Complainant

Respondent

Parties

Raymond  Durran

M50 Skip Hire & Recycling

Complainant

Respondent

Anonymised Parties

Representatives

Hanni Lamb

Peninsula Group Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055116-001

15/02/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was not represented and made his own case. The Complainant gave an oral account of his employment with the Respondent company. The Complainant relied on the narrative set out in the workplace relations complaint form and on the statement that he had forwarded to the WRC on the 7th of June 2023 and which said Statement was shared (by an Officer of the WRC) with the Respondent’s General Manager. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was Unfairly dismissed in circumstances where his Employer determined that his performance was below expectations and was no longer financially viable.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing.  The Respondent provided me with a comprehensive written submission on the day of hearing. I have additionally heard from a number of witnesses for the Respondent including the company Director and the General Manager. All evidence was heard following an Affirmation. The Respondent witnesses were challenged as appropriate by the Complainant.

The Respondent rejects that there has been a Dismissal and instead he asserts that the complainant voluntarily resigned his position in circumstances where he was not satisfied with his own role.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The complainant herein came to the Respondent company with a background in sales and marketing. The Respondent Managing Director Mr. B. Redmond was responsible for the recruitment of the Complainant and was hopeful that the complainant would be able to develop strong sales in the company. The Complainant started in September 2020. The Company is involved in waste collection (through bins and skips) and re-cycling through its waste facility operation in Santry). This is a highly competitive market, and the Respondent company is competing against some big players. The Complainant and the MD developed a strategy from the outset. The general plan was for getting name recognition and bringing clients in with attractive discounts and other incentives. It is worth noting that the Complainant had a flat wage of €600.00 per week and this was not a target or commission-based position. I note that the Complainant was also provided with a company van.

It is worth noting that the complainant only seemed to have meaningful interaction with the MD in the course of this employment. The General Manager who generally oversaw induction, training and Contracts etc. appears to have had no significant role in this regard.

Surprisingly no Contract of Employment was ever provided to the Complainant in the course of his 18 months in position. This is very surprising in the context of this being a company with about 40 employees. There is no suggestion the other employees were without formal Contracts of Employment.

It seems that the MD opted to personally oversee the Complainant’s performance and had weekly meetings to see how things were progressing. The Complainant was expected to be on the road and cold-calling into industrial sites, and was also expected to follow up on any leads provided by the MD. There is some disagreement about how well the complainant was or was not doing in his position. I can see that one big problem was the fact that the country was still in the grips of the pandemic when the Complainant was engaged, and therefore many businesses were still going through a phase of stop/start.

The MD gave evidence that the sales and marketing project was not taking off in a way that he would have liked throughout 2021. However, he said that the the Complainant was popular with the staff and was a good addition to the team overall. The MD was also aware that the complainant was in the process of buying a house and that he was relying on the certainty of this salary for mortgage approval.

Things took an unexpected turn in early 2020 when the Complainant confirmed that he would have to take an extended break from the workplace as he had health issues that would involve surgery and a protracted recovery period. An operation was scheduled for March 2022 and the Complainant was on medication prior to this operation and was therefore not out and about as much as might be required of him. I have been asked to accept that a reasonable accommodation was afforded the Complainant in these circumstances and to commend the Employer in this regard. This is not, I must note, a disability case.

The Complainant was out on extended sick leave from March through June of 2022. There was no sickness pay scheme in operation withing the company and the Complainant was on disability payments in this period.

On balance, I would accept the Complainant’s assertion that that after an extended period of low pay (through the social welfare system) he was anxious to return to full pay. The Complainant pointed out that he had a son as well as mortgage liabilities.

In his evidence, that Complainant asserted that the atmosphere had noticeably changed on his return. He felt that his Employer was unhappy about the extended absence from the workplace. The Complainant pointed to the fact that he had had his company van taken from him as evidence of the general displeasure. Whilst he was given a replacement car it was old and dirty.  The Respondent MD on the other hand said he was most solicitous of the Complainant on his return. He was hopeful that after well over a year and a half of engagement the Complainant would at last be able to settle into a period of real progress.

By August 2020 the MD felt that no real progress was being made. He said that the complainant kept making excuses for the failure to land many new clients. People were on holiday andpeople did not want to change service provider was what he was hearing from the Complainant. The MD recommended that the complainant should try and perform an email drop across the city rather than driving out and performing cold calls. The Complainant indicated in evidence that he saw this direction as both silly and punitive and he would never have expected it to gain much traction.

The weekly meetings seemingly became more and more tense with accusations of having been shouted at made by the Complainant though denied by the Respondent.

Things came to a head on the 16th of September 2022 when the Complainant and the MD met in the usual way to review the sales. There are two conflicting accounts at what was said in this meeting. The Complainant says that he was told that things weren’t working out and the employment was being terminated. He was told, he says, that rising fuel costs and the overall expense of running the waste facility were factors being taken into consideration. The Respondent appears to be suggesting that the Complainant himself was looking for an out. He says that the Complainant seemed lost and overwhelmed by the job and wanted to leave. The Respondent suggested that he offered the Complainant another role in the company which the Complainant denies.

What ever happened the employment came to an end in the course of that meeting with the Complainant getting paid up front for a two-week period of notice. Once again, I return to the absence of the basic instrument governing the relationship herein – the Employment Contract.

On balance, I am satisfied that the Complainant did not want to lose his job and that his employment was terminated in circumstances where the Complainant had not been performing as well as was expected of him and also against a backdrop of rising cost which was well documented in 2022. I accept that the Complainant was blind sided by this decision which was not preceded by any process which might have put him on notice of poor performance being an issue. In fact, it is worth noting that there is no paperwork or documentation from before during or after the cessation of this employment which tends to throw light on what transpired or the reasons for it.  Nor, it must be said, was the Complainant made aware that the company finances were such that cost cutting measures were required.

I am satisfied that the circumstances of this termination of employment amount to an Unfair Dismissal for the purpose of the Acts.

I understand that the Complainant succeeded in obtaining alternative employment some five or six months after the expiration of the notice period.

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

CA-00055116-001 – The Complainant herein was Unfairly Dismissed and I award €7,500.00 compensation for any financial loss attributable to the dismissal.