer stated that he was being requested to work in a different area albeit at duties appropriate to the G.O. grade. The employee attended the HR Department on the same day and addressed the issue of his refusal to carry out tasks that were not within his skill set or qualifications. The employee was told that his refusal to carry out management instructions amounted to gross misconduct and his employment would be terminated. The employee’s employment ended on that day and there was no further contact between the parties until 7th June 2022 when the employee sought a letter confirming the termination of his employment for the purposes of claiming Job Seekers Benefit. The employer did not respond to this request. Having considered the submissions of both parties to this dispute, I find that despite being on probation, the employee was entitled to fairness in respect of his dismissal. It appears that the complainant was dismissed without any disciplinary procedures being invoked by the employer for the incident of the 30th May 2022. While there may be some suggestion that the employee was not dismissed as a result of the meeting with the HR Department on 30th May 2022, I find that his employment was terminated on that date. From the submissions of the parties there were previous issues with the employee’s performance and attendance which resulted in an extension of the probationary period yet on the 30th May 2022 the employer dismissed the employee having decided his behaviour amounted to gross misconduct, without initiating the disciplinary procedures or affording the employee an opportunity to respond within a formal process. On that basis I find that the employee was unfairly dismissed and that he should receive compensation as a result. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer pay the employee €3,000 in compensation which I consider to be fair and reasonable in all of the circumstances of this dispute. |
Dated: 19-07-2023
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair dismissal, Industrial relations referral, disciplinary process |